Tuesday, October 20, 2009

Judge Faces Public Reprimand After He “Friends” Attorney on Facebook & Googles Litigant

Earlier this year, the North Carolina Judicial Standards Commission publicly reprimanded a judge for violating the Code of Judicial Conduct after he “friended” an attorney involved in a custody hearing before the court and Googled one of the parties involved in the dispute.

It all started when Judge B. Carlton Terry, Jr. met with counsel in chambers, and the conversation briefly turned to Facebook when the husband’s attorney, Charles A. Schieck, mentioned the social networking web site. Later, Judge Terry friended Schieck, which allowed the two to view each other’s profiles.

It seems the ethics opinion may have been written by someone relatively unfamiliar with Facebook, as the opinion doesn’t explain the full context of the “communications” that ensued. If you’re Facebook savvy, skip the portion of this blog post between the asterisks below.

Let’s review a few “Facebook basics.” I’ll describe this in first person to make it a little less awkward.
• “Friend”: Generally, I have to individually approve other users’ access to the content on my profile. (This can be more narrowly restricted on very individualized bases, but let’s stick with the general overview: a user generally must approve – or “friend” – others before they can see the user’s page). Once I’ve approved you (or you’re approved me, depending on the direction of the request), you’re officially my Facebook Friend. You see my profile and I see yours.

I have various means of communicating with my Friends. As to the potentially relevant methods for this case, consider:
• Status Updates: A status update is literally an update on my status (“Thank you, Captain Obvious,” right?). It’s a name, followed by a fill-in-the-blank. My status appears at the top of my profile, and all of my Friends can see it and/or comment on it. It’s essentially a way to communicate something to all of my Friends. Here’s an example via screenshot from Facebook:

• Wall Posts: I can post comments or pictures on any of my Friends’ walls, and my Friends can post on my wall. Our own status updates also appear on our own walls. Generally, anyone who can view my profile can view my wall, and vice versa. (Again, this can be changed – but I’m stating the general rule.) Unlike communicating with all of my Friends (i.e., Status Update), I can communicate more directly with one Friend, but it’s still published for all of his or her Friends to see. i.e., I can post something on Jill’s wall, and all of her Friends can see what I say, and Jill or any of her Friends might respond to it – but they’d be doing so on Jill’s profile page.

• Message: A Facebook Message is one of the more private forms of Facebook communication. It’s almost like an email, in that I can send a Message to one of my Friends and it goes to that Friend’s inbox. No one else sees the message.

• Facebook Chat: Also a private communication, but unlike email, this is like other “chat” platforms and allows for real-time communications.

(We now return you to your regularly scheduled blog post . . . )
Schiek first made a comment on his own profile page about needing to “prove a negative” -- a comment he had also made earlier that day during the hearing. The opinion says the judge saw Schiek’s post, and “Judge Terry posted on his ‘Facebook’ account, he had ‘two good parents to choose from’ and ‘Terry feels that he will be back in court’ referring to the case not being settled.” Although the opinion seems to imply there was a relatively direct communication, this explanation suggests to me that the judge made these comments by updating his own status (rather than responding directly to Schiek). Scheick then posted, “I have a wise Judge.” Again, this might reasonably suggest to a more frequent Facebook user that Scheick made this statement by updating his own status (rather than directly replying to the judge). The opinion certainly never suggests the two communicated by Messaging each other, or by using the Chat feature.

The opinion goes on to note that during a break in the proceedings the next day, the judge told Conley about these Facebook “exchanges.” Use of the word “exchanges” intrigues me – as it suggests a relatively direct dialogue. While Schieck may have updated his status in apparent response to Judge Terry’s status updates (or vice versa), it wasn’t necessarily directed at the other and it wasn’t a private communication you might generally think of as the more typical ex parte communication.

Later that day, the judge updated his profile to say he was “in his last day of trial.” Schieck wrote, “I hope I’m in my last day of trial.” Judge Terry responded, “you are in your last day of trial.” This looks like more direct communication, but we’re still not sure whether Schieck posted his comment on the judge’s Wall in response to the judge’s status . . . or whether Schieck posted his comment on his own Wall, to which the judge responded directly to Schieck on Schieck’s Wall . . .

Regardless of the particulars of the so-called “communications” (details which I think should have been better fleshed out), the Commission didn’t like the online activity.

Following a motion by Conley (wife’s lawyer), the North Carolina Judicial Standards Commission publicly reprimanded Judge Terry for having ex parte communications on Facebook with Schieck during the pendency of the custody matter. This is particularly interesting, given that we're not really sure how direct the communications were.  Nevertheless, the back-and-forth (even if not direct) may easily have suggested some level of impropriety. The Commission also reprimanded the judge for independently gathering evidence by Googling one of the parties. On this issue, note that the 2007 ABA Model Code of Judicial Conduct contains a new provision under Rule 2.9(C) that prohibits a judge from investigating facts in a matter independently; the comment to the rule provides that the prohibition extends to a judge’s use of electronic research (such as a Google search).

The Commission’s opinion can be found here.

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