Thursday, December 17, 2009

For Judges on Facebook, Friendship Has Limits

In a recent opinion, the state’s Judicial Ethics Advisory Committee decided it was time to set limits on judicial behavior online. When judges “friend” lawyers who may appear before them, the committee said, it creates the appearance of a conflict of interest, since it “reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”


A very curious phrase was used in this policy decision - "the committee’s majority concluded that the possibility of the appearance of impropriety required that they recommend against friending."

Many people have the perception that the legal process is like that portrayed on television -  Perry Mason, Law & Order, etc. - in other words, an adversarial process. But the reality of the legal process is far different.

Material in introductory criminal justice classes include a discussion of the courtroom work group - those individuals who come together to put the process into motion. This group includes judges, prosecutors, and defense attorneys. But the process is rarely adversarial.

Somewhere between 60% and 90% of cases are plea bargained. When the current case is disposed of, the court room work group moves onto the next one. But the work group is much more complex, starting with the fact that many of the participants when to school together, may have worked together in other settings, and may even socialize together.

While serving as a police officer, I was elected as secretary of the Fraternal Order of Police. I remember being approached by a local defense attorney about making a campaign contribution to a criminal court judge who was running for re-election. The fact that a defense attorney who litigated cases in front of the judge was soliciting a contribution from the local police illustrates the complexity of the relationships among the members of the courtroom work group. But did this case go beyond appearance of impropriety?

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