Really good guidance, but not good enough for some.

While I’m catching up on things I should have managed to write about sooner, ABA Formal Ethics Op. 488 is deserving of a few words. That opinion was issued back in early September of this year. What particularly brought it to mind now was that it covers one of multiple topics I was lucky enough to get to talk about last weekend at that PilotLegis member meeting I mentioned in a post last week.

Opinion 488 is a very well written opinion covering the landscape of what the consequences for judges should be in situations where they have some sort of relationship with lawyers or parties appearing before them. The opinion addresses this question with an eye toward what folks online refer to as IRL situations.

It divides the world for judges into three categories of relationships: (1) acquaintances; (2) friendships; and (3) close personal relationships. Having done so, it proceeds on a pretty straightforward basis to explain that if a judge and a lawyer, or a judge and a litigant, are just acquaintances, then the judge has no obligation to even make disclosure of that fact and certainly no obligation to decide to recuse themselves because they are disqualified from presiding. The opinion offers a fairly succinct proffered definition of what it means by the term “acquaintances” — “A judge and lawyer should be considered acquaintances when their interactions outside of court are coincidental or relatively superficial, such as being members of the same place of worship, professional or civic organization, or the like.” The opinion also makes clear that a judge and a litigant should be considered acquaintances under the same kinds of circumstances as judges and lawyers. As to the third category, “close personal relationships” the opinion explains that those require disqualification outright only if the relationship is a romantic one or what I’m going to call “unilaterally, aspirationally romantic.” Where the judge wants to have a romantic relationship with the person. As for the rest of the world of friendships and other close personal but non-amorous relationships, the opinion candidly admits that they are all pretty much fact specific as to whether disqualification is required or merely a disclosure on the record is what is required accompanied by an explanation of the grounds for why the judge believes they can still preside is appropriate instead.

I can manage to have some real fun criticizing ethics opinions from time-to-time so I can’t really begrudge others when they do. But this is one that I think gets things correct.

Two other prominent legal ethics experts, Karen Rubin and Alberto Bernabe, criticized this opinion in slightly different ways. Karen expresses disappointment that is does not do enough to provide what she called “needed” guidance about the impact of judges’ use of social media and connections with lawyers and litigants on questions of disqualification. Professor Bernabe mentioned that omission but was a bit more critical of the nature of the opinion as being an “it depends” and is largely “up to the judge” in the first instance.

I disagree on Professor Bernabe’s point because I think that is the very nature of the beast. And, I appreciate the opinion being candid about the exercise. I disagree with Karen Rubin for what might be two reasons, but might really just be one overall reason.

First, treating social media as something so important or different as to be deserving of its own space and separate treatment (I think) misses the larger point. A social media connection simply is just one piece of the overall puzzle of determining whether or not the judge and the person have an actual relationship that is a friendship or something less. Second, the opinion does address the topic – and does so in a way that is entirely consistent with my first point. It does this in footnote 11:

Social media, which is simply a form of communication, uses terminology that is distinct from that used in this opinion. Interaction on social media does not itself indicate the type of relationships participants have with one another either generally or for purposes of this opinion. For example, Facebook uses the term “friend,” but that is simply a title employed in that context. A judge could have Facebook “friends” or other social media contacts who are acquaintances, friends, or in some sort of close personal relationship with the judge. The proper characterization of a person’s relationship with a judge depends on the definitions and examples used in this opinion.

By simply acknowledging that it matters, but that it is no more dispositive of the relevant question than any other piece of the puzzle, I think that Opinion 488 handles it exactly the correct way. Stated another way, given the widely varying state opinions that Karen addressed in her much more timely post about this, I think the guidance needed from the ABA on the social media front was pretty much exactly what was in the footnote and nothing more. If that guidance is heeded, then perhaps state entities can start to “chill out” a bit about the trees and focus on the forest.