by Isabelle M. Smith and Todd W. Smith
The close relationship between the Orange County Bench and Bar often is celebrated by local attorneys and judges alike. And rightly so, as this unique bond is part of what makes practicing law in Orange County so appealing to many of us. We mingle with judges at local Bench and Bar functions, get to know their spouses and families, and sometimes even socialize with them outside of these events. Orange County lawyers even tout their close relationships with the local judiciary as an asset to clients and potential clients. But when do social interactions between a judge and a lawyer go too far? And how can we minimize the risk of disqualification of a judge based on these relationships and interactions?
We begin with the legal standards of disqualification and disclosure that potentially apply to social relationships between the Bench and Bar in California state court. Then, we consider a judicial ethics opinion in the area of online social networking which, by analogy, provides additional guidance in this murky area of the law.
Under California Civil Procedure Code Section 170.1, a judge shall be disqualified if:
(i) The judge believes his or her recusal would further the interests of justice.
(ii) The judge believes there is a substantial doubt as to his or her capacity to be impartial.
(iii) A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.
Cal. Civ. Proc. Code § 170.1(a)(6)(A) (West 2011). In addition to these criteria warranting mandatory disqualification, a judge’s “[b]ias or prejudice toward a lawyer in the proceeding may be grounds for disqualification.” Cal. Civ. Proc. Code § 170.1(a)(6)(B) (West 2011) (emphasis added).1
Moreover, Judicial Canon 2(B)1 provides that “[a] judge shall not allow family, social, political, or other relationships to influence the judge’s judicial conduct or judgment, nor shall a judge convey or permit others to convey the impression that any individual is in a special position to influence the judge.” Cal. Code Judicial Ethics, Canon 2B1.
In applying these standards, courts recognize that “the proper performance of judicial duties does not require a judge to withdraw from society and live an ascetic, antiseptic and socially sterile life.” UFW of Am. v. Super. Ct., 170 Cal. App. 3d 97, 100 (1985). In People v. Carter, 36 Cal. 4th 1215 (2005), a criminal defendant, relying on Section 170.1(a)(6), moved to disqualify a trial judge who had a personal relationship with the prosecutor in the case. The judge had worked with the prosecutor for several years, their families had gone camping together along with other families, they had “sporadic” social interactions at parties, and the judge had performed the wedding of the prosecutor’s daughter at the daughter’s request. Id. at 1241. The California Supreme Court affirmed the denial of the motion to disqualify, finding that the judge had no obligation to recuse herself in spite of her “prior professional and casual social relationship with [the prosecutor].” Id. at 1243.2
Disclosure Obligations and the Duty to Decide
A judge’s disclosure obligations in this context are similarly subjective and devoid of any bright line test. “A Judge shall disclose on the record information that is relevant to the question of disqualification under Code of Civil Procedure Section 170.1, even if the judge believes there is no actual basis for disqualification.” Cal. Code Judicial Ethics, Canon 3E2. But, judges should not confuse the standard for disclosure with the more stringent standard applicable to disqualification.
“Some judges persist in declaring themselves to be disqualified whenever they would feel ‘uncomfortable’ deciding a case.” Cal. Jud. Ethics Comm. Op. No. 63 at 2. In addressing the situation where a judge and a lawyer are friendly outside the courtroom, Opinion 63 provides that “[a]lthough Canon 3E2 may require the judge to disclose these facts, they are not disqualifying unless they meet one of the tests of disqualification set forth in Civil Procedure Code Section 170.1.” Id. (emphasis added). Judges, after all,
are tasked with a “duty to decide” above all else. Op. No. 63 at 2. “The duty of a judge to sit where not disqualified is equally as strong as the duty not to sit when disqualified.” Carter, 36 Cal. 4th at 1243, quoting UFW of Am., 170 Cal. App. 3d at 100 (internal quotation omitted).
Lessons from Social Media
Given these subjective standards and the absence of a bright line test, how are lawyers and judges to navigate their social interactions while still upholding the integrity and fairness of the judicial process? A judicial ethics opinion in the field of social media provides additional guidance that, by analogy, is instructive in evaluating “offline” interactions between the Bench and Bar.
On November 23, 2010, the Judicial Ethics Committee of the California Judges Association issued Opinion 66 titled, “Online Social Networking.” Although focused on the ethical issues that arise when judges participate in online social networking sites like Facebook, Myspace, and Twitter, much of the guidance provided in Opinion 66 equally applies to socializing in general between judges and lawyers. “It is the nature of the interaction that should govern the analysis, not the medium in which it takes place.” Cal. Jud. Ethics Comm. Op. No. 66 at 11.
The particular concern surrounding online social networking between attorneys and judges is the “appearance of bias or undue influence.” Id. at 7. Among other dangers, online social interactions risk violating judicial canons prohibiting a judge from “convey[ing] the impression that any individual is in a special position to influence the judge” or engaging in extrajudicial conduct which may “cast reasonable doubt on the judge’s capacity to act impartially.” Cal. Code Judicial Ethics, Canons 2B and 4B1.
Opinion 66 focuses on appearance issues of judges and lawyers being “friends” on social networking sites, opining that the more personal the nature of the online relationship, the greater the likelihood that the online “friendship” would create the appearance that the attorney would be in a special position to influence the judge, or cast doubt on the judge’s ability to act impartially. Op. No. 66 at 7. Among the factors to be considered in determining the propriety of the online interaction are the following:
- The nature of the social networking site (the more personal the nature of the forum, the greater risk of appearance of improper influence or partiality);
- The number of friends on the page (the greater number of “friends” on the forum, the less likely one could reasonably perceive undue influence);
- The judge’s practice in determining whom to include (the more “inclusive” the forum, the less likely it is to create impression of bias); and
- How regularly the attorney appears before the judge (the less likely an attorney is to appear before a judge, the more permissible the interaction).
Op. No. 66 at 8.
The Opinion portrays two hypothetical situations, including one which exemplifies a prohibited online interaction and one where the interaction is permissible. In an example of prohibited conduct, a judge “friends” a former law school classmate on the judge’s personal social networking site, which
includes “family, old friends and a few colleagues” and is used to post vacation photos and other personal information. By contrast, a judge who “friends” a lawyer on a social site the judge uses “to facilitate professional interactions” and communicate with members of a legal organization, such as a bar
association, is deemed permissible. Id. Notably, both the social networking and professional networking examples assume the lawyer may appear before the judge at some future date.
If a lawyer has a case pending before the judge, both interactions would be impermissible. Id. at 10-11.
Application to “Offline” Social Interactions
These same principles can be used to guide the “offline” social interactions between lawyers and judges. Where a lawyer may appear before a judge, he or she should tread carefully in interacting with a judge beyond mere socializing at Bar functions and other professional events, including more personal and exclusive interactions with judge’s family and close friends. These relationships and interactions are more likely to create the appearance that the lawyer is in a special position to influence the judge, or may cast doubt on the judge’s ability to act impartially. Additionally, where a lawyer in this scenario has a case pending before the judge, it risks disqualification and, at a minimum, the relationship should be disclosed.3
The above notwithstanding, it is important to recognize that friendships and social interactions between the Bench and Bar not only are permitted, they are encouraged. “Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives.” Cal. Code Judicial Ethics, Canon 4A Commentary. Indeed, the relationship between the Orange County Bench and Bar is part of what makes the practice of law so enjoyable for so many of us. In navigating these relationships and social interactions, however, both lawyers and judges must be mindful of the standards and principles described above to minimize any negative impact on current or future cases.
- The federal judicial disqualification statute 28 U.S.C. 455 is modeled after the American Bar Association Model Code of Judicial Conduct, and requires, in relevant part, that a judge disqualify himself “in any proceeding in which his impartiality might reasonably be questioned” and “[w]here he has a personal bias or prejudice concerning a party . . . .” 28 U.S.C. 445(a) & (b)(1).
- See Jeremy Miller, Judicial Recusal and Disqualification: The Need for a Per Se Rule on Friendship (Not Acquaintance), 33 Pepp. L. Rev. 575, 595-611 (2005/2006) (discussing the “present lack of a usable standard regarding friendship recusal” and examining the treatment of friendship recusal in U.S. Supreme Court cases (id. at 595-602), including the notorious Cheney v. U.S. Dist. Court for the D.C., 541 U.S. 913 (2004) (mem. of Justice Scalia), in which Justice Scalia refused to recuse himself (id. at 609-611), Ninth Circuit cases (id. at 603-605), and California cases (id. at 605-607)).
- See Miller, supra note 2, at 612-614, examining hypotheticals involving varying degrees of social interactions between judges and lawyers and concluding that a judge’s attendance at several bar events each year, co-lecturing with a few lawyers, and chatting with lawyers he sees in court are “positive acquaintances [that] do not rank as friendship for the purpose of recusal.” In contrast, regular “poker buddies” and “golf foursomes” should be characterized as friendships mandating friendship recusal. Id.
Isabelle M. Smith is a freelance attorney with Montage Legal Group, LLC. Ms. Smith formerly was a partner at Howrey LLP in Irvine practicing in Howrey’s Commercial Litigation Group, focusing on attorney professional liability and securities litigation. She can be reached at Isabelle@montagelegal.com.
Todd W. Smith is a litigation associate at Morgan Lewis & Bockius LLP in Irvine. Mr. Smith also practices in the area of attorney professional liability and securities litigation. You may contact him at email@example.com.