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56 Ct. Rev. 80 (2020)
Relationship Advice

handle is hein.journals/ctrev56 and id is 80 raw text is: CANON CONVERSATIONS - A COURT REVIEW COLUMN Relationship Advice Cynthia Gray t It is a judicial ethics truism that judges are not automatically disqualified from cases involving someone they know. How- ever, several recent judicial discipline cases indicate that at least some judges have misinterpreted that to mean that they never have to disclose anything less than a familial relationship with an attorney, much less disqualify if someone they vacation with, for example, appears in a case.' While blood, marriage, and domestic partnership ties are rel- atively easy to define, friendship is variable and ineffable. Based on caselaw and advisory opinions, a judge should consider the following factors to determine whether a relationship with a particular attorney diverges so significantly from the judge's rela- tionships with other attorneys that disqualification or at least dis- closure is required:2 The frequency of the social contacts between the judge and the attorney, The length of their social relationship, - Whether the relationship is continuing, - Whether their families are included in their socializing, - Whether they visit each other's homes, - Whether they vacation together, - Whether they socialize only in a professional context, - Whether they socialize in public or private settings, Whether they socialize as part of a large group, a small group, or one-on-one, Whether there are additional circumstances such as a current or past financial, political, work, or amorous relationship, Whether they have exchanged gifts or hospitality, Whether they have plans for future get-togethers, and Whether they are friends on Facebook or otherwise connected on social media:3 The timing of the friend request and acceptance; The frequency of the judge's social media contacts and communications with the individual; The substance of the judge's social media contacts and communications with the individual; The number of friends the judge has on the page; The nature of the judge's social networking account (for example, whether it is a personal profile or a professional page); The judge's practice in deciding whom to friend (in other words, whether the judge is very exclusive or more inclusive when deciding whom to add); and Whether the judge and the individual have frequent, personal contacts in real life. Footnotes 1. In In the Matter of Gorski, 937 N.W2d 609 (Wisconsin 2020), for example, a judge presided over a small claims cases within a month of taking a week-long golfing trip to Ireland with an attorney in the case and without disclosing the trip of any other aspect of the rela- tionship to the other party See also Public Admonishment of Mason (California Commission on Judicial Performance December 3, 2019) (https://tinyurl.com/u3ejkma) (failing to disclose personal and sustained relationship with an attorney every time the attor- ney appeared before him); Inquiry Concerning Bailey, Decision and Order (California Commission on Judicial Performance February 27, 2019) (https://tinyurl.com/y468x7zm) (ordering defendants in five cases to use an alcohol monitoring service without disclosing that his son worked for the company and that the owner was a friend and ordering a defendant to pay restitution to the company contrary to the law and based on a letter from his son; appointing an attorney as a special master without disclosing that the attorney was a personal friend); In re Brennan, 929 N.W2d 290 (Michigan 2019) (failing to disclose the extent of her relationship with a police detective who was a witness in a trial over which she presided; fail- ing to disclose the extent of her relationship with an attorney when the attorney or her law firm appeared in cases over which the judge presided). 2. Gray, Disqualification and Friendships with Attorney, Judicial Con- duct Reporter (Fall 2009) (https://tinyurl.com/uqa6rwb). 3. See California Judges' Association Advisory Opinion 66 (2010) (https://tinyurl.com/7bozntm) (if a judge has created a very personal profile on a social media site and adopted an exclusive policy regard- ing whom to include on the site, the judge should disqualify if one of those he has chosen to friend appears as an attorney in a case); Utah Informal Advisory Opinion 2012-1 (http://tinyurl.com/ mywqho5); (disqualification is not automatically required simply because a judge and a lawyer are friends on Facebook; the fre- quency and substance of the contacts will be determinative)ABA Formal Opinion 462 (2013) (https://tinyurl.com/b3shjkp) (if a social media connection includes current and frequent communication, the judge must very carefully consider whether that connection must be disclosed). Finding that the extreme facts of this case rebut the presumption of judicial impartiality and establish a due process violation, the Wisconsin Supreme Court held that a serious risk of actual bias was created in a custody dispute when, while the decision was pending following a contested hearing, the trial judge accepted a Facebook friend request from the mother and she inter- acted with him, including liking, loving, or commenting on at least 20 of his Facebook posts. She also shared and liked several third-party posts related to domestic violence, which was an issue in the case. In re Paternity of B.J.M., 944 N.W2d 542 (Wisconsin 2020). The Court affirmed the decision of the court of appeals reversing the trial judge's denial of a motion for reconsideration of his decision in the mother's favor and remanding the case with direc- tions that it proceed before a different judge. 80 Court Review - Volume 56

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