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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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