Originally published by Zach Wolfe.
Judge’s Facebook friendship with lawyer does not necessarily require recusal
As a Florida court recently acknowledged, everybody knows that Facebook friends are not necessarily close personal friends. That got me thinking of the classic song Everybody Knows by Leonard Cohen. The first verse:
Everybody knows that the dice are loaded
Everybody rolls with their fingers crossed
Everybody knows the war is over
Everybody knows the good guys lost
Everybody knows the fight was fixed
The poor stay poor, the rich get rich
That’s how it goes
Everybody knows
After that sunny beginning, the rest of the song takes an unexpected dark turn.
Getting back to the Florida case, the court in Herssein & Herssein v. USAA said the mere fact that a judge is Facebook friends with a lawyer for a party does not require recusal. The court reasoned that being friends on social media is not necessarily being friends in the “traditional sense.” Thus, the Facebook friendship “does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook ‘friend.’”[1]
Texas courts and the American Bar Association had already figured this out a few years ago.[2]
The conclusion seems pretty obvious, especially when you consider that, before social media, the fact that the lawyer and judge were FITS (“friends in the traditional sense”) did not necessarily require recusing the judge.
There ought to be a law . . .
That leads us to Wolfe’s First Law of Social Media Ethics: If it’s unethical to do it in a traditional way, it’s unethical on social media too.
Recently, the Texas Supreme Court Advisory Committee considered a proposal to write Wolfe’s First Law into the Texas Code of Judicial Conduct. They didn’t refer to my law by name or anything, but the resemblance is remarkable:
This should not be too controversial. The only criticism I might have is that this proposal, which merely states the obvious, may be unnecessary. Wolfe’s First Law is nothing if not intuitive.
Still, I’m not saying that applying this general principle to specific cases is easy. Courts, bar associations, and lawyers across the country have struggled with thorny questions that arise from judges using social media. Let’s consider a hypothetical.
Previously on Five Minute Law . . .
Take our favorite fictional non-compete case, Paula Payne Windows v. Dawn Davis, where lawyer John Laurens filed suit to enforce a non-compete. After finding out the case was assigned to Judge John Lansing, Laurens hires local counsel, Hank Livingston, a venerable trial lawyer who “knows everybody.”
Oddly enough, Livingston and the judge happen to be FITS: Livingston was the best man at Judge Lansing’s wedding, and they go dove-hunting together near San Angelo every December. They’re also connected on LinkedIn, although Livingston doesn’t really know how to use it.
Meanwhile . . .
Laurens’ young associate, Phil Hamilton, is eager to impress his boss. Phil starts following Judge Lansing on Twitter and retweeting his tweets, which are mostly about barbeque and Texas A&M football. Phil also sends Judge Lansing a Facebook friend request, which the judge accepts without a second thought, adding Phil to the 3,000 friends he accumulated when he ran his last campaign. They like and comment on each other’s posts several times.
Laurens, on the other hand, still does things the old-fashioned way. He starts by filing a motion for a temporary injunction to prevent Dawn Davis from competing with Paula Payne Windows. After scheduling a hearing on his motion, Laurens shows up at Judge Lansing’s campaign fundraiser and hands him a check for $5,000. “Good luck with your campaign, judge, I know you’ll keep doing a great job.”
None of this goes unnoticed by Dawn Davis’s lawyer, Maria Reynolds. She gets aggressive and files a motion to recuse Judge Lansing based on his relationship with the lawyers representing Paula Payne.
Reynolds is careful not to impugn the judge’s integrity. Instead, she cites Texas Rule of Civil Procedure 18, which says a judge “shall recuse himself in any proceeding in which . . . his impartiality might reasonably be questioned.” It’s not a question of whether the judge will be impartial, she argues, but merely whether someone could reasonably question whether he can be impartial.
So what is the strongest ground for recusing Judge Lansing?
(A) The connection between the judge and local counsel on LinkedIn.
(B) The interactions between the associate and the judge on Facebook and Twitter.
(C) The fact that Paula Payne’s local counsel is the judge’s close personal friend and former campaign manager.
(D) The $5,000 campaign contribution Laurens handed the judge right before the temporary injunction hearing.
Unless you’re a member of Congress, I’m guessing the campaign contribution strikes you as the most egregious conduct here. (Everybody loves to pick on Congress.) And you would not be alone.
Texas case law on campaign contributions
The defense lawyers in a little case called Texaco v. Pennzoil also had an issue with campaign contributions. After that suit was filed, Pennzoil’s lead counsel, Joe Jamail, contributed $10,000 to the presiding judge’s campaign fund. Texaco moved to recuse the judge, arguing that the contribution, coupled with Jamail’s service on the judge’s “steering committee,” created an appearance of impropriety.
A simplistic person might think the timing and amount of the contribution would at least create a situation where the judge’s impartiality “might reasonably be questioned.”
But the Houston Court of Court of Appeals took a more sophisticated view. It held that recusal was not required.[3] The court cited Rocha v. Ahmad, where the San Antonio Court of Appeals ruled that two justices who received thousands of dollars in political contributions from one of the law firms did not have to be recused.[4]
Funny thing about Rocha: it did not deny the obvious. The court did not deny that campaign contributions can create an appearance of impropriety. Instead, the Rocha court reasoned that campaign contributions cannot be a basis for recusing Texas judges, because then the judges would have to recuse themselves all the time: “If a judge cannot sit on a case in which a contributing lawyer is involved as counsel, judges who have been elected would have to recuse themselves in perhaps a majority of the cases filed in their courts.”[5]
The Texas Code of Judicial Conduct also bows to this practical reality. Canon 4(D) generally requires a judge to refrain from financial dealings that reflect adversely on the judge’s impartiality. But there is an express exception for soliciting campaign contributions. So, generally a Texas judge does not violate any ethical rule by accepting political contributions from lawyers who practice in his court.
And Texas courts have continued to follow Rocha’s lead. Ten years later, the El Paso Court of Appeals held that recusal was not required where the campaign contribution was small, the judge had a policy of accepting only limited contributions, and the contributing lawyer was not lead counsel.[6]
The Corpus Christi Court of Appeals even went as far as holding that recusal was not required where the lawyer was the judge’s close personal friend, the judge’s personal attorney in another case, and the judge’s campaign manager in his last campaign.[7]
By 2014 the Dallas Court of Appeals could accurately state that “Texas courts have repeatedly rejected the argument that campaign contributions by attorneys is grounds for recusal.”[8]
The Texas case law leaves open the possibility that the timing and circumstances of a political contribution to a judge could be so egregious that recusal would be required. But the general rule in Texas is that courts will bend over backwards not to require recusal based on campaign contributions. I haven’t seen a single case where a Texas appellate court required recusal on this ground. (Please tell me if you have.)
So what does this have to do with social media?
Texas law on contributions to judicial campaigns provides a helpful backdrop for questions about social media. If a lawyer can freely contribute to a judge’s campaign without fear of triggering recusal, it’s hard to see how any typical interaction between a lawyer and a judge on social media would create a sufficient appearance of impropriety.
No, when judges go wrong on social media, it usually involves something else: improperly commenting on a pending case before the judge. See John G. Browning and Justice Don Willett, Rules of Engagement, Texas Bar Journal (February 2016) (“judges shouldn’t discuss pending cases—period”). Generally, judges can freely interact with lawyers through social media, as long as they don’t use social media to do something they couldn’t do in a traditional way.
It’s Wolfe’s First Law of Social Media Ethics again.
And fortunately, there is a happy ending to the campaign contribution issue. The Texas legislature solved the problem in 1995 by passing the Judicial Campaign Fairness Act. Among other things, the Act provides that a judge may not accept a political contribution while physically present in a “courthouse,” which is defined to include a courthouse.[9]
That’s probably a good rule. There’s no appearance of impropriety when a lawyer hands the judge a check, as long as he does it at a fundraiser at Billy Bob’s BBQ and not at the courthouse.
Everybody knows.
___________________________________________________________________
These are his opinions, not the opinions of his firm or clients, so don’t cite part of this post against him in an actual case. Every case is different, so don’t rely on this post as legal advice for your case.
[1] Law Offices of Herssein & Herssein v. United Servs. Auto. Ass’n, No. 3D17-1421, 2017 WL 3611661, at *4 (Fla. App. Aug. 23, 2017).
[2] See Youkers v. State, 400 S.W.3d 200, 206 (Tex. App.—Dallas 2013, pet. denied) (fact that judge was Facebook friend of victim’s father did not necessarily require recusal in criminal case); ABA Formal Opinion 462 (2013) (“Simple designation as [a social media connection] does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person”).
[3] Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 842-43 (Tex. App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.). The case had the largest damages verdict in Texas history but famously did not go up to the Texas Supreme Court.
[4] Rocha v. Ahmad, 662 S.W.2d 77, 78 (Tex. App.—San Antonio 1983, no writ).
[5] Id.
[6] Aguilar v. Anderson, 855 S.W.2d 799, 802 (Tex. App.—El Paso 1993, writ denied).
[7] Lueg v. Lueg, 976 S.W.2d 308, 310-11 (Tex. App.—Corpus Christi 1998, pet. denied).
[8] Holland v. Friedman & Feiger, No. 05-12-01714-CV, 2014 WL 6778394, at *10 n.8 (Tex. App.—Dallas Dec. 2, 2014, pet. denied).
[9] Tex. Elec. Code § 253.039.
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