Adjudicators and Their Facebook Friends … Not So Fast?

Are there rules in Canada about, or practical examples of, judges or tribunal adjudicators being ‘friends’ on Facebook or otherwise connected by social media with counsel or parties to a dispute before them? What should be done?

The American Bar Association has an ethics opinion that is summed up in this high-level principle:

A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.

There have been a few cases in the US involving judges, usually as ‘friends’ of a party. Here is Venkat Balasubramani’s post about two recent cases, in Eric Goldman’s blog. The second one seems really doubtful to me. The post notes a previous Florida ruling that went the other way and disqualified a judge for his ‘friendship’ with counsel.

Is it accurate to characterize FB friends as the judge did in the first case in Venkat’s post (allowing for his Alabamian expression):

[Facebook] is a social networking site where the word ‘friend’ is used [in a way] that doesn’t have anything to do with the way before this Facebook.com ever existed—the way we used the word ‘friend’…
[J]ust because a person is connected to me on here in this manner doesn’t have anything to do with a personal relationship. I don’t have a personal relationship with this friend. We all live in a small town. I have heard both of you all’s names. I heard [the daughter’s] name before we came in here today.

I am aware (h/t Patrick Gingras) of one Canadian case, where a labour arbitrator was disqualified by the Federal Court because his FB pages showed social links to a minister who had appointed him and to another who was — via his department — a party before him. Canadian Union of Postal Workers v. Canada Post Corporation, 2012 FC 975

[12] A pre-hearing conference was held on April 30, 2012, at which the appellant’s counsel again requested that the arbitrator recuse himself in light of new information. The first piece of information was a Facebook page in the arbitrator’s name, in which the “activities and interests” category included links to the Westmount Ville-Marie Conservative Association and the page for Michelle Rempel, Conservative Member of Parliament for Calgary Centre-North. The page also contained a list of “friends”, including Minister Raitt, who was responsible for appointing the arbitrator, as well as Minister Steven Fletcher, the minister responsible for Canada Post. In May 2012, Arbitrator Dufort removed these links from his Facebook page.

(Evidentiary digression: does the WayBack Machine index Facebook, so one can show who people used to be friends with? Suppose the arbitrator here had removed the links before the union had seen them. Would that have made him neutral?)

Is the ABA opinion firm enough, in your opinion? Can one really be more precise? Is this just a matter of becoming sufficiently familiar with social media that long-standing common sense can assert itself? Or do we need specially-tailored rules for these new phenomena?

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Comments

  1. I might have mentioned Connie Crosby’s posts to Slaw on social media and judges, which include the friending question, here and here.