More Facebook fails

Based on the judge’s consent, the Tennessee Board of Judicial Conduct suspended a judge for 30 days without pay and publicly reprimanded him for sending inappropriate messages to women on social media platforms.  Re Young (Tennessee Board of Judicial Conduct October 5, 2020).  The suspension was held in abeyance provided no meritorious complaints are filed against the judge for any type of misconduct during the remainder of his current term.  The judge also agreed not to use a picture of himself in his judicial robe as a profile picture on any social media platform on which he is not conducting court business; to complete a judicial ethics program on social media; to recuse himself from all cases involving specific attorneys identified separately; and to refrain from similar misconduct.

The judge was pictured in his judicial robes in his profile picture on several social media platforms.  On those platforms, the judge sent messages “ranging from flirtatious to overtly sexual” to multiple women and solicited pictures from them.  The women included a legal professional employed at a law firm that conducts business in his court and a litigant who formerly had a child custody matter before him. 

Attorneys who litigated before him, especially in domestic relations matters, had had to seek advice from the Board of Professional Responsibility about whether to disclose to clients what they knew about his activities.  In at least one instance, a party used knowledge of the judge’s conduct to strategic advantage in a case.  The judge had had to recuse himself from a case after a party learned of his social media activities and asked him to step aside.

The Board found that a judge having sexual conversations and soliciting pictures while in his judicial robe would appear to a reasonable person to be coercive and that the judge’s inappropriate use of social media had created ethical dilemmas for attorneys who litigated before him.  The Board also stated that sending inappropriate messages on social media may interfere with a judge’s ability to preside over cases and that “inappropriate messages sent by a sitting judge to anyone, much less to those who have ties to the court system, do not inspire” confidence in the integrity and impartiality of the judiciary.

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The Kentucky Court of Appeals remanded a medical malpractice case for the trial court judge to determine if her Facebook friendship with one of the defendants and that defendant’s connections to her judicial campaign were so extensive that her recusal was required.  Andress v. Lape (Kentucky Court of Appeals September 18, 2020).

Judge Kathleen Lape presided over a jury trial in a medical malpractice case brought against a hospital and several doctors.  The jury returned a verdict for the defendants.  The plaintiff filed a motion for a new trial that raised several recusal issues.  The judge denied the motion.

One of the recusal issues was the judge’s Facebook friendship with Dr. Donald Swikert, one of the defendants.  On appeal, the court of appeals explained:

The record is silent as to the extent of Judge Lape’s Facebook friendship with Dr. Swikert.  Are they simply Facebook friends who are only vaguely familiar with each other or are they neighbors who routinely socialize with one another?  While we doubt it is the latter, we do not have any information regarding the scope of the friendship.  Since we must look at the connections between Dr. Swikert and Judge Lape individually, as well as collectively, we cannot say for certain if Judge Lape should have disclosed this information or recused herself; therefore, we must reverse and remand for more information.

The plaintiffs had also argued that the judge should have disclosed that Dr. Swikert had contributed $200 to the judge’s election campaign and that the doctor and his wife had co-hosted a fundraiser for her campaign.  The court stated that, “taken individually, the $200 campaign contribution would not require Judge Lape to recuse herself” and “Dr. Swikert’s participation in the fundraiser, taken alone, would not require recusal,” noting that it was not clear that the doctor was  a co-host at all and that “there were over 70 other co-hosts.  This was clearly not an intimate affair.”  However, the court stated that, on remand, the judge should analyze the campaign issues “collectively” with the Facebook issue.

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A 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics was published in the spring and summer 2017 issues of the Judicial Conduct ReporterPart 1 was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  Part 2 covered off-bench conduct:  conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Summaries of advisory opinions and cases up-dating the 2-part article are available on the Center for Judicial Ethics website.

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