Does wishing a judge happy birthday on Facebook count as ex parte conduct?

Social media presents all sorts of cool, interesting, interactive marketing opportunities. For lawyers and judges, though, it also presents all sorts of pitfalls because of the constraints of the ethical rules governing their conduct. The policy underlying these rules is that lawyers and judges have a special responsibility to ensure the independence and integrity of the justice system. If people lose confidence in our system and the rule of law, then people will stop following laws, and we slowly slip toward anarchy and every person for themselves.

In Washington state, lawyers are regulated by the Rules of Professional Conduct (RPC) and judges are regulated by the Code of Judicial Conduct (CJC). Both the RPC’s and the CJC’s prohibit lawyers and judges from engaging in ex parte contact. A lawyer for one party cannot communicate with the judge outside the presence of the lawyers for the other parties on a matter related to the lawsuit at issue. The rule is designed to keep all parties on the same footing and to protect from the appearance that the judge favors one party over the other.

These rules create all kinds of problems for lawyers and judges in social media land. For example, can lawyers and judges be Facebook friends? On one hand, judges are people and allowed to maintain real life friendships with lawyers. On the other hand, it might look a little improper when a judge is publicly Facebook friends with some lawyers and not others. Some states, like Florida, have addressed this problem simply by prohibiting judges and lawyers from being Facebook friends. But what does it mean to be a Facebook friend in this day and age when people have, literally, hundreds of Facebook friends? And what happens when a judge happens to be Facebook friends with, not one of the lawyers for a party, but one of the major witnesses?

This latter question was addressed just a few days ago by the Supreme Court of South Dakota. In Onnen v. Sioux Falls Independent School District, the plaintiff was terminated from his job as a registrar. Onnen appealed through the administrative level and after those appeals were denied, he filed suit arguing he was wrongfully terminated (the reasons why are not important here). The judge held a three day hearing, after which he affirmed the decision to terminate. Onnen discovered after the decision that one of the major witnesses for the school district was Facebook friends with the judge and had wished the judge a happy birthday on his Facebook page while the case was pending. Onnen asked for a new hearing based on this ex parte contact between the witness for the school district and the judge. That request was denied.

The South Dakota Supreme Court affirmed the decision to terminate and the denial of a new hearing. The court held that by definition, the happy birthday post was not about a matter related to the court action. In other words, communication is prohibited only where it concerns something that is in front of the judge or about to be in front of the judge.

The Court went on to hold that even if the happy birthday post was considered ex parte communication, there still would not be a need for a new hearing because the character of the communication was harmless. A new hearing is warranted only where “the adverse party is prejudiced by an inability to rebut the facts communicated and if improper influence appears with reasonable certainty.” Because there was no information communicated to the judge and the judge stated he did not personally know the witness nor did he connect the post to the witness, there was no improper influence and no need for a new trial.

I think this decision was the only correct one. Think about how many times a happy birthday message gets posted on Facebook. As Seattle lawyer Venkat Balasubramani said:

If any modern day communication is more inconsequential than a “happy birthday” post on Facebook, I’m not sure what it is. We’ve all seen, at one time or another, Facebook’s reminder that it’s our acquaintance or friend’s birthday and have taken the two seconds out of our busy web-surfing schedule to wish the person happy birthday. Both the sender and recipient know full well that this is about the most impersonal birthday gesture possible in modern day society.

If this decision had gone the other way, the implications would be staggering. Any time a judge stopped to chat with a lawyer — even just to say “Hi, how are you?” — she would be in danger of having any decisions involving that lawyer reversed. Our already overburdened court systems might collapse from the sheer number of complaints about this kind of communication. Judges would then have to isolate themselves even more than they already do, which would lead to an even-more-removed judiciary.

Thankfully, the South Dakota Supreme Court recognized the happy birthday post for what it was — nothing more than an impersonal, meaningless gesture.

(h/t to Venkat Balasubramani over at Eric Goldman’s Technology & Marketing Blog, linked above. In the interests of full disclosure, Eric Goldman was my Contracts professor in law school.)


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