U.S. District Judge Mary Scriven had a dilemma. The Tampa judge wanted, like much of America, to be on Facebook and post jokes and updates for friends, but she knew it could be problematic for a federal judge.
Scriven’s solution was to create a Facebook pseudonym. Unfortunately, her friends figured it out, and she removed it almost immediately.
“What if people wanted to friend me, and I didn’t want to,” Scriven said. “It was a problem.”
Scriven was a panelist Friday at a “master’s seminar on ethics” at the Florida Bar convention attended by more than 2,000 lawyers in Orlando. Much of the seminar dealt with the pitfalls of social media for judges and lawyers.
In an overview, former Bar president Henry Coxe III, a Jacksonville lawyer who frequently represents lawyers in trouble with the Bar, provided examples of lawyers and judges who have run afoul of ethical guidelines.
First was former Broward Circuit Judge Ana Gardiner, who was disbarred this month for a personal relationship she had with a prosecutor during a capital murder trial.
Coxe also noted the case of an Orlando prosecutor who came under fire for Facebook postings encouraging “crack hos” to “tie your tubes,” saying a man who broke into a house deserved to be killed by the homeowner and ranting about how U.S. Supreme Court Justice Sonia Sotomayor’s appointment demonstrates the dangers of affirmative action.
Then there were the cases of a Miami assistant public defender who posted a photo of her client in leopard print underwear on Facebook, a lawyer who blogged that a judge on her case was “an evil, unfair witch” and the lawyer who blogged that one of her clients was stoned in court. Those lawyers were either fired, sanctioned or suspended.
Everyone laughed when an audience member yelled out, “Anyone want to step outside,” riffing on a Brevard County court judge who got into an altercation with a lawyer appearing before him after stating, “If I had a rock I would throw it at you right now.”
“People’s inability to separate their personal and professional lives on social media will be their undoing,” Coxe said. He then asked lawyers with Facebook accounts to raise their hands. About half the room did so.
In a panel on ethics in and out of the courtroom, three judges addressed the challenges of practicing with civility, candor and ethics.
Moderator Rodolfo Sorondo Jr., head of Holland & Knight’s appellate practice and a former Third District Court of Appeal judge, noted lawyers may try to improperly influence judges by talking to a judge’s judicial assistant in a voice loud enough to be heard by the judge.
Additionally, “incestuous” relationships may develop unintentionally because some judges work with the same public defenders and prosecutors day in and day out, Sorondo said.
Judge Ronald Swanson of the First District Court of Appeal asked the audience how many socialize, live near or go to church with judges? Nearly every hand was raised. “That’s because they are from your community,” he noted.
The judicial panelists spoke of how ex parte communications sometimes occur subtly, through conversations with judicial assistants in a cafeteria or as a casual aside in the courtroom.
“My law clerks are an extension of me,” Scriven said. “Everything you say comes back to me. When you call my law clerk and say, ‘Where is that order? It’s been six weeks,’ it’s like telling that to me.”
Scriven urged lawyers to take care in speaking in courtrooms and judges’ chambers, noting a lawyer recently compared a judge to “a male anatomy part,” not realizing a microphone was on in the judge’s chambers.
Lawyers can try to exert influence subtly, said Judge Nelly Khouzam of the Second District Court of Appeal. She offered as an example when a lawyer says, “Judge, the other lawyer is trying to mislead the court.”
“These words are very, very demeaning,” Khouzam said. “If somebody starts that in court, don’t get sucked in. People think they need to be aggressive, and I think the opposite is true.”
The panelists also urged lawyers to return phone calls and emails promptly. In a poll of how many have not gotten phone calls from opposing counsel returned, all raised their hands.
Khouzam encouraged lawyers to call each other rather than email since email sometimes delivers the wrong tone.
“Don’t you wish there was a tone font,” Scriven wondered.
Ultimately, Khouzam said it’s up to judges to stop improper conduct by lawyers.
“If you don’t discipline offending behavior, it will continue,” she said. “We impose sanctions. It will hit them in the pocketbook.”
Scriven also noted judges have a unique vantage point. If they kick their clients under the table or try to coach them, “all this is visible to the court,” she said. “You have to be super careful about that behavior.”