The growth in popularity of social media has led to complicated ethics questions, particularly related to judges and lawyers. Facebook
In a recent case, In Re Paternity of BJM, a Wisconsin court faced an issue of first impression: a party to a child-custody case made a claim of judicial bias stemming from a judge’s use of social media. Although the court decided not to create a bright-line rule regarding the use of social media by Wisconsin judges, it ultimately concluded that a judge’s undisclosed social media connection with a party in an ongoing case created an appearance of impropriety, and thus, was enough to disqualify the judge.
The facts of In Re Paternity of BJM are as follows. In 2011, the circuit court entered an order granting the parents in this child-custody case joint legal custody and shared physical placement of their son. In 2016, the child’s mother filed a motion to modify the order, seeking sole legal custody and primary physical placement of her son, in addition to an order for child support payments from her son’s father.
In 2017, an evidentiary hearing on the motion was held, during which the mother introduced evidence accusing the father of domestic violence. After the hearing—but before issuing a decision on the motion—the circuit court judge accepted a Facebook “friend” request from the mother, without disclosing this connection to her opposing party.
After the judge accepted the friend request, the mother “liked” eighteen of the judge’s photos and commented on two of his posts. The judge did not reply to the “likes” or comments and none of them were directly related to the pending litigation. The judge did not “like” or comment on any of the mother’s posts, but she posted images related to domestic violence on her own page, and it is possible that the judge saw these. The father later found out about this Facebook connection, and he requested judicial disqualification and a new hearing.
The appellate court acknowledged that the use of social media is not, standing alone, enough to disqualify a judge. However, the court ultimately determined that the time-frame in which the judge accepted the request and the judge’s failure to disclose the connection, in addition to the fact that this amounted to an ex parte communication, “created a great risk of actual bias resulting in the appearance of partiality.” The court granted the father’s appeal and advised that “judges should recognize that online interactions, like real-world interactions, must be treated with a degree of care.”
Read the full opinion here.
