Hello everyone and welcome to this Ethics Alert which will discuss the recent Wisconsin appellate court opinion which found that a judge’s undisclosed Facebook connection with a litigant during ongoing child custody litigation created a “great risk of actual bias resulting in the appearance of partiality.” The case is: In re The Paternity of B. J. M.: Timothy W. Miller V. Angela L. Carroll, Appeal No. 2017AP2132 Cir. Ct. No. 2011PA46PJ. The opinion is here: https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=235439
According to the opinion, the judge accepted the female litigant’s Facebook friend request after a June 2017 evidentiary hearing wherein she alleged that the child’s father had abused her. He denied the allegations. The judge accepted the female litigant’s Facebook request after that hearing and he did not disclose the connection to the male litigant or his lawyer.
The female litigant “liked” 18 of the judge’s Facebook posts and commented on two of them before the judge ruled on the issues raised at the hearing and she also shared a photo from a third party related to domestic violence. The judge did not “like” or comment on any of the female litigant’s posts; however, he later ruled in her favor and awarded her sole legal custody and primary physical placement of the child.
After the Facebook connection was discovered, the judge said it did not affect his decision because he had already decided how he was going to rule.
The Wisconsin opinion referred to a 2013 ABA ethics opinion which states that judges may participate in electronic social networking; however, they must avoid connections which negative affect impartiality or create an appearance of impropriety. The opinion stated that the timing of the judge’s acceptance of the friend request could cause a reasonable person to question his impartiality and the failure of the judge to disclose the Facebook friendship increased the appearance of partiality and concerns about ex-parte communications. The opinion concluded:
“(U)nder the facts of this case, the establishment of an undisclosed Facebook connection between Judge Bitney and Carroll during ongoing litigation created a great risk of actual bias resulting in the appearance of partiality. Therefore, the presumption of Judge Bitney’s impartiality has been rebutted and a due process violation occurred.”
Bottom line: This is yet another example of how social media connections can create ethics issues and traps for the unwary, both lawyers and judges.
Be careful out there.
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Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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