Nicole Black, BridgeTower Media Newswire
Sometimes the online medium can be problematic. People act rashly, in the heat of the moment, and post or do something on social media they later regret. The problem is, the internet is forever—and it’s not particularly forgiving. It’s a tough lesson to learn, and it’s one that is uniformly applicable. Lawyers— and even judges—can fall victim and interact online in ways that come back to haunt them.
Case in point: the California judicial disciplinary proceeding against Judge Jeff Ferguson. (Online: https://cjp.blogs.ca.gov/files/2016/08/Ferguson-D-O-Public-Admon-5-31-17.pdf). There were two different online interactions at issue in this case. First, the judge’s posts to the North Orange County Bar Association’s Facebook page regarding a lawyer. And second, the judge’s Facebook friendship with three criminal defense lawyers who appeared in his courtroom.
The Facebook group post related to a judicial race in Orange County. Judge Ferguson supported his colleague, Judge Scott Steiner, who was running against Deputy District Attorney Karen Schatzle. In April 2016, Schatzle posted the following to the NOCBA’s Facebook page: “Scott Steiner uses his office for sex and yet so many aren’t concerned, crazy politics!” Her comment related to a 2014 judicial disciplinary action against Judge Ferguson that resulted in a censure for his conduct, which included engaging in sexual activity with law students in his chambers. In response to her statement, Judge Ferguson posted the following: “Karen Shatzle [sic] has sex with defense lawyer whike [sic] shw [sic] is DA on his cases and nobody cares. Interesting politics.” It was that responsive post that was at issue.
Based on the evidence before it, the State of California Commission on Judicial Performance determined that the statement made by the judge was made with reckless disregard for the truth. As a result, the Commission concluded: “Judge Ferguson’s conduct violated canon of the Code of Judicial Ethics (a judge shall personally observe high standards of conduct so that the integrity and independence of the judiciary is preserved), canon (a judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities), canon 2A (a judge shall act at all times in manner that promotes public confidence in the integrity and impartiality of the judiciary), canon 4A(2) (a judge shall conduct all of the judge’s extrajudicial activities so that they do not demean the judicial office), and canon (a judge shall not engage in political activity that may create the appearance of impropriety).”
Next the commission turned to the issue of the judge’s Facebook connection with three different criminal defense lawyers. His Facebook friendship with those attorneys pre-dated his appointment to the bench. But after becoming a judge, he failed to disclose that he was friends with the attorneys on Facebook even though they regularly appeared before him in his courtroom. His actions directly contradicted the conclusion reached in California Judges Association Ethics Opinion No. 66, wherein it was determined that ‘When judge learns that an attorney who is member of that judge’s online social networking community has case pending before the judge the online interaction with that attorney must cease (i.e., the attorney should be “unfriended”) and the fact this was done should be disclosed.” Once the commission contacted him regarding his connection with the attorneys, he promptly unfriended them.
The commission nevertheless concluded that “Judge Ferguson’s conduct violated canon of the Code of Judicial Ethics (a judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities), canon 2A (a judge shall act at all times in manner that promotes public confidence in the integrity and impartiality of the judiciary), and canon 2B(1) (a judge shall not allow family, social, political, or other relationships to influence the judge’s judicial conduct or judgment, nor shall judge convey or permit others to convey the impression that any individual is in special position to influence the judge).”
After making these findings, the commission publicly admonished Judge Ferguson for his actions on Facebook.
The lesson to be learned is twofold. First, whether you’re a judge or lawyer, make sure you fully understand the mechanisms of the social media platforms you choose to interact on and familiarize yourself with the ethical obligations to which you are required to abide. And second, the online is simply an extension of the offline—except your actions can be recorded and saved.
Don’t do anything online that you wouldn’t do in a room full of people, lest your actions come back to bite you.
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycase.com.
