In a recent Texas Court of Appeals decision, the court found that a mere Facebook friendship does not amount to a lack of impartiality by judge (Youkers v. State, 2013 WL 2077196 (Tex. App.—Dallas May 15, 2013). In Youkers, the assault victim’s father was Facebook friends with the judge presiding over Youkers’ trial. He sent the judge a private message requesting a lenient sentence for the defendant. The judge deemed the message an improper ex parte communication. He sent a reply informing that the message was a violation of ex parte rules, and then notified the attorneys of the communication and placed a copy of the message in the court’s file. He then contacted the Judicial Conduct Commission to determine if any other steps needed to be taken. The judge did not recuse himself from the matter. In his motion for new trial, Youkers alleged, in part, that the judge’s impartiality had been compromised and that he should have recused himself because of his social media connection and his Facebook interactions with the victim’s father. At the hearing on the motion, the judge testified that he and the victim’s father had both run for office during the same election cycle and were merely acquaintances. In the end, the Texas Court of Appeals concluded that the judge acted properly and was not required to recuse himself under the circumstances of this case. This appears to comport with the New York State Advisory Committee on Judicial Ethics. See, Opinion 13-39 (May 28, 2013), where the ACJE opined that “the mere status of being a “Facebook friend,” without more, is an insufficient basis to require recusal. Nor does the Committee believe that a judge’s impartiality may reasonably be questioned (see 22 NYCRR 100.3[E][1]) or that there is an appearance of impropriety (see 22 NYCRR 100.2[A]) based solely on having previously “friended” certain individuals who are now involved in some manner in a pending action.” So it begs the question: How do judges avoid this situation without steering clear of social media altogether? When it come to potential conflicts of interest in determining whether an attorney may take on representation of a party, Rule 1.10 of the New York Rules of Professional Conduct requires that “[a] law firm shall * * * implement and maintain a system by which proposed engagements are checked against current and previous engagements.” A way to deal with this is for administrative law judges and hearing officers, at the outset of any case, to review of their social media contacts in order to determine whether a conflict, or potential conflict, of interest exists. If the ALJ sees someone in his/her social media contacts who may be related to the matter, s/he should inquire about it at the opening of the proceeding, and if a relationship exists,– no matter how remote– make full disclosure about the nature of the relationship, making an on-the-record determination on recusal.

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