Forman: Fb Mates and Conflicts of Curiosity| Employees Compensation Information

By Zachary T. Forman

Wednesday, January 20, 2021 | 43 | 0 | min read

Many questions keep me awake late into the night and into the early hours of the morning. You know, these questions that are running around in your head looking for an answer.

Zachary T. Forman

I recently had to consider: is it permissible, ethical, or even potentially disqualifying for an employee compensation judge to be a Facebook friend of a party in an employee compensation case? To be honest, since I am an employee compensation defense attorney and have been for over 17 years, I have been pondering the implication of having a case before a judge where the judge and the applicant lawyer are friends on Facebook.

As you all know, unlike civil or criminal matters, employee compensation is an administrative competence. Therefore, our cases are not heard by a jury but by a judge. That fills the judge with extreme power on the case. The judge is the sole arbiter of who wins and who loses in any particular case or matter that is before that judge.

Often times, a judge only needs to make a decision when the law is not clear. In other words, it’s a close call and the judge could easily come down one way or another. In these situations, is it appropriate to question whether the Facebook friendship is enough to tip the scales a little in your favor?

So what do you do in the middle of the night (3 a.m.) when you can’t stop thinking about the answer to a question? Google, of course.

I was actually surprised to discover that the California Judges Association had issued a statement on the matter back in 2010. I had to think to myself: “Wow, I was only on Facebook for two years then.” When I read the decision, it was surprising to me how up-to-date the discussions in the decision are at that point in time.

The opinion is California Judge Association, Judicial Ethics Committee Opinion 66. The title is “Online Social Networking” and you can read it by clicking here.

The opinion goes into depth on the adequacy of judges who are generally on Facebook and then Facebook friends with parties to a case in particular. The ability to share a judge’s opinions solely on Facebook, such as B. political opinions, etc., can give an indication of how a judge can rule on a particular issue. While this is an interesting topic in and of itself, I’ll leave this discussion for another time.

The relevant parts: [E]The extrajudicial activities are governed by Canon 4A, which states: “A judge conducts all extrajudicial activities of the judge in such a way that they (1) do not raise reasonable doubts about the judge’s ability to act impartially. (2) downgrade the judiciary; or (3) impair the proper performance of judicial obligations. “

In that ruling, the committee recognized that the parties may have problems when the opposing lawyer and presiding judge are connected on social media websites.

Like the Hon. Richard L. Gabriel and Professor Nina Varsava, in an article for the July 2019 issue of Colorado Lawyer Magazine, noted that the committee identified four factors that should be considered in determining whether a social media Relationship between a judge and an attorney creates a perception of inappropriateness:

• The type of social media platform in question.
• The number of friends the judge has on this platform.
• The method by which the judge decides who to count among his friends on the platform.
• How often does the lawyer in question appear before the judge?

Our friends in Colorado also pointed out that the committee created a black line rule: If a judge is Facebook friends with an attorney for whom a matter is pending, the judge must have “befriended” that attorney.

That last sentence really caught my attention. We have a light line rule here.

When asked whether a judge should or can be friends with a party, the answer is that doing so would be appropriate in most situations and definitely does not disqualify. According to this view, however, a judge and an employee compensation defense or an applicant attorney should not be Facebook friends if a matter is pending before the judge in which the attorney is involved.

Along the way, the question arises: Are labor compensation judges bound by the same ethical guidelines as other judges?

The short answer is yes. Pursuant to Section 9721.1 of the Code of Judicial Ethics, “Every employee compensation administrative judge must adhere to the Code of Judicial Ethics.”

Therefore, an employee compensation judge is also bound by the clear rule regarding Facebook friendship.

I am sure that there are innumerable opinions on the subject. The workers ‘compensation community is a close-knit community where judges and lawyers get to know each other very well given the daily interactions on the workers’ compensation appellate body. It goes without saying that familiarity lends itself to a casual Facebook friendship every now and then.

However, according to the California Judges Association, this is likely a Facebook friendship that, in the interests of impartiality, should be politely declined – perceived or otherwise.

Zachary Forman is a partner in the Bradford & Barthel Ontario office. This entry from Bradford & Barthel’s blog is published with permission.