Sunday, December 13, 2009

Facebook Friends, Judges, and Conflict of Interest

Florida's Judicial Ethics Advisory Committee was recently asked the following question:
Whether a judge may add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend."
The majority - correctly - said "no," in accord with the expectation that judges will not "convey or permit others to convey the impression that they are in a special position to influence the judge." The principle behind the majority's conclusion is this:
Irresponsible or improper conduct by judges erodes public confidence in the judiciary. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
What's most interesting about the advice is the minority view on the Committee:
The minority believes that the listing of lawyers who may appear before the judge as "friends" on a judge's social networking page does not reasonably convey to others the impression that these lawyers are in a special position to influence the judge. The minority concludes that social networking sites have become so ubiquitous that the term "friend" on these pages does not convey the same meaning that it did in the pre-internet age; that today, the term "friend" on social networking sites merely conveys the message that a person so identified is a contact or acquaintance; and that such an identification does not convey that a person is a "friend" in the traditional sense, i.e., a person attached to another person by feelings of affection or personal regard...the minority concludes that identification of a lawyer who may appear before a judge as a "friend" on a social networking site does not convey the impression that the person is in a position to influence the judge...
Two things stand out about the minority position:

First, there's a generation gap with regard to social networking, so that for some, a "Facebook friend" isn't necessarily a "real friend." But since some Facebook friends are indeed real friends, it seems to me that the minority is wrong. An observer would have to do a differential diagnosis of the term "friend." That process can't be counted on to protect public trust in the judge.

Second, both majority and minority were solidly focused on appearance. They don't ruminate about whether the judge is really friends with the lawyer and actually subject to influence. To maintain public trust judges don't simply scrutinize their motives - they have to start by scrutinizing how their conduct would appear to a skeptical observer.

We've not made that distinction at all well in medicine. Later this week I'll be writing about how failure to take appearance seriously is again undermining an important American Psychiatric Association initiative.

(The Florida Judicial Ethics Advisory Committee opinion is available here.)


Doug Brown said...

Jim. Great Blog. I agree that the medical field has not done a great job of making the distinction between fact and appearance. I have seen this in particular in the area of vendor relationships. At UMass Memorial, we adopted a very strict policy two years ago because we were as concerned about appearances (of our docs having lunch with, and accepting trinkets from, Pharma reps) as we were about actual undue influence. At first, we heard "I can't be influenced by a free lunch or a pen." It was only after the medical staff understood that the appearance alone is insidious to the integrity of medical decision making that, in my view, we received near universal support for the new policy. I agree with the majority opinion. Keep writing about this great topic. And I'll add your blog to my list of favorites on mine.

Jim Sabin said...

Hi Doug -

Thank you for this valuable comment. The degree to which the medical staff understood and accepted the view that appearances are ethically important is an important finding. In my experience, physicians (and others) feel accused of wrongdoing when the topic of conflict of interest is raised. It sounds as if Memorial Hospital was wise in focusing on external perception and not on persuading physicians that small gifts actually influence behavior (even though they do).

I want to encourage readers to look at your blog (Healthcare Ruminatio), which I've added to my list of favorites. Your experience as Senior Vice President and General Counsel at University of Massachusetts Memorial Healthcare is a great window for spotting important issues of ethics and policy in their nitty gritty form!



Ofer Zur said...

Whether it is a appropriate for a therapists or medical doctor to be a friend with a client or patient depends on what is on the profile and what the other person is privy to (i.e., the privacy settings). Many psychologists, social workers, psychiatrists, and counselors have 100% professional profiles on Facebook or Linkedin. As my article at explains, having clients as "friends" on these sites does NOT constitute dual relationships.
Ofer Zur, Ph.D.
Director, Zur Institute

Jim Sabin said...

Hello Dr. Zur -

I apologize for the delay in posting your comment - I was away when it arrived and have been slow in responding.

Thank you for guidance to your excellent website. Your discussion there of when Facebook access does and does not create problematic dual relationships is very clarifying. I believe that we agree that these questions are nuanced, and that ethical and clinical assessment requires attention to the fine details!