Georgia Business and Technology Litigation Blog

LAWYERS, DON'T “FRIEND" JUDGES (or at least not the good ones)

They say that “a good lawyer knows the law and a great lawyer knows the judge.”  While there is some truth to that adage, a recent Florida case suggests that it should now say that “a great lawyer knows the judge, but doesn’t ‘friend’ him”–at least not in Florida.

Why not?  Or, as the band War so memorably sang, “why can’t we be friends?”

Though not too melodic, the answer is:  because public, social media “friendships” between a judge and lawyer can wrongly suggest that there is an extra-legal personal relationship which could affect a judge’s impartiality.

The case at issue involved a Florida trial judge who was found to be Facebook “friends” with the prosecutor in a criminal case.  Therefore, the criminal defendant moved to disqualify the trial judge, who saw no problem and denied the motion to disqualify himself from the case.  The Florida District Court of Appeal disagreed and held that Florida’s ethical rules for judges prohibit judges from publicly friending lawyers on a social media site because of the improprieties suggested by a “friendship.”

For those interested, the appellate court’s full decision can be viewed here:   Download Domville v State Opinion.  Following is an excerpt explaining the court’s reasoning:

We find an opinion of the Judicial Ethics Advisory Committee to be instructive. See Fla. JEAC Op. 2009–20 (Nov. 17, 2009).  There, the Committee concluded that the Florida Code of Judicial Conduct precludes a judge from both adding lawyers who appear before the judge as “friends” on a social networking site and allowing such lawyers to add the judge as their “friend.”  The Committee determined that a judge's listing of a lawyer as a “friend” on the judge's social networking page-“[t]o the extent that such identification is available for any other person to view”-would violate Florida Code of Judicial Conduct Canon 2B (“A judge shall not convey or permit others to convey the impression that they are in a special position to influence the judge.”).

. . . .

The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a “friend” on the social networking site, conveys the impression that the lawyer is in a position to influence the judge.  The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.

 

CAN EMPLOYERS REALLY DEMAND SOCIAL MEDIA PASSWORDS FROM APPLICANTS AND EMPLOYEES?

Recently, I’ve received numerous questions and seen online discussions about an apparently increasing practice where employers are demanding social media login and password information from applicants and employees.

Although I’m not aware of any legislation in Georgia that concerns this employment practice, it's becoming popular enough to warrant the attention of at least two state legislatures.  Both Maryland and Illinois are currently considering bills that would limit an employer’s ability to obtain social media login and password information from applicants and employees.  (Here are links to Illinois bill HB3782 and Maryland bill HB0964.)

Regardless of this proposed legislation, employers can and do look at publicly available social media information posted by applicants and employees.  As many employers know, this can be a double-edged sword.  While viewing such information can allow an employer to dodge a bullet by avoiding or discontinuing an employment relationship with an unqualified employee, an employer’s awareness of social media information can also subject an employer to risk of being sued.   This is because social media may allow an employer to learn information about an applicant or employee that could support a discrimination claim.   For instance, an employer’s knowledge of an applicant’s religion could support that applicant’s claim that the employer chose not to hire him because of his religion, even if the employer had another, legitimate basis for not hiring him.

An employer may also review social media postings by its employees to look for unfavorable comments that could defame or otherwise hurt the employer's business reputation.   Here, again, caution is necessary because the National Labor Relations Board (NLRB) has recently taken the position that an employer's acts which chill employee complaints about the employer on social media sites can be illegal interference with an employee's right to complain as part of “concerted activity” that is protected by the National Labor Relations Act.   Although this is a complex topic that will be discussed in detail in forthcoming posts here, even non-union employers must be very careful when creating social media policies for their employees, and especially before making any employment decisions based on an employee’s social media postings complaining about his or her employer.  For those interested, here's a copy of the NLRB's recent memo that provides employers guidance about the NLRB's position on employees' rights to criticize their employers on social media.

ONLINE MARKETERS ARE SUBJECT TO CAN-SPAM LIABILITY FOR “LIKEJACKING” ON FACEBOOK

“Likejacking” occurs on Facebook when a marketer or advertiser attempts to trick a Facebook user into “liking” another Facebook page. The CAN-SPAM Act, prohibits sending commercial mail messages that attempt to deceive recipients with misleading subject or header information which is unrelated to the content of the message. Although initially intended to apply to email, courts have held that CAN-SPAM also applies to messages sent on Facebook and other social media sites. See, e.g., Facebook Inc. v. Max Bounty Inc. (download Order here); MySpace v. Wallace (download Order here).

Two recent cases filed in 2012 indicate that social media providers and governmental consumer protection agencies are cracking down on “likejacking.” Both cases involve Adscend Media, LLC. Facebook filed one of these cases in the United States District Court for the Northern District of California (download Complaint here); Washington State’s Consumer Protection Division filed the other case in the United States District Court for the Western District of Washington (download Complaint here).

According to the allegations in these cases, Adscend is an online marketer that operates a network of affiliates who receive compensation for sending Facebook and other messages for Adscend marketing campaigns. Apparently, its marketing program involves Facebook messages that purport to be from a Facebook’s user’s “friend” and try to get the recipient to click and view a supposedly sensational video or other website. Then, when the solicited Facebook user clicks on the message, he is forced to “like” a certain page in order to finally reach the video discussed in the message. According to the Complaints in these two cases, some of Adscend’s affiliates further tricked Facebook users into “liking” a page by disguising the “like” button so that some users did not even know they were “liking” a page by clicking a suggested link. (Although Adscend’s “lifejacking” messages were sent by its affiliates rather than by Adscend itself, that distinction did not shield Adscend from CAN-SPAM liability because Adscend nonetheless procured the offending messages and caused them to be sent.)

So, what’s the real lesson of these “likejacking” cases for marketers?

• Because CAN-SPAM applies to Facebook messages, marketers must take the same care with Facebook campaigns as with email campaigns—basically: no misleading headers.

• Although Adscend may be on the more aggressive end of the spectrum of “likejacking,” it’s clear that even a well-intending marketer could venture into trouble under CAN-SPAM by getting too creative in an attempt to generate “likes.”

• Always be very clear when seeking a message recipient’s “like” for another page.

• Do not send commercial messages that require a recipient to “like” a Facebook page in order to see additional, promoted content on another Facebook or web page.