The other night my phone chirped, letting me know I had a direct message via a social media application. To my surprise, the message was from a litigant who had appeared in front of me earlier that day. I am not sure exactly how that person tracked down my contact information; we do not know each other personally nor are we "friends" on social media. It became apparent quickly the content of the message was related to the case, which I had more or less closed with my ruling in court.
I deleted the message without fully reading it.
Aside from the issue of whether that message crossed personal boundaries, rules do not allow me to get information that way. To maintain an impartial judiciary and to ensure everyone is treated fairly, such one-sided (the Latin term is "ex parte") communications are strictly prohibited by our rules of judicial ethics. The lawyers who appear in court know all about that rule, but many litigants do not.
It is not uncommon for me to receive letters from parties, or on behalf of a party, about a pending case. Those get returned to their senders with instructions on how to file the communication properly and serve the other side with a copy.
Sometimes people try to strike up a casual conversation about a pending case involving friends or family members, and I have to cut them off. I am not trying to be rude; but if both sides are not present, the conversation cannot happen.
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Social media adds to this challenge. Some judges avoid it altogether, and a couple of states have prohibitions or severe restrictions on judges' social-media activities. Most of us just refuse to put anything work-related out there and avoid "friending" anyone involved in litigation with the court. As a result, my Facebook account consists mainly of pictures of my kids and complaints about my favorite sports teams. Boring but ethical. My friends probably would vote for that as my epitaph.
There are a few exceptions to this general rule. It is acceptable for me to talk briefly about scheduling or administrative matters with one side or the other as long as the opposing party is not disadvantaged. A judge can talk to a disinterested expert on an area of the law relevant to a case so long as the parties are notified in advance of that and have the opportunity to object. And judges can talk to court staff and other judges about cases so long as we do not receive any factual information about the case that is not part of the record. This common practice of bouncing ideas off each other does not violate ethics rules.
Especially in smaller communities, this can be a little awkward. People know about cases at the courthouse, and it's only natural to want to talk about them to a judge they know. But the integrity of the legal system requires this rule against ex parte communications. Anyone with a matter pending in the courthouse should know the judge is deciding that case only on the facts properly presented in court and not through any back-channel communications.
Dale Harris is a 6th Judicial District judge in the St. Louis County Courthouse in Duluth.
