Given the ubiquity of the social networking web-site, it was probably inevitable, and two years after it became available to the general public, Facebook became the medium for ex parte communications between a judge and lawyer appearing in a case before him. In September 2008, while presiding over a child custody and child support hearing, the judge and the father’s attorney designated themselves as “friends” on their “Facebook” accounts so that they could view each other’s account. During an in-chambers meeting, the judge and the attorneys for both parties were reviewing prior testimony that suggested one of the parties had been having an affair. The father’s attorney asked the judge if he thought the father was having an affair. The judge stated he believed the allegations were true, but that it did not make any difference in the custody dispute. The father’s attorney stated, “I will have to see if I can prove a negative.”
That evening, the judge checked the father’s attorney’s “Facebook” account and saw that he had posted “how do I prove a negative.” The judge then posted on his “Facebook” account that he had “two good parents to choose from” and “feels that he will be back in court,” referring to the case not being settled. The attorney responded by posting on his “Facebook” account, “I have a wise Judge.” During a break in the proceedings the next day, the judge told the mother’s attorney about the exchanges on “Facebook.” The next day, the judge wrote on his “Facebook” account that “he was in his last day of trial.” The father’s attorney then wrote, “I hope I’m in my last day of trial.” The judge responded, “you are in your last day of trial.”
In addition, the judge used “Google” to find the mother’s photography business where he viewed samples of photographs she had taken and found numerous poems. In court prior to announcing his findings in the case, the judge’ recited a poem he had found on the mother’s website, with minor changes. The judge later told the Judicial Standards Commission’s investigator that he quoted the poem because it gave him “hope for the kids and showed that [the mother] was not as bitter as he first thought.” The judge may have visited the mother’s site four times but did not disclose his visits during the hearing. After orally entering his order, the judge requested a bailiff to summon both attorneys to return to the courtroom and then disclosed that he had viewed the mother’s site and quoted a poem he found thereon. On the mother’s later motion, he subsequently disqualified himself, his order custody was vacated, and a new trial was ordered.
The North Carolina Judicial Standards Commission publicly reprimanded the judge. Public Reprimand of Terry (April 1, 2009).
In the 2007 revisions to the Model Code of Judicial Conduct, the American Bar Association added a new comment to the prohibition on ex parte communications that provides: “The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.” The reporters’ notes explain: “Given the ease with which factual investigation can now be accomplished via electronic databases and the Internet, the risk that a judge or the judge’s staff could inadvertently violate Rules 2.10(B) and (C) has heightened considerably. The need for vigilance on the part of judges has increased accordingly.”