Anti-Social Media

A few years ago, I joined Facebook because it was the only way to be alerted to my kid’s practice schedule.

Once I joined, I realized it was a unique way to get a glimpse into people’s lives. While my posts are standard Facebook fodder, some people are cool and lead lives made to be posted on social media. For example, there’s a lawyer I know who, like me, practiced law with his dad. He won a Big Ten title as a track and field star for the University of Wisconsin. He even plays bass guitar in a rock band that plays ‘80s cover songs.

In addition to pictures of his band, on his Facebook page he’s got adorable photos with his family and shots of him on big game hunts in exotic locales. So he’s exactly the kind of dude you want to follow on social media.

However, once he became a judge, as a lawyer in the same town, it felt weird to ask him to be friends on Facebook. Because of the nature of my practice, I hardly ever appear in court. However, making a friend request slightly felt strangely like sucking up (but apparently writing an article in the local newspaper about him is completely different).

Well it turns out I’m not alone in my uneasiness. Two years ago, the Florida Supreme Court heard a case to determine whether a lawyer and a judge being Facebook friends would preclude the judge from being impartial if the attorney appeared before her. While the Court recommended against it, they held that judges could still be Facebook friends with attorneys.

However, earlier this month the Wisconsin Supreme Court heard a case to determine if it would be inappropriate for judges to be Facebook friends with non-lawyers appearing in their court.

The case originated in 2016 in Barron County. Circuit Judge Michael Bitney handled a case involving Angela Carroll, who filed a motion to adjust a custody arrangement she had reached with her son’s father, Timothy Miller. She claimed Miller abused her, which he denied.

After the case began, Bitney accepted a Facebook friend request from Carroll. She then proceeded to “like” 16 of his posts, “loved” two of them and commented on two of them. Although none of the posts were directly related to the pending custody case, Carroll shared or liked posts that were related to domestic violence.

Bitney then ruled that Miller had abused Carroll, he gave her sole custody and physical placement of their son and he ordered a review of Miller’s child support obligations.

When Miller discovered the Facebook friendship, he appealed Bitney’s decision. A state appeals court ruled in Miller’s favor, saying the judge’s actions created a substantial risk of bias, resulting in the appearance of partiality. It ordered that the custody case proceed with a different judge.

The case then went to the Wisconsin Supreme Court, who in a 4-3 vote agreed that the friendship did at least create the appearance of bias. The Court held that “the extreme facts of this case rebut the presumption of judicial impartiality,” which is a due process violation. Justice Annette Ziegler then strongly urged Wisconsin judges to “weigh the advantages and disadvantages of using electronic social media like Facebook.”

Many expect the U.S. Supreme Court to review the case and provide guidance for judges across the country.

In the meantime, I’ve decided to switch my Facebook name to ‘Nobody.’ Now when I give people’s posts a thumbs-up, it will say, “Nobody Likes This.”

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Reg P. Wydeven

Elder Law and Estate Planning Attorney at McCarty Law LLP
Hoping to follow in his father’s footsteps from a young age, Reg’s practice primarily consists of advising individuals on estate planning, estate settlement and elder law matters. As Reg represents clients in matters like guardianship proceedings and long-term care admissions, he feels grateful to be able to offer families thorough legal help in their time of need.

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