I was asked what advice I had, if any, for overly-enthusiastic young lawyers who try to contact judges or Masters through electronic social media. 

I do have advice, both on a professional and personal level.

Professionally:

For a wonderful recent analysis of social media and the judiciary, see “The Use of Social Media by Canadian Judicial Officers.”[2] This paper surveys judges, Masters and quasi-judicial officials and looks at how Canadian, US and UK jurisdictions deal with the use of electronic social media by judges.  What is clear is that there are no uniform rules, regulations, codes or recommended standards for judges, lawyers and the public to follow when it comes to the Court and electronic social media. 

While the study is thought provoking, judges and Masters are still left to their own judgment,[3] arrived at after a review of the Canadian Judicial Council’s Ethical Principles for Judges, and case law.  

What presence judges have on, and what use they make of electronic social media occupies a broad spectrum.  Some say that we must get with the modern world, be “out there”, be connected, and be aware of the changing world of technology.  We should use blogs, YouTube, Facebook, LinkedIn, Twitter and other social media outlets both to educate ourselves and to educate the public.

At the other end of the spectrum, some say that we don’t have clients anymore so we don’t need LinkedIn, cannot express opinions except through our judgments so we cannot blog, don’t have any friends so don’t need Facebook, and no one wants to talk to us so we don’t need chat rooms.

The reality is that for the under 40 crowd they find much, if not most of their information through electronic sources.  This will only increase. It is important that judges remain connected not only with the society in which they are asked to operate, but in the technology itself.  Issues relating to electronic communication are very prevalent in commercial cases[4] and in personal injury and family cases.[5]

I work from two first principles in forming my thoughts about electronic communication with a judge or Master, neither of which are new: 1) a judge or Master must assiduously guard his or her impartiality; and 2) the Courts are open and transparent. Using these two principles, if counsel want to contact the Court, I recommend that they observe some simple rules.

1. Know Rule 1.09. 

Rule 1.09 prohibits counsel from contacting the Court in an ongoing matter unless a) all counsel agree to the content of the out of court communication and that it be sent, or b) Court directs otherwise.  Communicating unilaterally and directly with the Court after the argument is finished, but before a decision is rendered might cause a mistrial, if the Court cannot disabuse itself of the contents of the uninvited communication.[6]

2. Act in haste; repent at leisure![7]

The majority of communication now, is electronic.  Think before you send.  Electronic communication has created a false immediacy to communication.  People ‘fire off’ emails with head-spinning rapidity and head-scratching lack of thought.  Correspondingly, the sender expects a response equally quickly.

With respect to emailing the Court, ask yourself: Do I need to communicate directly with the Court?  Is it uninvited?  Is it necessary?  Usually the answers are no, yes and no, respectively.  The unnecessary email is sent to the Court, anyway.

3. Don’t Rely on Automated Systems

Spell Check, auto correct, and auto-populate are the bane of email communications.  Our blind reliance on them is the result of a mix of convenience, misplaced faith in the infallibility of our computers and software, and, between you and me[8], the failure of modern primary education.  Spell & Grammar check and auto correct are no substitute for a thorough proof-read.  They drop the “u” with ardour, removing the colour and flavour of Canadian English.  Auto correct, unchecked, will put in some other word than you want, thereby changing the meaning and sense of your message.

Auto populate is the most pernicious and dangerous convenience feature.  You are typing a privileged email to your co-defendant, Jason Smith, on litigation strategy.  You type in “Ja”, and something appears in the “to” box, which you assume is Jason Smith.  You don’t check it.  Auto populate puts “Jamie Trimble” in the in box. You hit send. I have just received the privileged communication.  Privilege may be waived.  Where a lawyer might just tell you about the mis-send and agree to obliterate it from his system, I cannot, as a matter of impartiality, openness and transparency.

4. Beware the Unknown Unknowns[9]

The dreaded Meta-Data!!!  There are codes and unseen information in your documents and emails.  Meta-data may indicate what version it is that you are sending, and may show what changes are made.  Do you want to give this information away?  Strip out meta-data.  Better yet, don’t send text or a document.  Send only a PDF.

5. The Court Must Assiduously Guard its Impartiality

Any communication with a Judge or Master will likely be met with a response, copied to all other parties and counsel, attaching your letter to the Judge or Master, telling you that what you have done is improper, and referring you to Rule 1.09.

6. The Court is Open and Transparent

All communication is copied to all parties.  Your letter and the response become part of the Court record, open for all to see, unless a sealing order is made.

7. Think of the Optics.

Nothing like advertising to your opponents and legal colleagues that you don’t know the Rules and sent an ill thought out email to the Court, that wasn’t intended for the Court, that breached privilege, and contained all sorts of useful (to your opponent) but hidden (at least to you) information.

8. Think of the Marketing

Nothing like having to explain to your client what you did. L Nothing like telling the client that because you breached privilege, you may have committed an error, you have contacted LAWPRO, and they need to seek independent advice.

Personally (“connecting” with a Judge or Master)

Judges are people too.[10] They have families[11], friends,[12] and colleagues. Those people like to communicate electronically and social media sites often are the way of keeping in touch. Some Judges have Facebook, LinkedIn, MySpace or similar profiles. We’re not using these sights for marketing, but keeping in touch. Our sites, however, are usually fully locked down, with privacy settings are at their highest and security settings at their most restrictive.

Why? We are concerned about security and privacy. There are evil-doers out there!

More important, we are concerned about impartiality. While we want to communicate with our friends and relations, we want to maintain our impartiality. “Friending” someone on Facebook can be seen as affecting impartiality, especially where that person appears before the judge. Opinion is divided about this.[13]  Equally, judges should be wary about adding someone to a LinkedIn page unless that person is a friend.[14]

From a lawyer’s perspective, the converse applies. A lawyer should not attempt to “connect” or “friend” a judge. Unless you are a friend or someone who deserves a special position in the judge’s Facebook, MySpace or LinkedIn page, you have risked compromising the judge’s impartiality and privacy. Further, the mere making of a request to connect or friend the judge may have created an impression in that judge’s mind of you that is not favorable. 

Judges are aware that electronic social media sites mine a member’s information and link it to other members’ sites. I get several messages a day that someone wants to be added to my contact list. I know that the request was generated because I am connected to someone who is connected to someone who is connected to the person requesting the contact, or because that person separated by six degrees of separation has turned his or her Outlook address book to the social media host and I happened to have been copied on an email to that person 18 years ago. I simply shake my head and delete these.