Even in Texas It Is Not OK For A Judge To Share Details Of A Pending Trial Over Facebook

by: Peter J. Gallagher (@pjsgallagher)

I recently wrote an article for law360.com about when, if ever, it is appropriate for active judges to become “friends” with lawyers on Facebook and other social media. Courts and ethics authorities in several states have weighed in on the issue, with some banning judges from “friending” lawyers who regularly appear before the judge and others permitting all such “friending” unless it violates one of the canons of the Code of Judicial Conduct (e.g., the prohibition against ex parte communications between a judge and counsel).

According to a recent article from the Texas Lawyer (h/t Above the Law), Judge Michelle Slaughter, a judge on the Texas state district court, got herself into some hot water, not for the “friends” she kept on social media, but for broadcasting details of a pending trial to those “friends” over Facebook, including the following:

On the first day of testimony, Slaughter posted the following comments on her Facebook page: "Opening statements this morning at 9:30 a.m. in the trial called by the press 'the boy in the box' case"; "After we finished day 1 of the case called the 'boy in the box' case [the defendant was charged with unlawful restraint for allegedly keeping a 9-year-old boy in a 6 feet by 8 feet wooden enclosure that had been used as the child's bedroom], trustees from the jail came in and assembled the actual 6'x8' 'box' inside the courtroom!"; and "This is the case currently pending in the 405th!" The post included a link to a Reuters article about the case.

The "actual box" comment referenced evidence that had not yet been presented in the trial, and the Reuters article contained extraneous information that had also not been presented in the case.

Somewhat ironically, Judge Slaughter’s Facebook posts came after she warned the empaneled jury not to discuss the case with anyone, including over Facebook and other social media.

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Another New York Judge Approves Service Of Process Through Facebook

by: Peter J. Gallagher (@pjsgallagher)

On Monday, the Daily News reported on a "landmark" ruling by a Manhattan judge allowing a woman to serve her "elusive husband" with divorce papers via Facebook. The judge order that the divorce papers must be sent to the husband over Facebook "once a week for three consecutive weeks or until acknowledged." According to the article, the husband kept in touch with his wife by phone and through Facebook, but that he had no fixed address and refused to make himself available to be served. After all other conventional methods of service failed — he vacated his last known address in 2011, he had no job, the post office had no forwarding address for him, there was no billing address linked to his prepaid cell phone, and the DMV had no record of him — the judge allowed service through Facebook.

While interesting, this is not actually a landmark decision. Less than one year ago, a Staten Island judge permitted service via Facebook in a similar case. (Obviously, since this took place in my ancestral home, it went unnoticed — the latest proof that Staten Island truly is the "forgotten borough.") In that case, also involving a domestic dispute, a man was allowed to serve his ex-wife with "legal notice that he [did not] want to pay any more child support" via Facebook after more conventional methods of service failed. The man's ex-wife had moved from her last known address and did not provide any forwarding information to the post office. However, she maintained "an active social media account with Facebook," therefore the judge allowed her to be served through that Facebook account.

In addition, several federal courts have also addressed this issue. For example, in one case, the U.S. District Court for the Southern District of New York held that service via Facebook might not, on its own, comport with due process, but it was acceptable as a supplemental method in conjunction with other, more conventional, methods of service. In a different case, a different judge in the U.S. District Court for the Southern District of New York refused to authorize service via Facebook where the plaintiff could not demonstrate that the Facebook profile that the plaintiff proposed to use for service was in fact maintained by the defendant or that the email address listed on the Facebook profile was accessed by the defendant. Although these cases are among the few to have considered the issue, they appear to describe the approach courts are likely to take when faced with a request to permit service via Facebook — if all other methods are exhausted, or service via Facebook is one of several methods to be employed, and if there is some showing that the individual to be served actually maintains and accesses the Facebook account, then service via Facebook would probably be acceptable.

“Does Your Dog Bite?” What, If Any, Duty Does A Dog Owner Owe To A Trespasser?

by: Peter J. Gallagher (@pjsgallagher)

I loved the Pink Panther movies, and one of the more memorable scenes in the series involved Inspector Clouseau trying to pet an innkeeper's dog (or, more accurately, a dog that he thought belonged to the innkeeper:

Other than the fact that both involve a dog bite, this clip does not have much to do with the recent Appellate Division opinion in Ahrens v. Rogowski, but it is a funny clip and worth sharing.

In Ahrens, the Appellate Division was presented with the less humorous case of a woman who was bitten by a dog when "trespassing" on the dog owner's property. I put "trespassing" in quotes because, when I think of trespassing, I think of someone sneaking onto property late at night with nefarious motives, and that is not what happened in Ahrens. Nonetheless, plaintiff was trespassing in the legal sense when she was bitten by the property owner's dog and the Appellate Division was faced with what duty, if any, the owner owed her as a result.

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Free Speech In Condos and Co-Ops: Round III Goes To The Resident

by: Peter J. Gallagher (@pjsgallagher)

It is not quite Ali-Frazier or even Gatti-Ward, but the New Jersey Supreme Court just delivered its third opinion in the past seven years regarding the free speech rights of residents in common interest communities (condos and co-ops). In Dublirer v. 2000 Linwood Avenue, Owners, Inc., the Court ruled that a resident who was a regular critic of the co-op's board of directors had the right to distribute leaflets under apartment doors throughout the building. (We previously wrote about the Appellate Division decision that the Supreme Court reviewed on appeal – look here.) The Court held that the co-op's "House Rule" purportedly banning all soliciting and distributing of written materials, including the resident's leaflets, was an unconstitutional abridgment of his free speech rights. In doing so, the Court clarified the standard that should generally be applied when evaluating similar issues — which arise frequently in common-interest communities — and described the types of restrictions that could be adopted without infringing on the free speech rights of residents.

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When, If Ever, Can Judges Be Social Media “Friends” With Attorneys?

by: Peter J. Gallagher (@pjsgallagher)

Please check out a recent article I wrote for law360.com on whether judges can be “friends” with attorneys on Facebook or other social media without running afoul of the relevant ethics rules. Here is the opening paragraph:

“Social media has become a part of most lawyers’ personal and professional lives. The same is true for many judges. However, it is still not clear when, if at all, it is appropriate for a judge to be “friends” with a lawyer on social media, particularly when that lawyer appears regularly before the judge. While it is certainly true that, as some courts and ethics committees have observed, social media is fraught with peril for judges, no uniform rule has emerged on the issue. Some jurisdictions prohibit judges from being ‘friends’ with any lawyer who appears regularly before them, while others donot prohibit the practice unless the social media ‘friendship’ also implicates one of the canons of the Code of Judicial Conduct. The latter seems to be the better approach, but it has not been universally adopted and it is not clear that it ever will be.”

Check out the rest of the article here.