Social Media Can Create Ethical Issues for Employment Arbitrators

“Friending” lawyers may create some ethical issues for arbitrators. The Florida Supreme Court Judicial Advisory Committee criticized the practice of judges friending lawyers. In NY, the same local body concluded that judges are not prohibited from joining a social network, but cautioned them to use good judgment to doing so, as it might create the impression of an attorney’s “special influence”.

Arbitrators should be aware of the public nature of any comments they make online. Clearly, arbitrators should avoid using social media sites, electronic mailing lists, or blogs to have ex parte communication in pending cases or to comment in any way on pending cases. Arbitrators should separate their personal and family social networking, such as through Facebook, from their professional networking on such sites as Linked In.

Arbitrators who work in more than one state should be mindful that each State may have different approaches to judicial participation in social media. To the extent the arbitrator is aware of any connection to counsel in a pending case, that connection should probably be disclosed, certainly if a reasonable conclusion could be made that the connection could be used to influence the arbitrator.

Information on the arbitrator’s web site has been used to support a motion to vacate an arbitration award. See Benjamin, Weill & Mazer v. Hurwitz-Kors, 195 Cal. App. 4th (2011). Other courts have declined to vacate on various grounds, including a failure to establish partiality. Nevertheless, arbitrators should be aware that parties may look for publicly available information about the arbitrator before, during and even after the hearing, and may use it to seek to vacate the proceedings or the award.

For general information on judicial ethics advisory opinions around the country concerning the use of social media see www.ncsc.org/Topics/Media/Social-Media-and-the-Courts/State-Links.aspx.