We have been on the topic of professionalism for years. The challenges to the practice of law are real and troubling. See The New Professionalism (July 2013), Feigning Sleep (August 2016), Antipodal or Antithetical (July 2021), or The Pet Peeves of Judges (February 2021). The topic is not new. There are some who engage in the practice of law with less-than-stellar compliance with rules or professionalism.
When the pandemic struck in March 2020, the Florida OJCC shifted to mandatory telephonic mediation. The intent was simple - decrease the foot traffic in the various district offices, minimize the risk of infection to staff and visitors, and to facilitate the mediators. It worked incredibly well and the OJCC remained effective throughout the pandemic. To the benefit of so many, the practice of law persisted from home or other quarantine or recovery.
The remote or virtual mandate did not apply to hearings. For the most part, Florida Judges wanted to continue to conduct hearings. It was our consistent goal to provide such opportunities to the public, to process paperwork, and to keep the workers' compensation community functioning. The videoconference process was old hat at that time, with the VTC system having persisted for 20 years. But, there was room for improvement, and the pandemic drove us to Internet-based platforms. We soon settled on Zoom, but left the final decision on live or virtual to each judge on a case-by-case basis.
Since then, we have had periodic challenges with unprofessional attorneys on video. Some wore dress clothes for appearances on Zoom, but an occasional instance occurred when someone rose to retrieve something and revealed that below that suit coat were merely shorts and flip-flops (in one public meeting I attended, a Circuit Judge did similarly). We had many appear for hearings in casual clothes, eschewing the jacket and tie completely. We had inappropriately dressed individuals that walked through the background of Zoom proceedings. We preached professionalism at every chance, but there were challenges. See Hearings in the Age of Video (May 2020),
There has been much lamenting of the lack of decorum and professionalism by some attorneys. I have heard many judges across the country bemoan the behavior of lawyers and witnesses on video and in person. Much attention was directed at virtual, but the casualness problems and diminished professionalism largely predated the pandemic. The relief of the pandemic ending seems to have left some in a habit of casualness. Some hearing participants have appeared from bed, some ill-dressed or disheveled, some unprepared, and more. But now we hear about the unprofessional conduct of judges.
Certainly, unprofessional judges are not new to these pages. See Sign Language and Curiosities (July 2022), Another Judge Makes the News (May 2022), Public Confidence (July 2022), and Revisiting a Judicial Discipline (May 2022). What those all have in common is the involvement of an American Judge in poor behavior. It is seemingly not difficult to find poor judicial behavior despite our rigorous Code of Judicial Conduct.
November 2022 brought news of an inappropriate judicial appearance in a Zoom proceeding. Thankfully, it was neither in Florida nor America. It was, however, somewhat sobering and disappointing. The Independent reports that a Columbian Judge has been suspended over a virtual hearing appearance. The judge is Hon. Vivian Polania, and she is said to have previously:
"repeatedly received warnings for posting pictures on her personal Instagram account in scantily clad outfits with clothing discount codes alongside them."
The link to the Instagram account is included in the cited articles, but is not repeated here; I may not be able to define inappropriate judicial attire, but "I know it when I see it," paraphrasing Mr. Justice Potter Stewart, Jacobellis v. Ohio, 378 U.S. 184 (1964). When I read the post, I was somewhat on the judge's side of freedom of personal expression. What one wears during off time is arguably not a professionalism issue. However, having briefly visited the Instagram page, I am now squarely in the opposite camp and dismayed that such postings are not themselves grounds for discipline. The attire choices are not appropriate for a judge, and in fact not appropriate for Instagram. I am surprised that the platform allows them.
While those postings could thus be troublesome under our Code from the standpoint of judicial demeanor, it is also potentially troublesome from the appearance of marketing or endorsing a product. Any appearance that a judge is endorsing or marketing some product has the potential for challenges. In America, there are certain constraints on personal expression that come with the "judge" title and responsibilities. The distinction with the Columbian system is not patent but is intriguing.
The Independent notes that Judge Poliana defended her Instagram postings as "simply expressing herself as a 'braless and open-minded' person." The same "simply expressing" justification could likely be applied to a variety of speech in America that is simply not allowed by the Code. The New York Post labeled the photos as NSFW (Not Safe for Work) in its coverage.
But, in June 2021, according to PrimalInformation, Judge Polania was conducting a "court hearing related to a car bombing," on a video platform. It is suggested that she was unaware that her camera was active at the time, until one of the participants alerted her. She was, allegedly, "smoking in her underwear during a Zoom hearing," and was in bed. Upon learning the camera was on, she reportedly turned it off. The half-minute clip became part of a judicial complaint, and will likely be a viral sensation at some point.
While the appearance was deemed problematic, the New York Post noted that some also perceived her as appearing to have "sleepy eyes.” There were allegations that she was "slurring her words." At a minimum, this might suggest a lack of preparedness or professionalism.
Reportedly, "Colombia’s National Commission of Judicial Ethics" received a complaint from one of the attorneys involved in the hearings and investigated. According to PrimalInformation, the judge was "handed a three-month suspension," until February 2023, "because she did not respect the parties at the hearing and failed to comply with the judicial dress code." The demeanor was sanctionable. Should the attire of attorneys in workers' compensation proceedings here be less so?
Judge Polania responded to the "scandal" by "denying the allegations." She explained that she "had to lie down during the hearing because she suffered an anxiety attack and had low blood sugar." She complained of being overworked, suffering mental health issues, and being "bullied by her fellow judges . . . and threatened with disciplinary actions because of the way she dresses." In any instance, there is no justification for "bullying." However, there is likewise no justification for judicial behavior that brings disrespect for and disrepute to the bench or legal system(s).
There are challenges enough in this practice of law. The professionalism debates will continue, and judges will be persistently drawn into various disputes, some even that may have gotten off the rails to some degree. As judges, there is a persistent and pernicious need for us to be above those frays. There is a demand for transparency, patience, dignity, and an appropriate demeanor, a persistently appropriate demeanor. We might debate how a judge appears outside the office, and there is room for that to some degree (that sleeveless Grateful Dead shirt and sandals might fly at the beach, but there are limits).
As noted in Revisiting A Judicial Discipline (May 2022), the Florida Supreme Court has "reminded that a ‘judge is a judge 7 days a week, 24 hours a day.’” I am confident that the Justices would feel the same whether the complained-of conduct was in a "slurred speech" video hearing from bed, or on a social media account. While we might have an intriguing debate in a classroom or conference on that topic of personal expression and social media, I find myself doubtful that our court would fail to discipline a judge with a similar Instagram or other social media presence. The Columbian authorities certainly did not fail as regards the hearing from bed. Whether they will ever address the social media aspect of this judge is to be seen.
