Nicole Black, The Daily Record Newswire
The majority of jurisdictions that have addressed the issue of judges having social media connections have concluded that it is generally permissible for judges to become online “friends” with attorneys appearing before them, as long as the judges are careful to avoid the appearance of impropriety, avoid ex parte communications, and otherwise ensure compliance with applicable ethical rules. (See, 2009 Advisory Opinion 08-176 of the New York Advisory Committee on Judicial Ethics, the Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline Opinion 2010-7, and the 2010 Ethics Committee of the Kentucky Judiciary Opinion JE-119).
However, a few contrary opinions have been issued: See, for example, California Judicial Ethics Committee Opinion Number 66 (judges may “friend” attorneys, but must “unfriend” those who appear before them and after doing so, must notify all parties of the “unfriending”); Florida Supreme Court Judicial Ethics Advisory Opinion 2009-20 (judges may join and participate on Facebook, but becoming “friends” with attorneys who may appear before them is impermissible); and Pierre Domville v. State of Florida, No. 4D12-556 (required judge, who was Facebook “friends” with the prosecutor in a case pending before the judge, to recuse himself.)
And now, the debate continues, with the issuance of Formal Opinion 462 by the American Bar Association in February. In it, the ABA addressed the ethical issues that arise when judges use social media in two distinct situations: when interacting with lawyers and others that might appear before them in court and during judicial campaigns.
In this article I’ll address the former situation and in my next article, I’ll discuss the ABA’s decision regarding the use of social media during judicial campaigns.
First, in assessing the issue of whether judges may use social media outside of judicial campaigns, the ABA’s Standing Committee on Ethics and Professional Responsibility wisely acknowledged that online interaction is simply an extension of offline interaction and thus judges’ use of social media (ESM) does more good than harm: “Social interactions of all kinds, including ESM, can be beneficial to judges to prevent them from being thought of as isolated or out of touch.”
Next, the committee discussed the need to evaluate the nature of judges’ social media connections and stressed the importance of context when doing so: “A judge who has an ESM connection with a lawyer or party who has a pending or impending matter before the court must evaluate that ESM connection to determine whether the judge should disclose the relationship prior to, or at the initial appearance of the person before the court ... In this regard, context is significant designation as an ESM connection does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person.”
The committee then described the process that judges must go through when evaluating the existence of known social media connections with parties appearing before them: “Because of the open and casual nature of ESM communication, a judge will seldom have an affirmative duty to disclose an ESM connection. When a judge knows that a party, a witness, or a lawyer appearing before the judge has an ESM connection with the judge ... (t)he judge should conduct the same analysis that must be made whenever matters before the court involve persons the judge knows or has a connection with professionally or personally.”
Importantly, the committee noted that judges do not have a proactive duty to research their social media contacts in order to determine if online relationships exist: “(N)othing requires a judge to search all of the judge’s ESM connections if a judge does not have specific knowledge of an ESM connection that rises to the level of an actual or perceived problematic relationship with any individual.”
All in all, this portion of the opinion was very well thought out and the committee did a good job of comprehending and analyzing the nature of social media relationships. The guidelines established are useful and will go far in aiding judges in understanding and evaluating their obligations to disclose social media connections with those who appear before them.
As for the use of social media by judges during judicial campaigns, you’ll have to wait until my next article. But sit tight. It’ll be worth it. I suspect you’ll find that article to be just as interesting and enlightening as this one.
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Nicole Black is VP at MyCaseInc.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycaseinc.com.
