Social Networking in the United States

And Judges

If a judge decides the benefits of using online social media outweigh the risks, the “connected” judge must take whatever steps are necessary to prevent online socializing from undermining the integrity and impartiality of the judicial office.

Like apparently almost everyone else, many judges want to join online social network to stay in touch with family members, reconnect with childhood friends, classmates, and former colleagues, and form new relationships with people they meet on or off the job. According to the Conference of Court Public Information Officers, of the 284 state court judges who responded to its 2012 survey, 46.1 percent use social media sites.

As social media becomes even more commonplace and younger judges take the bench, the percentage will no doubt increase as will judges’ confidence that they can use social media without crossing ethical boundaries. Many currently still have reservations. In the 2012 survey, asked to react to the statement, “Judicial officers can use social media profile sites, such as Facebook, in their personal lives without compromising professional conduct codes of ethics,” 44.3 percent of the judges agreed or strongly agreed, up from 41.4 percent in 2010. Asked to respond to the statement, “Judicial officers can use social media profile sites, such as Facebook, in their professional lives without compromising professional conduct codes of ethics,” 27.5 percent agreed or strongly agreed, up from 24 percent in 2010.

So far, only three judges have been formally, publicly disciplined for engaging in misconduct on Facebook, although there have been a number of newspaper reports of other questionable judicial social media use. Of course, before and without Facebook, judges have engaged in misconduct similar to that in those cases (ex parte communications, providing legal advice, and making comments on public cases). But the ease of communication on social media and the evident lowering of inhibitions while online portend an increase in careless talk by some judges. On the other hand, because judges are accustomed to being mindful both on and off the bench about possible ethical pitfalls, they may be prepared to avoid the haphazard use of social media that has led to scandal for public officials and notoriety for private individuals.

All of the judicial ethics committees that have issued opinions on the subject have advised that judges’ use of social media is not inherently and inevitably inconsistent with ethical standards, but all have also warned judges to proceed cautiously while socializing on the Internet. (The American Bar Association Standing Committee on Ethics and Professional Responsibility has also weighed in on the issue in a recent opinion on judicial ethics. See Briefs in this issue at page 245.) Some warnings from ethics committees are good advice for all social media users: for example, remember that online communications are much more public and permanent than offline conversations and be familiar with social networking site privacy controls. Other warnings emphasize the unique role of judges that requires them to accept restrictions on their conduct that non-judges would consider burdensome even as they take advantage of the latest technology to engage in the very human desire to connect and communicate.

The current focus in the discussion of judges and online social media is whether judges may “friend” attorneys on social networks who appear before them in court. Judicial ethics advisory committees are split on the issue.

Those committees that disapprove the practice draw a bright line that emphasizes the appearance of influence and impartiality that may be created if judges are connected online with some of the attorneys who appear before them but not with others. Although not mentioned in these opinions, another consideration is the impact on the appearance of fairness if a judge is “friends” with an attorney on Facebook, for example, but ignores the “friend” request of the attorney’s self-represented opponent in a case, a very likely scenario in light of the number of pro se litigants in the courts.

The committees that have issued less restrictive opinions believe the distinctive meaning of “friend” on social networks, which reasonable people with knowledge of these sites would understand, neutralizes the appearance problem. These opinions also see no reason to treat online friendships differently than the relationships with attorneys that judges are allowed to maintain in the real world. (This advice raises the possibility that attorneys will begin automatically and routinely starting online connections with judges as soon as their cases are assigned regardless whether they have any prior connection to the judges.) Most of these opinions do not pre-approve all social media connections between judges and attorneys who appear before them, leaving to judges the fact-specific inquiry necessary to determine whom to connect with and whether the connection requires disqualification.

Regardless whether a bright line is required by the code of judicial conduct, prudence suggests that, as a best practice, judges should take whatever steps are necessary and possible to prevent their use of social media from blurring the line between their personal and judicial lives, which could damage the privacy of one and the integrity of the other. One solution is for a judge to create separate online identities, one with a focus on her personal life, downplaying her judicial role, and one with the goal of public outreach on behalf of the court, rather than socializing. A third might be necessary for her campaign if she has to run for election or retention. There are many ways to accomplish this, with the exact mechanism for doing so varying depending on the site or sites a judge chooses to use.

On the personal side, the judge should be very selective about her connections (excluding those likely to appear before her) but less strict, although still cautious, about what she posts and “likes.” In contrast, on the court-centric page, she would have to be very careful about what is included to maintain judicial dignity and impartiality without abusing the prestige of office but could, for example, post court news and decisions in high-profile cases, remind users of changes in court rules or hours, welcome new judges, and announce her appearance at community meetings to discuss the role of the judiciary. This page should be inclusive and set up so any attorney and all members of the public could follow along without the judge having to pick and choose.

Regardless how she decides to formulate her online presence, there are numerous do’s and don’ts a judge should keep in mind while navigating social networks:

Do assume everything you say and do on a social network can become public
Do educate yourself about the policies and privacy controls of the sites and update your settings every time there is a change
Do keep track of the contents of your page
Do consider the recusal implications of social networking
Don’t engage in ex parte communications
Do immediately disconnect from anyone who attempts an ex parte communication with you
Don’t conduct independent investigations or view litigants’ pages
Don’t provide legal advice
Don’t comment on pending cases or allow others to do so
Do provide guidance to court staff about social media use
Don’t access social networks while on bench
Do be dignified in every comment, photograph, and status update
Don’t allow others to make demeaning or offensive posts that will appear on your page
Don’t join online groups for organizations that practice invidious discrimination
Don’t join a group if a relationship with that group would erode confidence in the independence and impartiality of judicial decision making
Do comply with restrictions on political conduct while on social networks
Do consider closing online accounts if problems arise

Courts and judicial educators could provide appropriate training or assistance to familiarize judges with the technological aspects of social media.

Social media use is fraught with peril for all users, but more so for judges as it complicates both their personal lives and judicial roles. A judge cannot be a casual user of social media and must be willing to take whatever steps are necessary to comply with the code of judicial conduct. Each judge will have to decide for himself or herself if the benefits of online social media outweigh the inevitable risks and constant vigilance. [1]

Social Networking

Social Networking in the United States

And Judges

Social Networking in E-Commerce Law

Social Networking and the Legal Aspects of E-Commerce

Resources

Notes

See Also