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Recent ethics opinion summary: ABA Standing Committee on Ethics and Professional Responsibility Issues Formal Opinion 462 Judge’s Use of Electronic Social Networking Media (2013)

By Peter Geraghty, director, ETHICSearch

What are the judicial ethics issues that a judge must keep in mind when using electronic social media?

Under what circumstances must a judge disclose that he has an ESM or “friend” relationship with parties that appear before him?

What judicial ethics issues are raised with regard to a judge’s interactions with ESM that relate to political and campaign activities of judges?

These are some of the issues addressed in the ABA Standing Committee on Ethics and Professional Responsibility’s Formal Opinion 462 Judge’s Use of Electronic Social Networking Media (2013) analyzed under the applicable provisions of the ABA Model Code of Judicial Conduct.

The committee began its analysis by observing that ESM has become “an everyday part of worldwide culture” that can be continually updated and is constantly evolving. The committee stated further that “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.” However, the committee also stated that when judges assume the bench, they “accept a duty to respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system … and must avoid impropriety and even the appearance of impropriety,” therefore, they must be very careful about their interactions with ESM.

Unlike verbal communications, the committee noted, comments posted on ESM sites can have an indefinite digital lifespan that can be copied and transmitted to “thousands of people without the consent or knowledge of the original poster” and can be misinterpreted and taken out of context. For these reasons, the committee singled out the following areas of concern for judges when interacting with social media:

  • When posting comments, judges should be mindful of Rule 2.4(C), External Influences on Judicial Conduct, and should avoid making comments that might convey the impression that persons or organizations are in a special position to influence the judge;

  • A judge should avoid postings that could be viewed as violative of Rule 2.9(A),  Ex Parte Communications;

  • Judges should avoid using ESM to obtain information about a matter pending or impending before a judge in violation of 2.9(C);

  • Judges should avoid comment about a pending or impending matter before in violation of Rule 2.10, Judicial Statements on Pending and Impending cases; and

  • Judges should not offer legal advice in violation of Rule 3.10, Practice of Law.

The committee also considered the extent to which a judge must disclose his ESM relationships or “friend” status with lawyers or other individuals who appear before him. The committee concluded that because of the casual nature of ESM communications, a judge would rarely have such an obligation. However, a judge should evaluate ESM relationships just as he or she would any other personal relationship. What matters most is not the fact that the relationship exists but rather the degree or intensity of the relationship. The committee stated:

… 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. Simple designation as an ESM connection does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person.

Because of the open and casual nature of ESM communication, a judge will seldom have an affirmative duty to disclose an ESM connection. If that connection includes current and frequent communication, the judge must very carefully consider whether that connection must be disclosed. When a judge knows that a party, a witness or a lawyer appearing before the judge has an ESM connection with the judge, the judge must be mindful that such connection may give rise to the level of social relationship or the perception of a relationship that requires disclosure or recusal … The 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.

The committee stated further that a judge should disclose on the record any information the parties or their lawyers might consider relevant to a motion to disqualify even if the judge believed there was no basis for the disqualification. But when the judge had no actual knowledge of an ESM connection that would give rise to an actual or perceived problematic relationship with an individual, the judge would not have an obligation to search all of his ESM or friend connections.

The committee also considered judicial ethics issues implicated in judges’ interactions with ESM in judicial and political election campaigns. Under Rule 4.1(a)(8), Political and Campaign Activities of Judges and Judicial Candidates in General, the committee stated that while a judge’s campaign committee may maintain an ESM site for fundraising purposes, a judge may not maintain his or her own site for such purposes. Under Rule 4.1(A)(3), judges should avoid anything that could be construed as “publicly endorsing or opposing a candidate for any public office.”  So, for example, a judge should avoid clicking on the “like” buttons on a political candidate’s website.

The committee also stated that a judge can privately express his or her views on judicial or other political candidates running for office on ESM, but only so long as he or she takes steps to prevent his or her views from becoming public, such as by setting appropriate privacy settings  that would restrict those who would have access to the judge’s ESM page.  

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