Judges and Social Media: “Friends” with Costs and Benefits

Vol. 22 No. 3

By

Benjamin P. Cooper is the Jessie D. Puckett, Jr. Lecturer and Associate Professor of Law, University of Mississippi School of Law. This article expands on matters addressed in a talk to the Mississippi Trial and Appellate Judges Conference in October 2013.

Judges, like all Americans, are making increased use of social media, albeit at lower frequency than the average user. According to a 2012 Report of the New Media Committee of the Conference of Court Public Information Officers, 46.1% of judges report using social media, up from 40.2% in 2010.1 Yet judges remain concerned about whether they may do so without running afoul of judicial ethics codes.2

Judges have good reason for concern, as examples of their colleagues using social media in ethically dubious ways abound. In North Carolina, a judge was reprimanded for using social media to conduct independent research on a party appearing before him and for engaging in ex parte communications with one of the lawyers.3 In Alabama, a judge was reprimanded for making comments on his Facebook page about contempt proceedings in his courtroom against an Alabama lawyer.4

More and more bodies charged with regulating judicial conduct have observed that judges need guidance on how, and whether, to navigate social media, and several states5 and the American Bar Association have now weighed in with ethics opinions on judges’ use of social media. Recognizing, as the ABA opinion does, that judges should not become “isolated” from the community in which they live, and the undeniable reality that social media “has become an everyday part of worldwide culture,”6 these opinions unanimously approve judicial use of social media—to a point. As the ABA opinion concludes, “[J]udicious use of [social media] can benefit judges in both their personal and professional lives” and also keep them from being “thought of as isolated or out of touch.”7 These opinions provide much helpful guidance to judges on how to use social media without violating their applicable judicial code of ethics.

The ethics opinions on social media, including the ABA’s recent opinion, fail judges, however, by stopping short of resolving a couple of critical issues: whether judges may connect on social media with lawyers and others who may appear before them, and whether online friendships formed in those connections must be disclosed to litigants. These issues will not go away by themselves because judges know many lawyers, and judges are using social media. Without clear guidance on the permissible scope and nature of judge-lawyer online contacts, and their consequences, social media sites will continue to present a minefield for judge-users. Today judges in a majority of states still lack needed clarity from their ethics regulators on these points, and the ABA opinion fares no better, noting simply that the “context” of such friendship is “significant” in analyzing the judge’s duties.8

This article first describes the helpful advice contained in the state and ABA ethics opinions, which speaks to the unique characteristics and unique dangers that social media poses for judges. I then turn to the chief shortcoming of most of those opinions—their failure to offer judges clear guidance on the central issue of social media friendship. I argue that judges should be free to “friend” anybody, provided that if such friendships involve lawyers or litigants in a case before the judge, those “friendships” should be fully disclosed to litigants.

Unique Characteristics of Social Media

The ethics opinions issued by various states, as well as the ABA’s recent ethics opinion, serve to enlighten judges on some of the unique characteristics of social media.

Nothing Is Private

Several of the ethics opinions issued to date contain an essential warning for judges: they should not expect any privacy on social media. The New York and California opinions make this point well.9 Judges who use social media may be lulled into thinking that they can maintain privacy by adjusting their privacy settings to the highest level. On Facebook, for example, users can limit access to their Facebook posts only to “friends.” While a prudent step, this does not ensure the privacy of users’ information for two reasons. First, as the ABA opinion makes clear, the judge must log on regularly to Facebook, or be “at risk of not knowing the latest update in privacy settings or terms of service that affect how the judge’s personal information is shared.”10 At times, Facebook has unilaterally changed its users’ privacy settings.11

Second, even if a judge decides to share information only with his “friends,” the public may still see important information about the judge. By default, Facebook will make a judge’s “friends” list publicly accessible.12 A judge who assumes that she is keeping her friends’ identity private from general users by adjusting that setting may not account for the fact that one or more of those Facebook friends may allow the public to see their “friends” lists. There is a significant likelihood, then, that the plaintiff’s lawyer in a given litigation matter will find out if the defense lawyer is Facebook “friends” with the judge. (Of course, the larger point, discussed below, is that if a defense lawyer is Facebook friends with a judge on that lawyer’s case, that online friendship should be disclosed to plaintiff’s lawyer.)

Information Is Easily Disseminated

Another danger cited by several ethics opinions is the shockingly easy way in which information can be disseminated on social media networks without the user’s permission. A judge could have a Facebook account with the strongest privacy settings (limiting access only to “friends”) and could be very selective in deciding who she will allow to be a “friend,” but still find her information disseminated widely on Facebook. This could happen in a couple of different ways. First, one of the judge’s “friends” could share the judge’s post with his “friends” (who could, in turn, share the comments with his friends, etc.). Second, if a judge comments on a “friend’s” page, that comment can be viewed by the “friend’s” “friends.” These features of social media led the California Judges Association Judicial Ethics Committee (“California Committee”) to warn: “Once something is sent out into the community, the sender has lost control of it.”13

Postings Can Be Taken out of Context

This risk of unexpected dissemination is heightened by the fact that social media postings are prone to be read in a misleading light. As the ABA opinion cautions: “[R]elations over the internet may be more difficult to manage because, devoid of in-person visual or vocal cues, messages may be taken out of context, misinterpreted or relayed incorrectly.”14 The speaker may mean something as a joke, but in the virtual world, the audience may not understand the speaker’s meaning.

Postings Are Permanent

The easy dissemination of information means, among other things, that users’ posts are permanent. Even if a user deletes a post, it may have already been copied or shared on others’ pages. As a result, as the ABA explained in its opinion, a judge’s posts have “long, perhaps permanent, digital lives such that statements may be recovered, circulated or printed years after being sent.”15 In the non-virtual world, by contrast, if a person says something stupid, the witnesses may forget it, and that’s the end of it.

Others Can Comment on the User’s Page

Finally, the California ethics opinion warns judges of another unique aspect of social media: the ability of others to comment on the judge’s page.16 If the judge’s “friends” make inappropriate comments on the judge’s page, other viewers may regard the existence of those comments on the judge’s page as the judge’s endorsement of those comments.

Unique Ethical Dangers Posed by Social Media

In addition to highlighting the unique qualities of social media, the new wave of state judicial ethics opinions warn judges about the unique ethical traps that may await them. This section reviews the sound guidance contained in some of those opinions.

Judges Should Not Comment on Pending Cases on Social Media

The Model Code of Judicial Conduct severely limits judges’ ability to publicly comment on pending cases.17 Social media, of course, makes it alarmingly simple for users to make “public” comments. Indeed, the ease with which information is viewed, shared, and disseminated on social media led the California Committee to warn judges that they should consider all of their comments on Facebook to be “public.”18 Since most judicial ethics rules drastically limit judges’ ability to publicly comment on pending cases, the safest course for judges is to make no comments whatsoever about pending cases on social media.

Judges Should Be Careful to Avoid Ex Parte Communications on Social Media

The Code of Judicial Conduct prohibits judges from engaging in ex parte communications.19 In the social media sphere, it is easy for judges to avoid making ex parte communications by following a bright-line rule: never communicate on social media about one’s pending cases.20 In any jurisdiction, if the judge is “friends” with a lawyer who is appearing in the case, a comment about the case on social media violates the prohibition on ex parte communications, in addition to the prohibition on public comments, noted in the previous subsection.21

Judges Should Not Engage in Independent Investigations on Social Media

Facebook and other social media make it exceedingly easy for judges to independently investigate cases in violation of the Code of Judicial Conduct.22 With a few keystrokes—by, for example, navigating to the Facebook page of a witness—a judge could learn information about a case in violation of the rule. As the Ohio opinion warns: “A judge should not view a party’s or witnesses’ page on a social networking site and should not use social networking sites to obtain information regarding the matter before the judge….”23

Judges Should Consider Carefully What They Say on Social Media

The Code of Judicial Conduct also extends to judges’ extrajudicial activities, and social media again poses unique dangers to judges with respect to their extrajudicial responsibilities. Among other responsibilities away from the bench, a judge must avoid “participat[ing] in activities that will interfere with the proper performance of the judge’s judicial duties” or that would “appear to a reasonable person to undermine the judge’s independence, integrity or impartiality.”24 As one aspect of fulfilling this obligation, judges should avoid “expressions of bias or prejudice … even outside the judge’s official or judicial actions.”25

Social media provides a platform for an indiscreet judge to violate this prohibition either by making an inappropriate comment or by otherwise demeaning the judicial office. The Supreme Court of Ohio Board of Commissioners on Grievances and Discipline (“Ohio Committee”) emphasizes that “[a] judge must maintain dignity in every comment, photograph, and other information shared on the social network.”26 Similarly, the California opinion cautions that judges should think very carefully about what they post on social media: “While it may be acceptable for a college student to post photographs of himself or herself engaged in a drunken revelry, it is not appropriate for a judge to do so.”27

Again, the unique characteristics of social media pose a special danger here. A judge could set his privacy settings at the highest possible level and also limit his “friends” to people with whom he has a close relationship. The judge could then post an off-color joke that he believes that his friends will find funny, and his friends might find the joke entirely appropriate. But that joke could then easily be circulated to others who do not understand the judge’s humor or the context in which the judge made the joke. Those individuals might find the joke offensive and initiate disciplinary proceedings against the judge. As the ABA opinion warns, the easy dissemination of information on social media “has the potential to compromise or appear to compromise the independence, integrity, and impartiality of the judge, as well as to undermine public confidence in the judiciary.”28

A Judge Should Monitor Comments on His Social Media Page

Another unique aspect of social media is the fact that others can post comments on a user’s Facebook page. Those comments could be racist, sexist, or otherwise demeaning to the judicial office if they are attributed to the user. Is the user responsible for those comments? The California ethics opinion is the only one to address this issue to date, concluding that a judge does bear responsibility for content posted by others on his page: “A judge is obligated to delete, hide from public view or otherwise repudiate demeaning or offensive comments made by others that appear on the judge’s social networking site. Moreover, a judge has an obligation to be vigilant in checking his/her network page frequently in order to determine if someone has placed offensive posts there.”29

Judges Should Be Careful About What They “Like” on Social Media

The ethics opinions identify one other special danger posed by social media, related to the ability to endorse or “like” other individual or organizational users. The opinions warn judges that by doing so they may violate prohibitions against (1) “abus[ing] the prestige of judicial office to advance the personal or economic interests … of others”30 and (2) “publicly endors[ing]” a candidate for “public office.”31 Thus, as the California opinion reasons, just as a judge cannot put up a yard sign endorsing a political candidate or a local business, a judge cannot “like” a political candidate or local business on social media.32

Judges and “Friendship”

For all the good advice contained in these ethics opinions, they fail to give judges clear advice on perhaps the most critical issues: (1) who may the judge “friend” on social media, (2) does a judge have to disclose social media connections to litigants, and (3) do social media connections require recusal? The ethics opinions to date are in conflict over these issues, and the ABA’s recent opinion fails to provide clarity.

Judges’ social media connections primarily implicate two provisions of the Code of Judicial Conduct:

(1) “A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety[;]”33 and

(2) “A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.”34

Does a social media friendship with a lawyer create the “appearance of impropriety” or “convey the impression” that the lawyer “is in a position to influence the judge?”

Split of Authority on “Friending”

Florida, Massachusetts, Oklahoma, and Connecticut take a strict view on the issue of social media friendship, forbidding a judge from friending lawyers who “may appear before the judge…”35 The Florida opinion, which the Massachusetts, Oklahoma, and Connecticut opinions all followed, emphasizes that although social media friendship between a judge and a lawyer does not in fact mean that the lawyer is in a special position to influence the judge, it does convey that impression, thus violating the Code of Judicial Conduct.36 The Florida Supreme Court Judicial Ethics Advisory Committee’s (“Florida Committee”) concern is that “friending” requires a process of selecting some individuals while rejecting others and the communication of that selection in the public forum of a social networking site. Friending thus “creates a class of special lawyers who have requested this status,” and “these lawyers as a group, in contrast to other lawyers who do not participate in social networking sites or who choose not to ask the judge to accept them as the judge’s ‘friend,’ would appear to the public to be in a special relationship with a judge.”37

Several other states—New York, Kentucky, South Carolina, Maryland, and Ohio—take a more permissive view of social media friendships and generally permit judges to be friends with lawyers who may appear before them.38 The Kentucky opinion finds that merely being connected with a lawyer on social media does not violate the Code of Judicial Conduct.39 Likewise, the New York State Advisory Committee on Judicial Ethics (“New York Committee”) offers the view that there is nothing wrong with social network connections by themselves, but that the judge must “consider whether any such close online connections, alone or in combination with other facts, rise to the level of ‘close social relationship,’ requiring disclosure and/or recusal.”40

The California Committee takes a middle ground approach. The California opinion says that a ““per se prohibition of social networking with lawyers who may appear before a judge is not mandated by the Canons.” Instead, the California opinion says to look at a variety of (nonexclusive) factors in determining whether there is an appearance of impropriety, including:

  • the nature of the social networking site,
  • the more personal the nature of the page, the greater likelihood of an improper appearance,
  • the number of “friends” on the page,
  • the judge’s practice in determining whom to include, and
  • how regularly the attorney appears before the judge.41

Finally, the California opinion says that it is impermissible for the judge “to interact with attorneys who have matters pending before the judge” and that any such lawyers should be “unfriended.”

As for the ABA’s recent opinion, although it provides useful guidance on a number of other issues, it does not give a clear answer to the question of whether judges may connect on social media with lawyers who may appear before them. Instead, the ABA mentions that the state committees “have expressed a wide range of views” on the issue and notes that “designation as [a social media] connection does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person.” The opinion goes on to advise lawyers that “context is significant.”42

The ethics opinions are also split on whether judges should disclose online friendships as part of the judge’s obligation to “disclose on the record information that the judge might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.”43 Only a few jurisdictions have offered an opinion on this critical issue.

The California Committee opined that judges should disclose all online friendships:

“The need for disclosure arises from the peculiar nature of online social networking sites, where evidence of the connection between the lawyer and the judge is widespread but the nature of the connection may not be readily apparent. Assuming that including the lawyer was permissible, disclosure should be sufficient to dispel any concerns that the attorney is in a special position to influence the judge or that the judge would not be impartial.”

The New York, Kentucky, and ABA opinions conclude that judges should decide whether to disclose online friendships on a case-by-case basis.44 The ABA opines that judges should “very carefully consider whether [social media] connections must be disclosed” if the judge and the lawyer engage in “current and frequent communication.”45 The ABA opinion concludes, however, that “because of the open and casual nature of ESM [electronic social media] communication, a judge will seldom have an affirmative duty to disclose an ESM connection.”46

The Need for Clear Guidance

The problem with the ABA and most of the state ethics opinions is that they do not provide judges with clear guidance concerning whom they can connect with on social media and when those connections need to be disclosed to litigants. Some of the ambivalence in the opinions undoubtedly reflects uncertainty about what is signified by “friending” someone on social media. In some cases, users become social media “friends” with people whom they would describe as friends in the non-virtual world, but in other instances, social media “friends” would not even qualify as real world acquaintances. The Ohio opinion artfully captured this issue: “A rose is a rose is a rose. A friend is a friend is a friend? Not necessarily. A social network ‘friend’ may or may not be a friend in the traditional sense of the word.”47 Some people are picky about whom they will “friend” on social media, but others will friend anybody, even people whom they have never met. This makes it difficult to ascribe meaning to social media “friendship,” and thus to formulate rules governing such friendships.

Under these circumstances, the confusion of some ethics committees concerning social media “friendship” is perhaps understandable, but their confusion has left judges in most states without any clear guidance. Thus, although judges are generally free in most states to participate in social media, a large part of which is, as the name “social media” suggests, making online connections, they are unsure of what connections they can make.

Further, the ethics opinions are largely correct in concluding that social media “friendship” is ambiguous, but some of them draw the wrong conclusion from that ambiguity. The ethics opinions give these loose connections far more power than they deserve, when most people understand, as the Ohio opinion articulates, that social media “friendships” tend to be rather inconsequential. People who are “friends” on social media may be very close, but they also may barely know each other.

A Better Approach

A better approach to these issues would be to provide bright-line rules for judges that reflect the common understanding of these social media connections. First, judges should be able to connect with lawyers on social media, even lawyers who may appear before them. Most people understand that, as the Ohio opinion notes, being “friends” with somebody on social media is much different from our traditional notions of friendship. In reality, connections on social media often mean very little and therefore do not create an “appearance of impropriety” or “convey the impression that any person or organization is in a position to influence the judge.” Some state ethics committees and the ABA have attributed too much power to social media connections.

Ethics committees should also draw a second bright-line rule: judges should be forced to disclose to the litigants any relevant social media connections (i.e., “friendships” with lawyers, parties, or witnesses) as the California opinion requires.48 The Model Code of Judicial Conduct requires judges to “disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification,”49 but judges in jurisdictions outside of California are left without guidance as to whether social media connections qualify. A bright-line rule like California’s would provide clarity and would also help maintain the litigants’ and the public’s confidence in the judiciary by ensuring that everybody shares the same information concerning social media connections. As Justice Louis Brandeis famously said, “Sunlight is … the best of disinfectants.”50

A transparent approach putting everybody on a level playing field will also reduce shenanigans intended to evade regulation. Take, for example, judges who have social media connections with lawyers, telling those lawyers to “de-friend” them when they appear before the judge, and then reconnect after the case is over.51

A bright-line disclosure rule may deter judges from using social media at all, since they would have to deal with the hassle of making disclosures which may invite disqualification motions. But the current regime in most states already has a chilling effect on judges’ social media activity, to the extent that judges lack guidance on whom they can “friend” and whether they have to disclose such friendships.

Once the judge discloses any relevant social media connections, the parties can decide whether the disclosure warrants any further action, such as a motion for disqualification. On the difficult question of whether social media friendships require disqualification, the ABA and those state committees that have looked at the question are correct in my view that merits of disqualification are not susceptible of any bright-line rules but must be evaluated on a case-by-case basis.52 Social media connections alone should not cause a “judge’s impartiality to be reasonably questioned,” but if those social media connections are part of a close friendship between the judge and the lawyer, then the judge should recuse himself. As the New York opinion concludes, “the mere status of being a ‘Facebook friend’ without more is an insufficient basis to require recusal…. Interpersonal relationships are varied, fact-dependent, and unique to the individuals involved.” The Maryland and Kentucky opinions have reached a similar conclusion.53

Conclusion

Judges are making increased use of social media, but they remain concerned about whether that use runs afoul of the applicable judicial ethics rules. Several states’ judicial ethics authorities, and very recently the ABA, through its Standing Committee on Ethics and Professional Responsibility, have weighed in on the subject, providing clear and helpful guidance on a variety of issues. They fall short, however, on perhaps the most critical issues: they do not provide judges with clear guidance on whether they can connect on social media with lawyers and others who may appear before them and whether such connections must be disclosed to litigants.

These opinions perhaps overstate the power, and potential for abuse, of these online connections. Because people generally understand that social media “friendship” tends to be less significant than traditional friendship, these connections alone should not create the “appearance of impropriety.” Therefore, the best approach to the issue would be to allow judges to freely “friend” anybody on social media, provided that they disclose all relevant connections to litigants on matters before them. All should understand, however, that as a practical matter, the specter of that duty to disclose may serve as a deterrent to “friending” certain lawyers in the first place, depending on the jurisdiction.

Endnotes

1. Conference of Court Public Information Officers, 2012 CCPIO New Media Survey (2012), http://ccpio.org/wp-content/uploads/2012/08/CCOIO-2012-New-Media-ReportFINAL.pdf. 72% of the general public reports using social media. See Social Networking Use, Pew Research Center (May 2013), http://www.pewresearch.org/data-trend/media-and-technology/social-networking-use/.

2. Id. Only 19% report that they “strongly agree” that “judges can use social media profile sites, such as Facebook, in their personal lives without compromising professional conduct codes of ethics.” That number drops to 8.8% when judges are asked about using social media in their professional lives.

3. N.C. Judicial Standards Comm’n Inquiry No. 08-234.

4. In re Henry P. Allred (Ala. Mar. 2013), available at http://judicial.alabama.gov/judiciary/COJ42PUBLICREP.pdf (Reprimand and Censure of District Judge).

5. California, Ohio, New York, Florida, Connecticut, Oklahoma, Massachusetts, Kentucky, South Carolina, and Maryland have all issued opinions addressing judges’ use of social media. See National Center for State Courts, Social Media and the Courts, http://www.ncsc.org/Topics/Media/Social-Media-and-the-Courts/State-Links.aspx?cat=Judicial%20Ethics%20Advisory%20Opinions%20on%20Social%20Media (last visited May 28, 2013).

6. ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 462, at 1 (2013).

7. Id. See also S.C. Bar, Advisory Op. 17-2009, at 1 (2009) (“[C]omplete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives”); N.Y. State Advisory Comm. on Judicial Ethics, Advisory Op. 08-176, at 1 (2009) (“The Committee cannot discern anything inherently inappropriate about a judge joining and making use of a social network. A judge generally may socialize in person with attorneys who appear in the judge’s court, subject to the Rules Governing Judicial Conduct”); John Schwartz, For Judges on Facebook, Friendship Has Limits, N.Y. Times, Dec. 10, 2009 (quoting Professor Stephen Gillers, “Judges do not ‘drop out of society when they become judges…. The people who were their friends before they went on the bench remained their friends, and many of them were lawyers.’”).

8. ABA Comm. on Ethics & Prof’l Responsibility, supra note 6, at 2.

9. Cal. Judges Ass’n Judicial Ethics Comm., Op. 66 (2010) (judges should “never assume any of the information they are transmitting or receiving is private or accessible to only the intended recipients”); N.Y. State Advisory Comm. on Judicial Ethics, Advisory Op. 08-176, at 1 (2009) (“A judge should … recognize the public nature of anything he/she places on a social network page and tailor any postings accordingly.”)

10. ABA Comm. on Ethics & Prof’l Responsibility, supra note 6, at 2, n.7.

11. Somni Sengupta, F.T.C. Settles Privacy Issue at Facebook, N.Y. Times, Nov. 29, 2011.

12. Who Can See the Friends Section of My Timeline, Facebook, https://www.facebook.com/help/115450405225661 (last visited Feb. 25, 2014).

13. See Cal. Judges Ass’n Judicial Ethics Comm., supra note 9. See also ABA Comm. on Ethics & Prof’l Responsibility, supra note 6 (“Comments, images, or profile information, some of which might prove embarrassing if publicly revealed, may be electronically transmitted without the judge’s knowledge or permission to persons unknown to the judge or to other unintended recipients.”).

14. ABA Comm. on Ethics & Prof’l Responsibility, supra note 6, at 2.

15. Id.

16. Cal. Judges Ass’n Judicial Ethics Comm., supra note 9, at 5.

17. Model Code of Judicial Conduct R. 2.10 (2011) (“A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court…”).

18. Cal. Judges Ass’n Judicial Ethics Comm., supra note 9, at 6.

19. Model Code of Judicial Conduct R. 2.9 (2011) (“A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding….”).

20. See, e.g., Ohio Bd. of Commr’s on Grievances & Discipline, Advisory Op. 2010-7, at 7 (2010) (“it would be prudent to avoid … job related communications on a social networking site.”); N.Y. State Advisory Comm. on Judicial Ethics, Advisory Op. 08-176, at 2 (2009) (“[O]ther users of the social network, upon learning of the judge’s identity, may informally ask the judge questions about or seek to discuss their cases….”).

21. See N.Y. State Advisory Comm. on Judicial Ethics, Advisory Op. 08-176, at 1 (2009) (warning judges not to engage on social media with users who wish to discuss their case).

22. Model Code of Judicial Conduct R. 2.9(C) (2011) (“A judge shall not investigate facts in a matter independently, and shall consider only the evidence presented…”); Ohio Bd. of Commr’s on Grievances & Discipline, supra note 20, at 7 (“The ease of finding information on a social networking site should not lure the judge into investigative activities in cases before the judge.”).

23. Ohio Bd. of Commr’s on Grievances & Discipline, supra note 20, at 8-9.

24. Model Code of Judicial Conduct R. 3.1(A) & (C) (2011).

25. Model Code of Judicial Conduct R. 3.1, cmt. 3 (2011).

26. Ohio Bd. of Commr’s on Grievances & Discipline, supra note 20, at 1.

27. Cal. Judges Ass’n Judicial Ethics Comm., supra note 9, at 5. See also N.Y. State Advisory Comm. on Judicial Ethics, supra note 20, at 2 (“The Committee urges all judges using social networks to, as a baseline, employ an appropriate level of prudence, discretion and decorum in how they make use of this technology….”); Ethics Comm. of the Ky. Judiciary, Formal Op. JE-119, at 4 (2010) (“Thus, pictures and commentary posted on sites which might be of questionable taste, but otherwise acceptable for members of the general public, may be inappropriate for judges.”).

28. ABA Comm. on Ethics & Prof’l Responsibility, supra note 6, at 2.

29. Cal. Judges Ass’n Judicial Ethics Comm., supra note 9, at 5.

30. Model Code of Judicial Conduct R. 1.3 (2011).

31. Model Code of Judicial Conduct R. 4.1(A) (2011).

32. Cal. Judges Ass’n Judicial Ethics Comm., supra note 9, at 6 (a judge “must be careful not to post any material that could be construed as advancing the interests of the judge or others”). See also Ohio Bd. of Commr’s on Grievances & Discipline, supra note 20, at 7 (counseling judges to avoid “frequent and specific social networking communications with advocacy groups interested in matters before the court”).

33. Model Code of Judicial Conduct R. 1.2 (2011).

34. Model Code of Judicial Conduct R. 2.4(C) (2011).

35. Fla. S. Ct. Judicial Ethics Advisory Comm., Advisory Op. 2009-20 (2009), available at http://www.jud6.org/LegalCommunity/LegalPractice/opinions/jeacopinions/2009/2009-20.html. Okla. Judicial Ethics Advisory Panel, Op. 2011-3 (2011), available at http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=464147 (endorsing Florida Opinion’s view); Mass. Comm. on Judicial Ethics, Advisory Op. 2011-6 (2011), available at http://www.mass.gov/courts/sjc/cje/2011-6n.html (“The Committee is of the opinion that the Code prohibits judges from associating in any way on social networking sites with attorneys who may appear before them.”); Conn. Comm. on Judicial Ethics, Informal Op. 2013-6 (2013), available at http://www.jud.ct.gov/Committees/ethics/sum/2013-06.htm (“A Judicial Official should not become a social networking ‘friend’ of law enforcement officials, social workers or any other persons who regularly appear in court in an adversarial role…”).

36. Fla. S. Ct. Judicial Ethics Advisory Comm., supra note 35.

37. Fla. S. Ct. Judicial Ethics Advisory Comm., Advisory Op. 2010-6 (2010), available at http://www.jud6.org/LegalCommunity/LegalPractice/opinions/jeacopinions/2010/2010-06.html.

38. Ohio Bd. of Commr’s on Grievances & Discipline, supra note 20, at 1 (“A judge may be a ‘friend’ on a social networking site with a lawyer who appears as counsel in a case before the judge.”). The South Carolina opinion does not address friendships with lawyers but says that judges can be friends with law enforcement officials as long as they do not discuss anything related to the judge’s position. See S.C. Advisory Comm. on Standards of Judicial Conduct, Advisory Op. 17-2009 (2009), available at http://www.judicial.state.sc.us/advisoryOpinions/displayadvopin.cfm?advOpinNo=17-2009.

39. Ethics Comm. of the Ky. Judiciary, supra note 27, at 2 (Social media connection “by itself, does not reasonably convey to others an impression that such person are in a special position to influence the judge.”).

40. N.Y. State Advisory Comm. on Judicial Ethics, supra note 20, at 2.

41. See Cal. Judges Ass’n Judicial Ethics Comm., supra note 9.

42. ABA Comm. on Ethics & Prof’l Responsibility, supra note 6, at 2.

43. Model Code of Judicial Conduct R. 2.11, cmt. 5 (2011).

44. See e.g., N.Y. State Advisory Comm. on Judicial Ethics, supra note 20. (“A judge must … consider whether any such social online connections, alone or in combination with other facts, rise to the level of a ‘close social relationship’ requiring disclosure and/or recusal.”)

45. ABA Comm. on Ethics & Prof’l Responsibility, supra note 6, at 3.

46. Id.

47. Ohio Bd. of Commr’s on Grievances & Discipline, supra note 20, at 2. See also Ethics Comm. of the Ky. Judiciary, supra note 27, at 2 (“These relationships may range from mere familiarity, to acquaintance, to close, intimate friendship, to marriage…. The Committee conceives such terms as “friend,” “fan” and “follower” to be terms of art used by the site, not the ordinary sense of those words.”).

48. Cal. Judges Ass’n Judicial Ethics Comm., supra note 9, at 11.

49. Model Code of Judicial Conduct R. 2.11, cmt. 5 (2011).

50. Justice Louis D. Brandeis, Brandeis University, http://www.brandeis.edu/legacyfund/bio.html (last visited Feb. 25, 2014).

51. Dahlia Lithwick & Graham Vyse, Tweet Justice, SLATE (Apr. 30, 2010), http://www.slate.com/articles/news_and_politics/jurisprudence/2010/04/tweet_justice.html.

52. See United States v. Murphy, 768 F.2d 1518, 1538 (7th Cir. 1985) (noting that “social relations take so many forms it would be imprudent to gauge all by a single test”).

53. N.Y. State Advisory Comm. on Judicial Ethics, Advisory Op. 13-39 (2013). See also Ky. Formal Judicial Ethics Opinion JE-119, at 2 (“Not everyone of these relationships necessitates a judge’s recusal from a case.”); Maryland Judicial Ethics Committee Op. 2012-07, at 5 (“The mere existence of a friendship between a judge and an attorney does not, in and of itself, disqualify the judge from cases involving that attorney… The Committee sees no reason to view or treat ‘Facebook friends’ differently.”)

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