The opinion is based upon the Ethics Committee’s analysis of Facebook, after having been asked to provide an opinion as to whether judges may use social media. On Facebook, users can request to “friend” other users; typically, once a friend request is accepted, both users can see the material that the other user posts on the site.
The opinion flags a number of judicial canons and rules that require evaluation as a judge considers the use of social media. Specifically, the opinion cites confidence in the judiciary (Canon 1), appropriate use of the judicial office (Rule 1.3), the prohibition on relationships or other interest from influencing judicial conduct (Rule 2.4 (b)), the appearance of improper influence (Rule 2.4(c)), ex parte communications (Rule 2.9(a)), disqualification due to conflict or the appearance of conflict (Rule 2.11), and existing guidance on social activities (Rule 3.1) as areas that are potentially implicated.
The opinion summarizes other states’ judicial ethics committees’ positions and the standards those committees have applied for judges to consider when participating on social media. Several states, such as Oklahoma and Florida, condition whether a judge can “friend” an attorney upon whether the attorney will be (or is likely to be) appearing before them. Massachusetts permits judges to “friend” attorneys but only if they would recuse themselves were those attorneys to appear before them. Other states, such as Maryland, simply advise judges to proceed cautiously without laying down bright-line rules.
Tennessee follows the broad approach and stops short of adopting any specific standard for its judges. “The opinion provides an excellent survey of what other jurisdictions have done with respect to this issue,” states Courtney E. Ward-Reichard, Minneapolis, chair of the Social Media Subcommittee of the Section of Litigation’s Technology for the Litigator Committee. She believes the opinion could have gone further, however: “Essentially, the conclusion is to use caution, which judges should already exercise in all dealings with individuals who could appear before them, whether through social media or other avenues.” Without more specific guidance, judges might decide “to avoid social media entirely given the lack of clarity.”
Considerations for Judges
Although Facebook friends may not be true friends in the traditional sense of the word, if a judge’s Facebook friend is appearing before her, “it’s going to give every attorney appearing before her an argument for her recusal,” warns Sharon D. Sirott, Chicago, chair of the Judiciary Subcommittee of the Section’s Ethics and Professionalism Committee. “While there may not be any actual merit to a claim of influence, bias, or the like, simply the appearance of it by having that social media relationship will cause that to be examined.”
Likewise, judges must be cautious with regard to ex parte communications in social media. Although few judges or lawyers would knowingly correspond with one another regarding a pending matter on Facebook (although it has happened), once a person is a Facebook friend, you typically see what they post whether it is directed at you personally or not. Accordingly, it is possible that a lawyer may post about something—such as facts that have not been introduced as evidence—and, although “you have not invited that communication, you are definitely a passive recipient of that communication,” explains Sirott. It could be something as subtle and unintentional as someone from the same firm blogging about a related issue, which the judge then sees via social media, she adds.
Thoughtful consideration before posting is key. “Two things about the Internet that are potential problems are (1) the information you post there generally lasts forever, and (2) information on the Internet often goes to people you don’t intend for it to go to,” offers Downey. If a judge is considering posting on Facebook, he or she should approach that post with the same attention as he or she would give to a prepared statement or a speech at the bar association, suggests Sirott.
Considerations for Lawyers
As for lawyers accepting “friend requests” from judges, “approach it with more than a degree of caution,” suggests Sirott. “Understand that this judge will be the recipient of all of your posts and as the rules may evolve in the future, or, depending on the jurisdiction you’re in, you may be precluded from appearing in front of this judge.” Downey agrees that caution is warranted. “Think through the process,” cautions Downey. “Lawyers are not supposed to engage in conduct that causes a judge to violate the judicial canons. So if it’s a situation where you think it’s inappropriate, frankly, you should deny it.” Downey urges lawyers to keep these considerations in mind, as current Facebook friends who are not judges may become judges down the road.
Bethany Leigh Rabe is an associate editor for Litigation News.