May 01, 2013

Judicial Use of Social Media: New Guidance

Anne Marie Lancour

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Social media, such as Facebook, is used by many people in many ways. What does this mean for Judges who practice in child welfare? Formal Opinion 462, issued February 21, 2013 by the American Bar Association, sheds some light on this topic.

Formal Opinion 462 made several interesting findings in answering the following question: Can a judge use electronic social networking media (ESM)? The committee ruled that a judge can use ESM but the judge must comply with the Code of Judicial Conduct and avoid conduct that would undermine judicial independence, integrity, or impartiality or create an appearance of impropriety.

The opinion identifies potential positive outcomes for a judge who properly uses ESM including helping a judge not be viewed as “isolated or out of touch.” The opinion cites the ABA Model Code of Judicial Conduct and encourages judges to follow their own jurisdiction’s rules. The opinion offers other considerations for judges in deciding how or if to use ESM. These include:

  • Comments posted on an electronic site will not stay within the judge’s electronic contacts. A judge needs to use care in posting on sites and realize that any comments could be used out of context or not for the original purpose of the comment.
  • Comments may be misconstrued or used to embarrass a judge if comments are not carefully crafted. This could lead to a situation where a judge may appear to be compromised or subject to compromise.

  • Unlike face-to-face contact, electronic content can be disseminated to thousands of people without the knowledge, consent, or permission of the poster. Thus, these messages can be misconstrued or taken out of context.

  • In making electronic connections, a judge must be mindful that others may view those connections as allowing another person to have an undue influence on a judge and may provide an appearance of impropriety.

  • In making electronic connections, a judge should also be careful not to engage in ex parte communication.

  • The opinion listed several states’ rules and interpretations on the issue listed above and whether a judge can “friend” an attorney on an electronic site. Some states that have rules or opinions on this topic include: NY, FL, CA, KY, KS, and NV.

  • Due to the open nature of ESM, judges will mostly likely not need to disclose ESM.

When considering whether or not to use social media, a judge should think of the activity in terms of the rules of professional conduct that may govern his or her behavior. The ABA Model Code of Judicial Conduct[i] is a good place to start along with individual states’ Codes of Judicial Conduct. Much like the ABA Model Rules of Professional Responsibility, the ABA Model Code of Judicial Conduct is broken into three areas: Canons, Rules and Comments. Canons 1 and 2 provide some guidance on the issue of judges using ESM.

Canon 1 discusses the importance of an independent and impartial judiciary that avoids impropriety and the appearance of impropriety. Rule 1.2 identifies the importance of promoting confidence in the independency, integrity, and impartiality of the judiciary.

Comment 1 to the rule states that public confidence applies to professional and personal conduct of a judge. Comment 2 provides that a judge can be subject to “public scrutiny that might be viewed as burdensome if applied to other citizens…”

Canon 2 emphasizes the importance of a judge being impartial, competent, and diligent.

Rule 2.2 states that a judge must uphold and apply the law fairly and impartially and Rule 2.4 and its comments discuss external influences on judicial conduct including public opinion, family, social, political, and financial interest.

Some areas where this opinion may apply to judges in child welfare include:

  • A judge is asked to join a community Facebook group (church, school, club). If a member of one of those groups should come before the judge, the judge should think about a potential reaction or outcome before joining community groups.
  • Some members of the group a judge may join may travel in judges’ professional circles and thus any personal affiliations may become known in the judge’s professional life as well.

  • Many younger judges are technologically savvy and comfortable with social media. However, a new judge may worry that maintaining a social media presence will “take away” from her new duties and objectivity and older judges may not approve.

  • Judges need to be aware that “liking” photos, comments or statuses could be viewed as being partial to a person or cause and this may lead to an appearance of impropriety.

Conclusion. It seems clear that a judge may participate in social media, but as with all social contacts the judge must follow the relevant Code of Judicial Conduct and the contact may not undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.

Anne Marie Lancour, MAT, JD, is director of state projects at the ABA Center on Children and the Law, Washington, DC.

[i] ABA Model Code of Judicial Conduct (2011)