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ABA: Judges should practice safe social media

By: DOLAN MEDIA NEWSWIRES//March 13, 2013//

ABA: Judges should practice safe social media

By: DOLAN MEDIA NEWSWIRES//March 13, 2013//

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By Gary Gosselin
Dolan Media Newswires 

The American Bar Association has come out with Electronic Social Media guidelines for judges, and the one thing that is clear is that the rules aren’t really all that clear.

It’s more like guidelines than rules, if you really get down to it.

The ABA’s “Judge’s Use of Electronic Social Networking Media,” Formal Op. 462, says judges should “comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.”

That didn’t work for a Georgia judge who was Facebooking with a defendant, or a New York judge who was updating his Facebook page from the bench — posting a photo of a courtroom full of people — in real time.

Obviously, these instances stick out because they are so few and far between.

But social media sites are rife with pitfalls for normal folks, let alone judges who “should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens… .”

What more can you say, really? Be extra careful?

The story pretty much reiterates what the ABA said in its opinion: you are held to a higher standard so watch your … Ps and Qs.

There are a plenty of hazards in almost any outlet, be it Facebook, Twitter or LinkedIn. Friending someone or liking someone or something on Facebook can get you accused of favoritism; tweeting the wrong comment on Twitter can be wrong in so many ways; and associating with someone — regardless how arm’s-distance that could be — on LinkedIn also may bring calls of favoritism.

Tthe Florida Supreme Court Judicial Ethics Advisory Committee stated that a judge may not be friends with an attorney who may appear in his or her court. They said it requires an action, and that the “friendship” may give the attorney influence.

Various pronouncements in Kentucky, Ohio and California said the mere “friending” of someone didn’t elevate the attorney to “most favored” status, but rather the entirety of the relationship had to be examined.

See the problem here? Although the broad concept of entirety applies in all three states, they each interpret what that is differently, I’d bet.

“Speaking personally, I think it’s not a good idea for judges to use social media. There is too much that can leach out, even inadvertently,” warned U.S. District Court Chief Judge Gerald Rosen of Michigan’s Eastern District, who said he has no social media accounts and tries to discourage other judges.

Even simple information like an upcoming vacation could change the dynamics of a case if an attorney were to try to work around that. Too much personal information can become available, and once information is out on the Internet, you really lose any control over it, he said.

It’s impractical to think all judges — especially those coming up now who have never had a life without computers — will stay away from social networking. It is just a part of the fabric of society today.

Even the ABA admits: “Social interactions of all kinds, including [electronic social media], can be beneficial to judges to prevent them from being thought of as isolated or out of touch.”

As a rule, we should all be vigilant, and some folks need to remember that things they post can last a lifetime — literally. So hyper-vigilance is probably key for judges, because I don’t know of one who, after they become a judge, can claim, “I was just a teenager.”

The Michigan Judicial Institute addressed the issue when it hosted a day at the Hall of Justice for recently elected judges.

There was no formal presentation about social media, Director Dawn McCarthy told me, but attendees had questions, and the institute did its best to answer them.

They were given copies of the State Bar article, and she had copies of the Florida, Ohio and Kentucky social media opinions if attendees were interested.

McCarthy said she had heard of instances where new judges were nervous, and either removed their Facebook page or made it private only for closest friends and family.

Judges should expect a formal presentation at the next MSC judicial conference in 2014, McCarthy said. So, if you are a Michigan judge, plan to join as many as 569 of your colleagues next year.

Although the ABA opinion is a bit vague, it does give sufficient guidelines for someone who has been through seven years of school to figure out.

There will always be those who really know better but choose to be ignorant, and they make interesting stories and examples to learn from for the rest of us.

As you go forth and socialize, remember, it’s probably better to err on the side of caution while adapting to a new and/or unfamiliar routine — “like” it or not.

Gary Gosselin is the editor at Michigan Lawyers Weekly, a sister publication of the Wisconsin Law Journal.

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