Judges must follow the ethics rules governing social relationships and contacts when engaged in electronic social networking, an American Bar Association committee has made clear in a new ethics opinion.
“A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must 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,” stated an ethics opinion issued in February by the ABA Standing Committee on Ethics and Professional Responsibility.
The committee addressed a judge’s use of “electronic social media,” defined as Internet-based electronic social networking sites that “require an individual to affirmatively join and accept or reject connection with particular persons.”
In discussing the application of the Model Code of Judicial Conduct, the committee said that “while sharing comments, photographs, and other information, a judge must keep in mind the requirements of Rule 1.2 that call upon the judge to act in a manner that promotes public confidence in the judiciary.”
The committee said that a “judge should not form relationships with persons or organizations that may violate Rule 2.4(C) by conveying an impression that these persons or organizations are in a position to influence the judge.”
In addition, the committee cautioned that particular care should be taken that interactions with social media don’t violate rules prohibiting a judge from offering legal advice and commenting on a pending matter before the court.
“A judge must also take care to avoid comments and interactions that may be interpreted as ex parte communications concerning pending or impending matters in violation of Rule 2.9(A), and avoid using any ESM site to obtain information regarding a matter before the judge in violation of Rule 2.9(C),” the committee said.
The committee also addressed the issues of disclosure and disqualification that arise when a judge uses social media sites used by lawyers and others who may appear before the judge.
As a starting point, the committee said that 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.”
Emphasizing the importance of the context of the interaction, the committee said that a judge “should disclose on the record information the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification even if the judge believes there is no basis for the disqualification.”
The committee also discussed the use of electronic social media in judicial campaigns “Websites and ESM promoting the candidacy of a judge or judicial candidate may be established and maintained by campaign committees to obtain public statements of support for the judge’s campaign so long as these sites are not started or maintained by the judge or judicial candidate personally,” the committee said.
In addition, the committee warned of the danger of a rules violation when a judge interacts with the web content of other judicial candidates.
“Some ESM sites allow users to indicate approval by applying ‘like’ labels to shared messages, photos, and other content,” the committee said. “Judges should be aware that clicking such buttons on others’ political campaign ESM sites could be perceived as a violation of judicial ethics rules that prohibit judges from publicly endorsing or opposing another candidate for any public office.”