Social media and judicial ethics

I am not now, nor have I ever been a fan of social media. When I receive a LinkedIn email, it’s usually deleted. “Connections” do get congratulated on anniversaries or new positions; my profile gets updated with changes; and I look at the profiles of unknown persons wanting to “connect.” I am not associated with any other social media accounts. Being technologically challenged, I am unfamiliar with Facebook settings, but it seems some people don’t learn who their true (or more likely untrue) “friends” are until it’s too late.

A presence on social media poses potential disciplinary hazards for attorneys and perhaps more so for attorneys who are judges.

While few states have judicial codes of conduct provisions regarding use of social media, more than a dozen states have issued advisory opinions on such use. Many of those opinions caution the use of social media by judges, referring to the appearance created by a social network connection and distinguishing between attorney “friends” who are likely to appear and those not likely to appear before the judge. One advisory opinion bluntly observed that the use of social media by a judge is “fraught with peril”.

A similar number of states have publicly or privately disciplined judges for misuse of social media, including comments on pending matters, ex parte communications, criticism of attorneys or other judges, fund raising activities, endorsement of candidates for public office, inappropriate or sexually explicit messages and offensive comments about political opponents.

At least 13 states have imposed discipline or issued advisory opinions regarding judicial campaigns and social media. In Illinois candidates for judicial office are subject to the Code of Judicial Conduct.

While some factual situations are clearly problems (exchanging sexually explicit messages from chambers, during office hours, with someone the judge met in an official capacity), less blatant misconduct, as well as differing views from the several states, are worth a closer look.

A Florida judge (Inquiry Concerning Krause, 166 So. 3d 176 Florida, 2015) was suspended 30 days without pay for using social media to ask friends to help the judge’s spouse (a judicial candidate) correct perceived misstatements of the spouse’s opponent.

The Georgia Judicial Qualifications Commission (In re Bass, March 13, 2013) reprimanded and suspended for 60 days without pay, a judge who had a private Facebook chat with an individual who contacted the judge about a relative with a criminal charge and gave advice on how to get the case before the judge and failed to recuse.

A Texas judge (In re Slaughter, Texas Special Court of Review, September 30, 2015) was held not to have violated the Code of Judicial Conduct for Facebook comments on pending cases.

California Judges Association Advisory Opinion 66 (2010) indicates that a judge may be socially networked with attorneys who might appear before the judge, but not with ones that have pending cases before the judge.

Florida Supreme Court Ethics Advisory Opinions 2009-20 and 2012-12 hold that a judge may not be “friends” on a social networking site with attorneys who may appear before the judge and may not allow such attorneys to add the judge as a “friend.”

Kentucky Judicial Ethics Opinion JE 119 (2010) however, states that a judge may be social networking “friends” with attorneys, social workers or law enforcement officials that may appear before the judge.

Massachusetts Committee on Judicial Ethics Opinions 2016-1, 2016-8 and 2016-9 indicate that a judge may not “friend” or be “LinkedIn” with any attorney likely to appear before the judge and may not use Twitter other than for educational or informational purposes.

The Illinois Judicial Inquiry Board has no reported complaints or orders that have specifically dealt with social media and judicial ethics. In addition, the Illinois Judges Association has no published ethics opinions regarding social media.

Links to all of the opinions or cases mentioned, as well as many others, can be found at the National Center for State Courts - Center for Judicial Ethics website: www.ncsc.org/cje - Social Media and Judicial Ethics.

Attorneys and attorneys serving as judges are well advised to be alert for current rulings, advisory opinions or cases involving the slippery slope of social media. 