Judges are on social media, making their online profiles prime targets for lawyers looking to know more about the triers of fact. Lawyers must be careful, though, not to step across the line to unethical conduct when using social media to investigate those who hold so much power in the courtroom.
Last week’s post discussed how to avoid ethical issues when investigating parties and witnesses. Some of the same considerations apply when investigating judges, with some additional wrinkles.
Most judges will simply stay off of social media, but judges are human too and are active members of their communities. For those who don’t opt out of social media, their pages could offer lots of insight into how to deal with them effectively.
Judges With Public Profiles
As discussed in last week’s article, whether you must be connected to someone on social media or not to view their content is determined by a person’s privacy settings. If a judge puts an entirely public profile on social media, it would seem there is no ethical rule precluding a lawyer from reading the public profile and utilizing information learned from it so long as the use of the information is in accordance with the ethical rules (i.e., you can’t communicate ex parte with the judge about the subject of your case just because they posted on Facebook about a topic of mutual interest).
Connecting To Judges With Private Profiles
If a judge’s profile is not public, however, then a lawyer would have to be connected to the judge online in order to view their profile; this is where it gets complicated.
Judges have their own code of ethics beyond those applicable to all lawyers, the Model Code of Judicial Conduct (“MCJC”) (and its state-specific variations). So social media issues involving judges go beyond the rules applicable to lawyers and involve another set of rules. The MCJC does not address social media, but some states have started to make rules directly impacting the interaction between judges and lawyers in social media.
- Florida has specifically barred judges and lawyers from being connected on LinkedIn and Facebook. Florida Supreme Court Judicial Ethics Advisory Comm., Op. 2012-12 (2012) and Florida Supreme Court Judicial Ethics Advisory Comm., Op. 2009-20 (2009).
- Massachusetts and Oklahoma have similar rules.
- California has said that judges may participate in social networks and connect to lawyers under limited circumstances, but such online connections will need to be disclosed if the attorney appears before the judge and the judge will need to unfriend the lawyer if he has a case pending before the judge.
- Kentucky, Maryland, Ohio and South Carolina allow judges to be on social media with certain qualifications.
- New York seems to be most deferential to judges, saying that they may be on social media so long as the judge “otherwise complies with the Rules Governing Judicial Conduct” and exercises “an appropriate degree of discretion” in using the network and stays abreast of how the features of the social network may change and impact the judge’s duties.
Absent a specific rule, interactions with judges are always governed by the standard of “appearance of impropriety” – that nebulous standard that reminds me of Justice Stewart’s pornography quote (“I know it when I see it”). The ABA recently issued Formal Opinion 462 which states that judges may participate in social media, but leaves it to further interpretation how judges may do so without giving the appearance of impropriety.
Given the ABA’s go-ahead, it is reality that judges will be out there on social media networks. As lawyers, we must govern our conduct so as not to violate the ethical rules and not to give an appearance of impropriety. Not friending on Facebook or connecting on LinkedIn with judges seems simple enough, but what if a friend or colleague becomes a judge after you have connected? Or if you have connected in the past and now it becomes a priority to disconnect? Professor Kelly Lynn Anders of Savannah Law School recently addressed the ethics of unfriending in her article Ethical Exits: When Lawyers and Judges Must Sever Ties on Social Media, 7 Charleston Law Review 187. Professor Anders explains that there is no guidance on how to actually do this, but both ethical considerations and general best practices dictate that lawyers and judges communicate with each other prior to unfriending each other – a time-consuming task that realistically seems unlikely to actually happen.
Given the “appearance of impropriety” standard, the general lack of guidance in the rules, and the tough stance states like Florida are taking, be prudent. If you think someone viewing your interaction with a member of the bench in social media would find it improper, you should probably avoid it. Another way to think of it is whether you would be comfortable if your opposing counsel had the same connection to the judge online. If you would not be happy about it, you should not have it either.