Supreme Court Justice Antonin Scalia once said:
I don’t know why anyone would like to be “friended” on the network. I mean, what kind of a narcissistic society is it that people want to put out there,This is my life, and this is what I did yesterday? I mean … good grief.
While Justice Scalia questions the use of social media, a 2012 national survey of judges by the Conference of Court Public Information Officers (CCPIO) found that judicial use of social media is on the rise, with more than 46% of judges saying they use social media. More than 86% of those judges have a Facebook profile.
Ethical questions remain for judges using social media. Most jurisdictions have yet to reach agreement on the treatment of social-media connections with judges. In fact, the issue of whether judges can even participate in online social networking is still hotly contested among state bar associations. Of judges and court officers who responded to CCPIO’s 2014 survey, less than half of respondents thought Facebook use by judges does not compromise professional codes of ethics, 5% fewer than in 2013.
How Baseball Threw Judicial Ethics a Curveball
In the 1920s, Federal Judge Kenesaw Mountain Landis took a second job as a Major League Baseball commissioner. In response, the ABA adopted a resolution condemning the employment and censoring Judge Landis. Because there were no explicit rules at the time, the ABA created the first Canons of Judicial Ethics (pdf) in 1924. Among other rules, the Canons told judges to refrain from professional or personal conduct that would call into question the integrity of the judiciary.
Although the ABA could not have comprehended the intricacies of social media when it created the 1924 Canons of Judicial Ethics, the Canons have since been modified and re-interpreted as issues arise.
A prime example is Formal Opinion 462, in which the ABA Standing Committee on Ethics and Professional Responsibility concluded that a judge may use social media so long as that use complies with the Code of Judicial Conduct. Although judges are held to a higher standard than the “average member of the public,” the ABA encouraged judges to use social media to mitigate against the presumption that they are “out of touch” with broader society.
Pointing to specific judicial ethics rules, the ABA provided a roadmap for applying longstanding tenets of judicial ethics to new social media. For example, Model Code of Judicial Conduct Rule 2.9 prohibits ex parte communications about pending or impending matters except as otherwise authorized by law. Rule 1.2 says a judge must also:
act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
Not only must judges be mindful of their actions, but also the appearance of those actions. Under Rule 2.4(c), “[a] judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.” Rule 2.11 says a judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned,” including where the judge “has a personal bias or prejudice concerning … a party’s lawyer.”
Building on these rules, the recent ABA opinion on social media cautions judges not to “form relationships” or engage in communications online that might convey such an impression or create the “appearance of impropriety.” Several states have since followed suit, including Connecticut, Kentucky, Maryland, New York, Ohio, South Carolina, and Tennessee.
Continuing this trend, New York compares social media “friendships” to the more public equivalent of adding a person’s “contact information into the judge’s Rolodex.” The only difference is the public nature of said connections. Social media connections are considered by many to create an appearance of increased access, influence, or even impropriety — exposing judges to potential violation of their judicial duties.
Why Can’t We Be Friends?
|State||Can a Judge Connect with Attorneys Who May Appear in Court?||Can a Judge Connect with Attorneys in Pending Cases?||Point of Reference|
|Alabama||Maybe||Maybe||Case No. 42|
|Arizona||Maybe||Maybe||Advisory Opinion 14-01|
|Connecticut||No||No||Informal Opinion 2013-06|
|Florida||No||No||Opinion Number: 2009-20|
|Massachusetts||No||No||Opinion No. 2011-6|
|Michigan||Maybe||Maybe||Michigan Bar Journal|
|New York||Yes||Maybe||Opinion 13-39|
|North Carolina||Maybe||Likely No||Inquiry No. 08-234|
|Oklahoma||No||No||Judicial Ethics Opinion 2011-3.|
|South Carolina||Yes||Maybe||Opinion 17-2009|
|Tennessee||Yes||Maybe||Advisory Opinion No. 12-01|
|Texas||Yes||Maybe||CJC No. 14-0820-DI|
|Utah||Yes||Maybe||Informal Opinion 12-01|
Although state bar associations collectively frown upon judicial ex parte communications through social media sites, punishment varies substantially from one state to the next, ranging from private words of caution to suspension or a permanent bar from the bench.
Ethical complications stemming from ex parte communications over social media are nothing new. As early as 2009, the North Carolina Judicial Standards Commission publicly reprimanded a judge for engaging in ex parte communications on Facebook with counsel for a party in a matter before him. Alabama County Judge Henry P. Allred was reprimanded and censured in 2013 for making public comments on his Facebook page and in an email sent to all state court judges about a pending contempt proceedings against a specific lawyer which requested that his connections spread the posting far and wide. In 2013, the Georgia Judicial Qualifications Commission suspended a judge for sixty days without pay and reprimanded him for failing to recuse himself after engaging in a private Facebook chat advising a woman about a DUI matter. Meanwhile, the New Mexico Judicial Standards Commission similarly cautioned a judge who merely commented about a case over which the judge was presiding on social media.
Some judges have yet to learn their lesson. In May of this year, Florida Judge Linda Schoonover chose to resign from the bench in light of a series of misconduct allegations, including a claim she retaliated against a party in a divorce case who had refused a Facebook friend request sent by the judge during the course of the trial. Even fairly minor connections may constitute grounds for recusal in some states. In Texas, a judge was recused from presiding over a lawsuit against a prominent political strategist who the judge followed on Twitter.
Social media use for the sake of good intentions and transparency can also result in a reprimand. Judge Michelle Slaughter’s attempted to fulfill a campaign pledge to promote transparency and to connect with public she serves by sharing the daily goings-on in her courtroom. Despite the well-intentioned nature of her posts, Judge Slaughter was recused for mistrial and publically admonished by the Commission on Judicial Conduct. The Commission concluded Judge Slaughter cast reasonable doubt upon her own impartiality and violated her own advice to jurors by failing to practice what she preached. Judge Slaughter’s trial was held in July and a ruling is expected by late September.
What Happens Off the Bench Stays Off the Bench
Judges may also be disciplined for their poor judgement on social media even when it does not directly impact their duties. In January of this year, the Indiana Supreme Court permanently banned a sitting judge from the bench based in part on an “indecorous” statement she made on social media. The Arkansas Supreme Court removed another judge from office based in part on inappropriate statements about official duties, pending cases, and independent investigations, as well as making inappropriate gender, race, and sexually-charged comments on social media. As early as 2007, one judge lost his position for making inappropriate comments on his MySpace page.
Judges Are Not the Only Ones With Obligations
By this point, you may be breathing a sigh of relief that you are not judge. Unfortunately, you would be jumping the gun (or the gavel). Although few states have actually ruled on this, interacting with judges on social can expose you to ethical risks, too.
Last year, the North Carolina State Bar Association joined the many jurisdictions grappling with judicial Facebook friending. Formal Ethics Opinion 8 emphasizes three key duties you have when appearing before judges in court:
- To avoid conduct prejudicial to the administration of justice.
- To not state or imply an ability to influence improperly a government agency or official.
- To avoid ex parte communications with a judge regarding a legal matter or issue the judge is considering.
The Ethics Committee explained that these duties may require you to disconnect from judges on social networking sites. The committee made an analogy between social media interactions and accepting a judge’s dinner invitation. The New York Bar similarly allows you to communicate with judges over social media, but more explicitly restricts any attempt to use social media connections to influence a judge.
As a practical matter, you may want to refrain from friending judges to avoid the possibility of a request for recusal. Nevertheless, connecting with judges over social media holds a breadth of educational opportunity and insight into the minds of the judiciary. In doing so, you just need to weigh the risks that are also involved.
Justice Scalia may have put it best: “good grief.”
Featured image: “Wooden judges gavel and leather folder on black table high resolution” from Shutterstock.