Social Networks and the Judiciary

Article excerpt

If a judge decides the benefits of using online social media outweigh the risks, the "connected" judge must take whatever steps are necessary to prevent online socializing from undermining the integrity and impartiality of the judicial office.

Like apparently almost everyone else, many judges want to join online social network to stay in touch with family members, reconnect with childhood friends, classmates, and former colleagues, and form new relationships with people they meet on or off the job. According to the Conference of Court Public Information Officers, of the 284 state court judges who responded to its 2012 survey, 46.1 percent use social media sites.

As social media becomes even more commonplace and younger judges take the bench, the percentage will no doubt increase as will judges' confidence that they can use social media without crossing ethical boundaries. Many currently still have reservations. In the 2012 survey, asked to react to the statement, "Judicial officers can use social media profile sites, such as Facebook, in their personal lives without compromising professional conduct codes of ethics," 44.3 percent of the judges agreed or strongly agreed, up from 41.4 percent in 2010. Asked to respond to the statement, "Judicial officers can use social media profile sites, such as Facebook, in their professional lives without compromising professional conduct codes of ethics," 27.5 percent agreed or strongly agreed, up from 24 percent in 2010.

So far, only three judges have been formally, publicly disciplined for engaging in misconduct on Facebook, although there have been a number of newspaper reports of other questionable judicial social media use. Of course, before and without Facebook, judges have engaged in misconduct similar to that in those cases (ex parte communications, providing legal advice, and making comments on public cases). But the ease of communication on social media and the evident lowering of inhibitions while online portend an increase in careless talk by some judges. On the other hand, because judges are accustomed to being mindful both on and off the bench about possible ethical pitfalls, they may be prepared to avoid the haphazard use of social media that has led to scandal for public officials and notoriety for private individuals.

All of the judicial ethics committees that have issued opinions on the subject have advised that judges' use of social media is not inherently and inevitably inconsistent with ethical standards, but all have also warned judges to proceed cautiously while socializing on the Internet. (The American Bar Association Standing Committee on Ethics and Professional Responsibility has also weighed in on the issue in a recent opinion on judicial ethics. See Briefs in this issue at page 245.) Some warnings from ethics committees are good advice for all social media users: for example, remember that online communications are much more public and permanent than offline conversations and be familiar with social networking site privacy controls. Other warnings emphasize the unique role of judges that requires them to accept restrictions on their conduct that nonjudges would consider burdensome even as they take advantage of the latest technology to engage in the very human desire to connect and communicate.

The current focus in the discussion of judges and online social media is whether judges may "friend" attorneys on social networks who appear before them in court. Judicial ethics advisory committees are split on the issue.

Those committees that disapprove the practice draw a bright line that emphasizes the appearance of influence and impartiality that may be created if judges are connected online with some of the attorneys who appear before them but not with others. Although not mentioned in these opinions, another consideration is the impact on the appearance of fairness if a judge is "friends" with an attorney on Facebook, for example, but ignores the "friend" request of the attorney's self-represented opponent in a case, a very likely scenario in light of the number of pro se litigants in the courts. …