Judges need not be banned from sites like Facebook, but they also can’t friend, tweet, and post like the rest of us. According to a recent formal opinion by the American Bar Association’s Standing Committee on Ethics and Professional Responsibility, judges need to exercise caution when participating in electronic social media (ESM).
As articulated by the committee, “Social interactions of all kinds, including ESM, can be beneficial to judges to prevent them from being thought of as isolated or out of touch.” The ABA’s social media opinion further acknowledged that social media shares many of the same risks embodied by other forms of communication. “When used with proper care, judges’ use of ESM does not necessarily compromise their duties under the Model Code any more than use of traditional and less public forms of social connection such as U.S. Mail, telephone, email or texting.”
The Model Code requires judges to “maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives.” Thus, the committee makes it clear that members of the judiciary also have unique social media concerns, including:
- While sharing comments, photographs, and other information, judges must mindful of their duty to act in a manner that promotes public confidence in the judiciary.
- Judges should avoid social media relationships with persons or organizations that may convey an impression that these persons or organizations are in a position to influence the judge.
- Judges must take care to avoid comments and interactions that may be interpreted as ex parte communications concerning pending or impending matters, and avoid using any ESM site to obtain information regarding a matter before the judge.
- Judges that have existing social media relationships with a lawyer or party who has a pending or impending matter before the court must evaluate that connection to determine whether the judge should disclose the relationship prior to, or at the initial appearance of the person before the court.
- Judges should be aware that clicking on “like” 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.
Of course, judges also share many of the same concerns faced by traditional social media users. First, it is difficult to restrict social media content to an intimate circle of connections. In some case, comments, images, or profile information, some of which may be embarrassing or unflattering if widely disseminated, may be retransmitted without the user’s knowledge or permission. Second, unlike in-person interactions, social media relationships create a permanent record that can last indefinitely. This should be enough to encourage everyone to use their account “judiciously.”