ABA Releases Opinion on Judges' Use of Social Media

by Holland & Knight LLP
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A social network is a service that allows its members to share personal information and make personal contacts through a website, mobile phone or other similar wireless device. This openness and sharing has been embraced by the average internet user, yet such benefits must be carefully considered by sitting judges. The Model Code of Judicial Conduct states that judges “should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens….” and should otherwise act in a manner that upholds the judiciary's integrity and independence and avoid the appearance of impropriety. Thus, under certain circumstances, ethical issues may arise when judges engage in social media, particularly when they make online connections or "friendships" with attorneys or parties who may come before their court. Other dangers of judges' social media use include public comment or ex parte communications on pending cases, the appearance of bias or undue influence by outside organizations, general conduct demeaning to the judiciary, and  impermissible political activity.

Last week, the American Bar Association (ABA) released a formal opinion discussing the use of social media by judges. See American Bar Association, "Judge's Use of Electronic Social Networking Media," Formal Op. 462 (Feb. 21, 2013). In short, the ABA stated that a judge may use social media, but like other offline contacts and professional relationships, he or she must comply with applicable ethical rules and not engage in any behavior that would undermine the integrity or impartiality of the court. The opinion recognized the casual nature of social networks and commented that a simple social media connection or friendship "does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person…. "However, the ABA noted that while a judge will not often have an affirmative duty to disclose a particularly social media connection, "[i]f that connection includes current and frequent communication, the judge must very carefully consider whether that connection must be disclosed," especially when the judge knows that a party, witness or attorney appearing before the court has a social media connection with the judge.

The ABA Opinion echoes the 2009 opinion released by the New York Advisory Committee On Judicial Ethics, Op. 08-176 (Jan. 29, 2009) (“Provided that the judge otherwise complies with the Rules Governing Judicial Conduct, he/she may join…an Internet-based social network. A judge…should exercise an appropriate degree of discretion…and should stay abreast of the features…[that] may impact his/her duties under the Rules. [As to friending attorneys], a judge must… consider whether any such online connections, alone or in combination with other facts, rise to the level of a “close social relationship” requiring disclosure and/or recusal).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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