Implications of social media are far reaching and the legal community is not immune. One scenario that has occurred involves judges’ participation in social media. Judges’ ethical obligations set certain parameters for out-of-court contact with lawyers who appear or, in some cases, who may appear before them. The application of these parameters to the world of social networking is, like social networking itself, evolving. Below are three state ethics committee opinions involving the application of the ethical obligations of judges in the context of social networking.
The South Carolina Advisory Committee on Standards of Judicial Conduct issued an advisory opinion in October 2009 that addressed the question directly. The opinion gives judges broad latitude to participate in social networks and could even be read as encouraging such activity:
A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. . . Allowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge. Thus, a judge may be a member of a social networking site such as Facebook.
The South Carolina opinion is more permissive than the one issued by the Florida Judicial Ethics Advisory Committee in November 2009. The Florida advisory opinion provides that judges may not friend lawyers who may appear before them. The Florida opinion advises judges of the following:
Judges may have a personal page on Facebook or other social-networking sites and may post comments and other materials on their own pages, provided the material does not otherwise violate the Code of Judicial Conduct.
A judge may not be “friends” with any lawyer who may appear before him.
The opinion recognizes that being a Facebook friend does not mean that there is a friendship in the traditional sense. But, by identifying the lawyer as a “friend,” the judge risks conveying that the lawyer is in a position to influence the judge. Thus creating or potentially creating, the appearance of impropriety.
The North Carolina Judicial Standards Commission publicly reprimanded a judge who friended an attorney appearing before the judge during the then-pending matter. The Commission also reprimanded the judge for independently gathering evidence by Googling one of the parties. After friending the attorney on Facebook, the judge posted various comments on his own wall that the Commission believed were directly intended for the attorney. The attorney returned in kind by posting “responses” on the attorney’s wall (instead of on the judge’s wall).
This is particularly interesting, given that we’re not really sure how direct the communications were. Nevertheless, the back-and-forth (even if not direct) may easily have suggested some level of impropriety. On this issue, note that the 2007 ABA Model Code of Judicial Conduct contains a new provision under Rule 2.9(C) that prohibits a judge from investigating facts in a matter independently; the comment to the rule provides that the prohibition extends to a judge’s use of electronic research (such as a Google search).