Judge’s Use of Electronic Social Networking Media – ABA Formal Opinion 462:
“A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.“
According to Formal Opinion 462 [PDF] of the American Bar Association, published on February 21, 2013. Surely, this formal opinion, which refers to Electronic Social Media (“ESM”), has been in the works for a long time. It is, however, at odds with a recent Florida decision I previously discussed. In that case a Florida appellate court held that a judge should have recused himself because he was a Facebook “friend” of an attorney appearing in the matter: Lawyers & Judges: Be Careful Who You Friend.
Domville v. State, — So.3d —-, 2012 WL 3826764 (Fla. App. 2012).
As indicated in that post, the Florida Supreme Court was going to take up the issue but with this recent opinion from the ABA, it may now be moot. I imagine the Florida Supreme Court will cite to this opinion and rely on the relevant Rules of Judicial Conduct in acknowledging that social media “relationships” are not problematic so long as they do not undermine or bring into question the judge’s appearance of impartiality.
The formal “Judge’s Use of Electronic Social Networking Media” Opinion will likely clear up this issue that has previously been addressed in piecemeal fashion by various state bar organizations.
Here are a couple of comments from the Opinion I found interesting:
- A judge who participates in ESM should be mindful of relevant provisions of the Model Code. For example, while sharing comments, photographs, and other information, a judge must keep in mind the requirements of Rule 1.2 that call upon the judge to act in a manner that promotes public confidence in the judiciary, as previously discussed.
- The judge should not form relationships with persons or organizations that may violate Rule 2.4(C) by conveying an impression that these persons or organizations are in a position to influence the judge.
- A judge who has an ESM connection with a lawyer or party who has a pending or impending matter before the court must evaluate that ESM connection to determine whether the judge should disclose the relationship prior to, or at the initial appearance of the person before the court.
- [However] Because of the open and casual nature of ESM communication, a judge will seldom have an affirmative duty to disclose an ESM connection.
- [But] a judge should disclose on the record information the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification even if the judge believes there is no basis for the disqualification.
The opinion goes on to discuss a judge’s use of social media in running a judicial campaign. I am adamantly opposed to judicial elections. So, if you live in a jurisdiction where you elect judges during election cycles or if you are a judge who has to campaign for your position, you can read the opinion to determine what you can and cannot do.
Free prize to anyone who sends me a transcript or an order / opinion that includes a judgment disclosing an ESM connection with one or more lawyers involved. I have numerous judges as social media friends. Maybe I can be the first!
For those of you who don’t read Legal Productivity, what is wrong with you? It is a great blog with great information. A recent post caught my attention: Effective Tweeting: A Twitter Checklist. I suggest you go read the whole article, including the explanations behind each of the items in the checklist (there are tips and tricks you won’t want to miss). In the meantime, here is the “checklist” for quick reference:
- Tweet when your followers are around
- Tweet frequency
- Tweet great content
- Give attribution
- It’s okay to schedule posts
- Optimize your Twitter bio
- Create Twitter lists
All of those are good suggestions. If you are only going to follow one, make sure it is “Tweet great content.” When it comes to lawyers and other legal professionals (or any professionals), the most important thing you can do is tweet out great content (and then engage with those who ask questions about your great content). This is one of the fundamental keys to successfully using Twitter.
I’ve offered up on my thoughts on how to effectively use Twitter in various other articles. For example, I previous posted: More Twitter Tips for Lawyers, which links to the following tips:
- Length. Although you get 140 characters for your beautiful prose, make sure your tweets are sufficiently short that they can be re-tweeted without having to be revised by the re-tweeter. (Remember that RT @[Your Name] will / should be added.) Keep your tweets short enough that they can be re-tweeted in their entirety.
- Attribution. If you tweet about another’s article or post (which is basically what all of us always do), take the time to find out that person’s Twitter handle and include it in the tweet. Not only will the attribution be appreciated, but you are also likely to pick up a new follower or get a mention by the person you’ve acknowledged. Use this to help build your network.
- Adding Substance. I’ll admit that I am guilty of not always following this tip. But we should all be better at adding a little commentary on our tweets and re-tweets. Include a brief statement of why you are sending the tweet out. It can be as simple as “Found this interesting:” followed by the title of the article or post. Too frequently, I see tweets (and send tweets) that have nothing more than the title of a post and a link. Take time to offer up a few words explaining why your followers should be interested in what you are sending.
- Frequency. Except in extreme circumstances, I would not worry about tweeting too often. I know there are many who disagree with this and suggest you purposefully refrain from flooding the twitterstream too frequently. But I don’t see it as a significant problem, especially when you are sending helpful information. Even with re-tweets–don’t hesitate to send out five re-tweets in a matter of minutes, assuming of course
, that all five are worthy of being re-tweeted.
- Repetition. When you publish a new blog post, article, or something similar, you most certainly will send notice of it to your Twitter followers. But remember that not all your followers are paying attention to their streams at the same time. Some may say it is bad form, but feel free to tweet about the post or article several times (at different times of the day) so that your followers won’t miss it.
Note that many of the tips overlap. That is not surprising. As you implement this tips, you should find that your experience, your engagement, and the overall impact you are having via Twitter increases dramatically.
Several months ago, I wrote about an interesting case in Florida; the post discussed a Florida appellate decision holding that a trial court judge should have recused himself because he was Facebook friends with the prosecutor. Summarizing from Lawyers & Judges: Be Careful Who You Friend:
In Domville v. State, — So.3d —-, 2012 WL 3826764 (Fla. App. 2012), the defendant moved to disqualify the trial court judge because of the judge and the prosecuting attorney were Facebook friends. Id. at *1 (“Petitioner Pierre Domville moved to disqualify the trial judge. The motion was supported by an affidavit averring that the prosecutor handling the case and the trial judge are Facebook ‘friends.’ This relationship caused Domville to believe that the judge could not ‘be fair and impartial.’”). The trial court denied the motion and Domville appealed.
The appellate court reversed the trial court and concluded that “[A] judge’s activity on a social networking site may undermine confidence in the judge’s neutrality. Judges must be vigilant in monitoring their public conduct so as to avoid situations that will compromise the appearance of impartiality.” Id. at *2. And since Domville had “alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial,” id., the appellate court reversed the trial court and disqualified the trial court judge.
According to the ABA Journal, Florida courts are now looking to the Florida Supreme Court for guidance on the issue. As noted in Should a judge recuse due to Facebook friendship with prosecutor? Florida supremes asked to decide:
A Florida appeals court wants guidance on an ethics issue: Should judges recuse from cases when they are Facebook friends with the prosecutor?
The 4th District Court of Appeal said on Wednesday that the matter is of great importance, and the Florida Supreme Court should decide the issue . . . .
It will be interesting to see how this case continues to develop. It is hard for me to imagine a world where judges must recuse themselves if they are Facebook friends with counsel. Most judges are former lawyers, worked for years with other lawyers, and continue to associate with lawyers. That a judge is a Facebook friend with another lawyer is no surprise at all. Personally, I am Facebook friends with several judges, most of whom were my “friends” before they took the bench. That we are “friends” says nothing (in my mind) about the judge’s ability to act impartially with respect to the matters before it. If we can be “friends” in real life, can’t we be friends on social networks?
The Florida Supreme Court should find that judges and lawyers can be Facebook friends without violating any ethical rules and that the “friendship” does not require recusal (absent additional factors).
Corporate attorneys are advising supervisors and managers to be careful when posting overly-positive or potentially misleading employee endorsements on LinkedIn. The big concern is that crafty employee plaintiffs’ counsel will use LinkedIn reviews much in the same way that they currently use positive reviews found in the employee’s written file: to establish that their client was wrongfully discharged or fired as a result of discrimination.
Counsel who represent employers have all come across glowing employee reviews that discuss, at length, the superior qualities and work ethic of an employee who, within weeks of the review, is fired for poor performance or insubordination.
As described in the National Law Journal’s article:
Plaintiffs’ lawyers, they fear, are scouring these sites, looking for evidence to dispute firings, as most LinkedIn recommendations are positive. So if a supervisor claims that an employee was let go due to performance problems but gave a rave review about him or her on LinkedIn — that, the lawyers stress, won’t look so good.
It is a valid point. Employment lawyers and H.R. personnel are constantly instructing management and supervisors to conduct regular, accurate, performance reviews. Reviews posted on LinkedIn need to be equally accurate. A good practice employers might implement is to tell their supervisors and managers not to post reviews, positive or negative; according to Carolyn Plump, a partner at Philadelphia’s Mitts Milavec, as quoted in the National Law Journal:
Generally, my advice is that I think employers are often better served by merely stating dates of employment, positions with the company and salary, and staying away
from much more because there are so many potential ramifications if they say something.
Of course, like most stories, this one has both sides. The example cited by the National Law Journal is that of a supervisor who is constantly leaving negative reviews. While a single negative review might be offered as evidence of discrimination, counsel for the management could offer evidence of all the other negative reviews to establish that the supervisor was not singling out a particular gender, race, or nationality.
So what is the conclusion? It is the always the same conclusion. Conduct regular, accurate, performance appraisals and enforce your existing policies indiscriminately.