aba-20427

Judge’s Use of Electronic Social Networking Media

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.” 

aba-20427According 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!

About Tyson Snow

Tyson B. Snow is a partner at Pia Anderson Dorius Reynard & Moss, LLC, in Salt Lake City. He is considered an expert on social media law, particularly social media law's impact on the workplace and employment. His practice involves all areas of federal court litigation with an emphasis in employment litigation, commercial litigation, and intellectual property litigation, including trademark disputes, cybersquatting, copyrights, and other technology related issues. He also frequently litigates in Utah’s state district and appellate courts. Email: tsnow@padrm.com Twitter: @tysonESQ

5 thoughts on “Judge’s Use of Electronic Social Networking Media

  1. My only concern is the terminology the ABA used, “electronic social media.” Versus…..? The term social media implies electronic. You would not say non-electronic media, right? As a former digital manager (now attorney), when I see the term ESM, I get the impression that someone doesn’t really understand social media or is looking to coin a new term. I think we have enough complexity in “our” language, why add more? Besides, it makes lawyers look a bit Flintstonian. I think we fight with that perception enough. And, if you start using this term in your vernacular, you will get a lot of wrinkled foreheads.

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