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!
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).
For those who don’t know, I am a big fan of JDSupra. The site offers thousands of articles on nearly every legal topic. Some articles are good, other articles are bad, and most are fairly short and straight to the point. Sifting the wheat from the chaff can be a little difficult but there are certainly nuggets of gold to be found within the constant stream of submissions.
One place to always keep your eye on is the Social Media Policy page. It is constantly updated with quality articles from quality writers who are well educated on the topic of social media and its application and effect in a variety of legal areas and scenarios. (And no, I am not one of the writers or featured authors.)
For example, this week you can learn about the NLRB’s determination that (yet another) social media policy violates the NLRA; how employers should address the increasing use of social media by employees; social media corporate policies; and plenty more.
Check the page out and consider subscribing to the news feed. The updates are generally quite germane to employers and the employment environment. The posts will definitely help you stay on top of the latest developments in social media law and best practices.
Another roundup of the Week in Social Media News–a summary of social media news from around the web. As always, the focus of these stories is social media legal news (as opposed to the tens of thousands of stories on social media in general). Having culled through the hundreds of articles I review each week, here are some of the social media discussions I have found to be interesting and (hopefully) applicable (and I promise that more original content is on its way–but you all know how it goes right before Christmas; everyone is trying to get everything filed so they can take 2-3 weeks off between December 20th and January 10th):
- Socially Aware: The Social Media Law Update – Morrison Foerster - Morrison & Foerster Social Media Newsletter. Vol. 3, Issue 5 December 2012. Socially Aware: TheSocial Media Law Update. In this issue of Socially Aware, our …
- Don’t Twitter away your social media accounts | Employment Law … - While social networking has fast become a powerful marketing tool for companies, it’s proven equally valuable to employees as a vehicle for professional.
- Update: Social Media Regulations May Soon Become Law in New …
New Jersey is one step closer to enacting legislation that would prohibit New Jersey employers from using social media to screen applicants.
- Twitter Followers Held Hostage? The Legal Risks Of Outsourcing Social Media - That means things are bound to go wrong — and disputes between companies and thesocial media marketing agencies they hire are all but certain to arise. But in such a fledgling field, the laws haven’t necessarily caught up with technology.
- Social-media ownership still a gray area - Scott Horton is a partner in Jaeckle Fleischmann & Mugel LLP and the firm’s resident expert onsocial media law. While he agrees that it’s critical to have sound policies in place, he still sees many employers that haven’t addressed the specific …
- No new ethics laws eyed for social media following Frederick Facebook posting - The executive director of the State Ethics Commission said this week there is no plan to consider any new laws governing the conduct of elected officials and government employees using Facebook or other social media, but one local state lawmaker …
- Legal Guidelines For CEOs On Social Media – Avoid The Netflix … - In July, Netflix CEO Reed Hastings posted on Facebook that viewing on his company’s site “exceeded 1…
- Why Social Media Matters to Lawyers – Reason #3 – The New Legal … - In the previous two installments, I’ve discussed two reasons that social media matter to lawyers in private practice: personal-effort efficiency and out-of-pocket …
- Social Media: The “New” Courthouse? | Law Technology Today - Let’s forget, for a moment, the magical marketing benefits of social mediaand talk about law …
- Keeping social media legal - Expert Social Media - In a world where everything is legal and illegal, you want to make sure you are doing everything in your power to stay legal. By being extra careful, you can …
It is always good to stay apprised of recent news surrounding social media, particularly how lawyers, attorneys, and other legal professionals are using social media as well as what they are saying. I hope you find this weekly installment of the previous week’s news related to social media and the law to be helpful, informative, and, in certain cases, entertaining. Let’s hope for some more good and interesting news in December!