Connecticut lawyers who wondered whether judges could use social media sites like Facebook and Twitter without violating judicial ethics rules recently learned something new.
In an informal opinion released earlier this year, the state Committee on Judicial Ethics opined that judges can in fact enjoy the professional benefits of social media, just like anyone else. But since sharing personal photos and comments on sites like Facebook is “fraught with peril for judicial officials,” judges shouldn’t get too personal.
Since it was created in 2008, the Committee on Judicial Ethics has met at the request of judges and magistrates who have concerns about what is permitted under ethics rules. The committee, made up of judges and one law professor, studies the issues in question, and provides formal and informal advisory opinions.
With more than two months still left in 2013, the committee has already been asked to weigh in on more ethics issues than it has in any other full year. For the first time ever, the committee was asked to weigh in on the growing influence of social media on the lives of jurists. In its informal opinion, the committee in June said judges should avoid being online “friends” with law enforcement officials, attorneys, or anyone who might appear in their court, because that contact could create the appearance of favoring one party over another. The ethics committee reminded judges that they should not post any material online that would suggest they favor any point of view or cause.
That means a judge shouldn’t endorse, “or like” any commercial or advocacy website, be it on Twitter, LinkedIn, or anyplace else, the committee said.
As judges become more socially connected to non-judicial members of their communities than ever before, they are also subject to a growing body of opinion involving how they should conduct their lives out of work. The thread holding all of the ethics opinions together are the rules of judicial conduct. Those rules require judges to avoid the appearance of favoring one side over another, to uphold the decorum of the courts, and to treat their positions with respect.
The common theme in many of these ethical questions, “is whether outside activities inhibit a judge from performing” his or her core duties as a judge, said David Atkins of Pullman & Comley, whose work includes representing lawyers and judges in ethics violations matters.
Retired Connecticut Supreme Court Justice Barry Schaller, who chairs the five-member ethics committee, said he’s noticed the spike in requests for ethics opinions over the past year. The latest statistics show there have been 41 requests for advisory opinions so far this year, up sharply from the 34 requests that were made for all of 2012. In 2008, the year the committee was formed by Chief Justice Chase Rogers, there were 28 decisions.
Schaller offered one likely explanation for the rise in requests. Since 2012, there have been 23 new Superior Court judges appointed. The panel, he explains, typically sees more requests from new judges, because they want to make sure what they are doing is allowed under the rules. “There is an awareness of the committee being an effective way to do that,” he said.
Although the panel’s opinions are non-binding and advisory in nature, they are considered to be important, said John Logan, who chairs the Connecticut Bar Association’s Committee on Professional Ethics, which provides similar informal ethics opinions for lawyers. “I think these opinions serve as a reminder that judges must avoid the appearance of any impropriety.”
In the five years since the committee was created, one change that Schaller has noticed is a greater number of requests for ethics opinions involving what judges do in their free time. “Judges don’t seem to ask for as many opinions about their on-the-bench activities as they used to,” Schaller said.
On-the-bench ethics questions typically seek clarification on the circumstances under which a judge should recuse himself or herself from a case. For example, a judge might ask whether an adverse ruling they previously made against a particular party might indicate a prejudice that should exclude them from a subsequent case. The typical answer is that no recusal is needed, unless there is a chance the judge would not be able to act in an impartial manner.
Requests for questions involving recusals have steadily dwindled, from six a year in 2009 to four in 2012.
It could be that the committee has addressed so many of those issues over the years, that the advisory opinions provide the guidance that’s needed, Schaller said. With that in mind, he said, the number of those types of inquiries is decreasing, and “we’re seeing more off-the-bench inquiries.”
One such inquiry is whether a sitting judge can accept an award or honor from a civic group or professional organization.
A trend in that direction became evident last year, after a judge asked the committee whether it would be appropriate to accept an award from the Mothers Against Drunk Drivers organization.
In a lengthy informal opinion, the panel found that accepting the honor would not be appropriate, because such awards can undermine public confidence in the impartiality of judge and use the office to “advance the personal or economic interests of the judge or others.”
The committee has since seen more requests on that topic, from judges asking if its proper for them to accept awards or invitations to speak before an organization, he said.
Driving many of those questions, he said, is a generational shift.
A lot of the state’s newest judges grew up professionally in an era that has seen a tremendous change, both in terms of the influences of social media, and in the more open lifestyle of judges, Schaller said. “When I first became a judge almost 40 years ago, it was commonly understood that judges were to withdraw from community organizations and social clubs.”
But over time, he said, “we’re seeing an evolution. Judges are more permitted than they used to be to engage in social and community activities.” And as a result, the committee is being asked for clarification on what sort of online and social activities are allowed.”
The current committee is comprised of Schaller, former Chief Court Administrator Barbara M. Quinn, Judge Maureen D. Dennis, Judge Christine E. Keller and Professor Sarah F. Russell of Quinnipiac School of Law. Judge Thomas J. Corradino is an alternate member. The members meet — often via conference call — only when they receive a request for an opinion.
The judge or magistrate who makes the request is asked to provide factual information about the issue at hand. The committee then makes a preliminary review of the relevant rules. Members look up the judicial codes in other states, so see how similar questions have been handled across the county.
Back and forth, the panelists ask and answer questions in a roundtable format, until they reach a decision. “Occasionally, someone disagrees with the others, and we will include that in the decision that is posted on the website.”
The committee issues formal and informal opinions, depending on the request, with the only difference being that formal requests require a written opinion. Neither is more official than the other. “It’s very rare that someone wants a written opinion,” Schaller said.
In any case, he said, the committee tries to keep its advisory opinions “very narrow,” speaking only to the facts and jurist in the question before them. “We don’t try to think about what else these opinions might apply to,” he said.
Many states, including Florida, New York and New Jersey, have issued advisory rulings on the use of social media by judges. Among those opinions, Connecticut’s opinion is considered to be one of the most comprehensive, because it lists specific social media activities that could be problematic, including giving out legal advice online.
“These opinions are very well-written,” Logan said.
In addition to its informal opinion on social media, other questions that were put before the committee earlier this year included whether a judge could attend an annual meeting of the Connecticut Trial Lawyers Association. Another request asked whether a new judge could accept a book from a lawyer as a congratulations gift.
In the question about attending the CTLE meeting, the committee found that the judge would be permitted to attend without violating any rules, as long as he or she did not discuss any pending or impending cases “in any court.”
As far as accepting a book from a lawyer who might appear before the judge, the committee found there was no harm, as long as the value of the gift “was not so great that a reasonable person would believe that the give would undermine the Judge’s independence, integrity or impartiality.”
Schaller said he envisions a time when so many questions have been answered, that there will be no more questions left. But for now, he added, “we won’t turn any request away.”•