Seven days after the release of an ethics opinion about judges using social media, more than 20 people had sent that opinion to Seana Willing, executive director of the State Commission on Judicial Conduct.
"Everybody here has been talking about what the rules are in Texas and the considerations of what they ought to be in Texas," Willing says, noting that the Texas Code of Judicial Conduct doesn’t specifically address judges using social media.
It can be beneficial for judges to use social media, but they always must comply with judicial-conduct codes and "avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety," says the Feb. 21 Formal Opinion No. 462. It’s written by the American Bar Association Standing Committee on Ethics and Professional Responsibility.
Jim Alfini, a member of the committee, says judges should "be careful."
"One of the biggest risks is that a judge will become so involved with a lawyer, or even a party, that they’ve compromised their image of impartiality to the point where disqualification would be necessary," explains Alfini, professor and dean emeritus at South Texas College of Law in Houston.
But Texas Supreme Court Justice Don Willett, who is prolific on Twitter, writes in an email that "lawyers galore" follow him on Twitter but "following doesn’t mean favoring."
Willett explains, "I can’t fathom that being a rational basis for recusal or disqualification."
However, on Facebook, Willett doesn’t endorse or "like" other political candidates, and he mainly posts family-related news on his profile.
Gil Jones, a senior judge and certified mediator in Marble Falls, says he wrote a blog and maintained profiles on Facebook and Twitter when he was serving as judge of the 33rd District Court in Burnet.
But Jones says he didn’t become Facebook friends with many lawyers.
"There were a couple lawyers I had longtime personal relationships with that were well known. There were a couple of those I friended. I otherwise did not friend lawyers, cops, people who were political activist types," he says.
He occasionally wrote about topics interesting to lawyers, like court processes or the justice system. He never discussed current or potential cases, though, and always took care to write "politely."
"I’m always cognizant of the fact you are a judge 24/7 and people are watching," he says.
The opinion provides recommendations for judges using social media. Judges should remember that wide dissemination is always possible of comments, "some of which might prove embarrassing." They shouldn’t form relationships that could give the impression that others "are in a position to influence the judge."
The opinion advises judges to avoid anything that others could view as an ex parte communication about cases. It says judges shouldn’t use social media to get information or comment about cases.
In some circumstances, judges may need to disclose if they have an electronic social media (ESM) connection with a lawyer or a party appearing before them.
"Because of the open and casual nature of ESM communication, a judge will seldom have an affirmative duty to disclose an ESM connection. If that connection includes current and frequent communication, the judge must very carefully consider whether that connection must be disclosed," according to the opinion.
It also discusses recommendations for judges using social media to campaign for office or to comment on other political candidates.
But the opinion references model rules that are common in states with nonpartisan judicial elections, says Willing. She notes that Texas rules are different, because judges here do affiliate with political parties.
Willett writes that he thinks it is "political malpractice" for judges to ignore social media.
"It’s a low-cost but high-voltage way to connect, especially with the most motivated, fired-up voters — those who command large follower-ships and influence untold scores of others," writes Willett, noting he would "happily dial down my social-media activity once Texans opt for smart judicial-selection reform."
Willett notes that judges should be thoughtful and use common sense; he writes that he never discusses pending cases or gives opinions on disputes that could come before the Texas Supreme Court.