It should be no surprise that the continuing growth of social media tools such as Facebook, Twitter, and LinkedIn has led to questions about its use by members of the legal community, including members of the judiciary. In fact, New York's Advisory Committee on Judicial Ethics1 has just issued another opinion2 exploring the ethical constraints of social media use by judges, following one it issued in 2009.3

New York is not alone in tackling this subject. In February, the American Bar Association Standing Committee on Ethics and Professional Responsibility offered a formal opinion entitled "Judge's Use of Electronic Social Networking Media,"4 and the subject recently has been debated and analyzed in a variety of states across the country.5

One interesting aspect of the judiciary's use of social media that many of these various opinions have faced is the seemingly straightforward subject of whether a judge must recuse himself or herself in the event a lawyer whom the judge has "friended" shows up in the judge's courtroom. Of course, this issue has important practical implications. The different opinions, however, have reached different results, as this column will discuss. It would appear that the more experience judges, lawyers, and bar groups have with social media, the more comfortable they all may become with the way judges and lawyers use it.

The States Split

The states that have considered whether judges can use social networking sites generally have concluded that they may do so.6 They diverge, however, when considering whether judges must recuse themselves if they have friended a lawyer who appears before them.

In Florida, the Florida Supreme Court Judicial Ethics Advisory Committee has prohibited judges from adding lawyers who may appear before them as "friends" on networking sites, such as Facebook.7 For its part, the Massachusetts Judicial Ethics Committee has stated:

The Committee is of the opinion that the Code prohibits judges from associating in any way on social networking sites with attorneys who may appear before them. Stated another way, in terms of a bright-line test, judges may only "friend" attorneys as to whom they would recuse themselves when those attorneys appeared before them.8

On the other hand, Kentucky, Ohio, and South Carolina have issued opinions allowing judges to participate in social networking sites and have found no ethical prohibition or requirement for mandatory recusal.9

Last year, the Maryland Judicial Ethics Committee issued Opinion Request Number 2012-07,10 which generally sets forth the reasoning of these latter opinions. Here, the committee acknowledged a "concern" that being designated as a "friend" of a judge on a social networking site might be perceived as indicating both that the person was in a position to influence the judge and that the person may have ex parte communications with the judge via that medium.

Nevertheless, the Maryland committee noted, there was "no rule" prohibiting judges from having "friends," in the traditional sense, be they attorneys or laypersons. Indeed, the committee pointed out, in the vast majority of cases, attorneys became judges "after years of working in the legal profession and establishing personal relationships with others in that profession." The committee declared that an attorney was "neither obligated nor expected to retire to a hermitage upon becoming a judge." Of course, the committee continued, judges "must be circumspect in all of their activities" and "sensitive" to the impressions these activities may create, but they "may and do continue to socialize with attorneys and others." It then declared that it saw "no reason to view or treat 'Facebook friends' differently."

A different result was reached in California. Opinion 66 of the Judicial Ethics Committee, issued on Nov. 23, 2010,11 found that a judge may include lawyers who may appear before the judge in the judge's online social networking, but that a judge may not include lawyers who have a case pending before the judge in the judge's online social networking.

The committee explained that there was no ethical rule prohibiting judges from interacting with lawyers who appeared before them, noting that judges were permitted to participate in organizations such as the American Inns of Court, where judges and lawyers interact socially. Accordingly, the committee decided, a per se prohibition of social networking with lawyers who may appear before a judge was not ethically mandated.

The committee continued by discussing two specific examples of a judge "friending" an attorney.

In the first example, it examined the situation where a judge maintained a social networking site for "extended family, old friends and a few colleagues" in which the judge updated family and friends about the judge's extrajudicial activities, such as by posting vacation photos, updates on the judge's children, and the judge's thoughts about books, movies, and restaurants. According to the committee, if a former law school classmate of the judge, who was not a close friend, requested to be included in the judge's social networking site, which would in turn make the judge a participant in the former classmate's page, and if the former classmate practiced in the judge's jurisdiction and would occasionally appear before the judge, "it would be improper for the judge to include the attorney in his/her social networking site." The committee reasoned that the site was personal and included mostly people who were close to the judge, and that a person aware of the facts "could reasonably conclude" that the attorney was in a special position to influence the judge.

By contrast, the committee found that friending would be permissible in a case where the judge was on the executive committee of a section of the local bar association and a member of the local Inn of Court; the judge wanted to communicate with members of both organizations using the judge's social networking site; the judge did not intend to use the site to update participants on his or her personal nonprofessional activities; and any lawyer who wished to be included in the site would be permitted to do so even if the lawyer was not a member of the organizations. Under these facts, the committee decided, it would be permissible for a judge to include attorneys who may appear before the judge, given that the site was not being used to share personal information and was being used to facilitate professional interactions. In the committee's view, a person aware of these facts "could not reasonably conclude that any individual participant" was in a special position to influence the judge simply by virtue of being included in the site.12

The committee next considered whether a judge may include lawyers who have a case pending before the judge in the judge's online social networking site—and concluded that a judge may not do so.

The committee declared that although it might be permissible for a judge to interact on a social network site with an attorney who "may appear" before the judge, it was "not permissible to interact with attorneys who have matters pending before the judge." Indeed, the committee continued, when a judge learned that an attorney who was a member of that judge's online social networking community had a case pending before the judge, the online interaction with that attorney "must cease" (i.e., the attorney should be "unfriended") and the fact this was done should be disclosed.

Regardless of the nature of the social networking page, the committee determined, maintaining online contacts while a case was pending created appearance issues that could not be overcome through disclosure of the contacts.

New York

New York's most recent foray into this thicket took place at the end of May, in Opinion 13-39.

A judge asked the Advisory Committee on Judicial Ethics whether he or she must exercise recusal in a criminal matter at the request of the defendant or the defendant's attorney because the judge was "Facebook friends" with the parents or guardians of certain minors who allegedly were affected by the defendant's conduct.

The committee concluded that the "mere status of being a 'Facebook friend,'" without more, was an "insufficient basis to require recusal." The opinion also determined that a judge's impartiality could not reasonably be questioned in this situation and that there was no appearance of impropriety based solely on having previously "friended" certain individuals who thereafter became involved in some manner in a pending action.

The opinion is not surprising given the committee's prior decision in Opinion 08-176 and Opinion 11-125. In Opinion 08-176,13 the committee decided that, with respect to social media relationships, it could not "discern anything inherently inappropriate about a judge joining and making use of a social network." Admittedly, the committee suggested that a judge "should be mindful of the appearance created when he/she establishes a connection with an attorney or anyone else appearing in the judge's court through a social network…[and] must, therefore, consider whether any such online connections, alone or in combination with other facts, rise to the level of a…relationship requiring disclosure and/or recusal," but the committee seemed quite comfortable with social media.

Then, in Opinion 11-125, the committee recognized that judges interacted with some lawyers who were just "acquaintances" who interacted with judges outside court as a result of "happenstance or some coincidental circumstance such as being members of the same profession, religion, civic or professional organization, etc." In this situation, "neither disqualification nor disclosure" was required as long as the judge believed that he or she could be fair and impartial, the committee concluded. This decision obviously influenced the committee's view in the recently-decided Opinion 13-39.

Conclusion

There is a growing acceptance by New York, and by other states and the American Bar Association, of the judiciary's use of social networking, and an acknowledgement that social media "friends" are not friends in the typical sense. While not yet uniformly welcomed, the bottom line would appear to be that as people become more and more comfortable with social media and the use of social media by judges, there is likely to be less and less concern about any appearance of impropriety.

Shari Claire Lewis, a partner in the Long Island office of Rivkin Radler LLP, can be reached at shari.lewis@rivkin.com.

Endnotes:

1. http://www.nycourts.gov/ip/acje/.

2. Opinion 13-39, issued May 28, 2013, available at http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202602679557&Judicial_Ethics_Opinion_1339.

3. Opinion 08-176, issued Jan. 29, 2009, available at http://www.courts.state.ny.us/ip/judicialethics/opinions/08-176.htm.

4. Formal Opinion 462, issued Feb. 21, 2013, available at http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_462.authcheckdam.pdf.

5. See discussion, infra.

6. See Aurora J. Wilson, "Let's Be Cautious Friends: The Ethical Implications of Social Networking for Members of the Judiciary," 7 Wash J.L. Tech. & Arts 225 (2012), available at http://digital.law.washington.edu/dspace-law/handle/1773.1/1112.

7. See Florida Judicial Ethics Advisory Committee Opinion 2009-20, issued Nov. 17, 2009, available at http://www.jud6.org/LegalCommunity/LegalPractice/opinions/jeacopinions/2009/2009-20.html.

8. See Massachusetts Judicial Ethics Committee Opinion 2011-6, issued Dec. 28, 2011, available at http://www.mass.gov/courts/sjc/cje/2011-6n.html; see also Oklahoma Judicial Ethics Opinion 2011-3, issued July 6, 2011, available at http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=464147 (judge who owns an Internet based social media account may not add court staff, law enforcement officers, social workers, attorneys, and others who may appear in his or her court as "friends" on the account).

9. See Kentucky Judicial Ethics Committee Opinion JE-119, issued Jan. 20, 2010, available at http://courts.ky.gov/commissionscommittees/JEC/JEC_Opinions/JE_119.pdf; Ohio Judicial Ethics Committee Opinion 2010-7, issued Dec. 3, 2010, available at http://www.supremecourt.ohio.gov/Boards/BOC/Advisory_Opinions/2010/Op_10-007.doc; South Carolina Advisory Committee on Standards of Judicial Conduct Opinion No. 17-2009, issued October 2009, available at http://www.judicial.state.sc.us/advisoryOpinions/displayadvopin.cfm?advOpinNo=17-2009.

10. Available at http://www.courts.state.md.us/ethics/opinions/2000s/2012-07.pdf.

11. Available at http://www.caljudges.org/files/pdf/Opinion 66FinalShort.pdf.

12. It should be noted that the committee also determined that in cases where "friending" an attorney was permissible, "disclosure is required in every case" because of the "peculiar nature of online social networking sites, where evidence of the connection between the lawyer and the judge is widespread but the nature of the connection may not be readily apparent."

13. Opinion 11-125, issued Oct. 27, 2011, available at http://www.courts.state.ny.us/ip/judicialethics/opinions/11-125.htm.