Judges had best be careful with the tweeting and the friending, the American Bar Association has warned in issuing guidelines for jurists’ use of social media.
The ABA released its ethics opinion on February 21, following moves by a variety of states to address judges’ use of sites like Facebook, LinkedIn and Twitter. Issued by the Standing Committee on Ethics and Professional Responsibility, the opinion advises judges that, in general, they can post, connect, comment, tweet and "like" as much as anyone else.
"Social interactions of all kinds, including ESM [electronic social media], can be beneficial to judges to prevent them from being thought of as isolated or out of touch," the committee wrote.
Even so, judges must keep in mind their overarching ethical obligation to promote public confidence in the judiciary and appear unbiased, the committee wrote."This requires that the judge be sensitive to the appearance of relationships with others."
The opinion serves as an explanation of the rules that make up the ABA Code of Judicial Conduct, which provides guidelines for individual states’ judicial conduct rules.
The gist of the opinion is that judges should be guided by their ethical obligations to appear fair and ensure the integrity of the judiciary. It does not require judges, in general, to disclose in court that they have social media connections with lawyers or witnesses involved in a pending matter. "Because of the open and casual nature of ESM communication, a judge will seldom have an affirmative duty to disclose an ESM connection," the opinion says.
It warns judges that "liking" political campaign material could be construed as endorsing candidates, and cautions that online contact through social networks may amount to ex parte communication.
Ethics lawyer Michael Downey fears the ABA opinion doesn’t fully consider the client’s perspective."Lawyers and their parties view things differently," said Downey, a partner at Armstrong Teasdale.
Although legal professionals may think it’s normal for a judge and a lawyer to maintain a social network connection, a losing party could view that as unfair. "They’ll see that as the reason they lost," he said.
California, Florida, Ohio, Kentucky and additional states have issued ethics guidance regarding judges’ use of electronic social media. In California, judges are prohibited from including in their social networks lawyers with cases pending before them. Florida prohibits lawyers from adding a judge to their social networks if they might appear before that judge.
Ethics rule-making bodies are struggling to keep up with the ways in which social technology intersects with lawyers’ and judges’ obligations to the public. For example, many jurisdictions have yet to address the obligations of lawyers-turned-judges, Downey said.
"Do most judges really need to be on LinkedIn communicating with lawyers?" he said. "Do they really need a big professional network?"
Leigh Jones is a reporter for The National Law Journal, a Legal affiliate based in New York.