Judges Seek Stability in the World of Social Media and Evolving Expectations Surrounding Today’s Preferred Medium

Written by: Brooke Boucek

Member, American Journal of Trial Advocacy

With social media in the headlines concerning President Donald Trump, people are talking about the standard to which we hold our president and his public opinions. Many people, including President Trump, believe that his active twitter account and tremendous following contributed to his presidential campaign success. This modern form of communication presents a way for people of power to reach the public directly.

Present technology, such as social networking sites, provides an instantaneous outlet for communal engagement.  Through social media, an individual may communicate with hundreds, thousands, or even millions of people across the globe. Additionally, social media humanizes celebrities, politicians, and judges by increasing their relatability to the average person.  However, this creates a lot of controversy.  Specifically, should judges use social media in the same way the President of the United States regularly uses it to reach supporters and adversaries?

Per the judicial code of ethics, “[a] judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”[1] Because judges are held to a higher standard than the average social media user, judges have a duty to present themselves as neutral and unbiased. While seeing the need to dodge “the appearance of impropriety,” judges like The Honorable Don Willett of the Texas Supreme Court also view social media, such as Twitter, as a progressive outlet on which to discuss events and topics outside of the courtroom and a way of staying connected with what is going on in the world. Judge Willett has over seventy-four thousand followers, and he tweets, or retweets, everything from news and funny memes to family photos and Bible verses.

Particularly during election time, Twitter serves as an unparalleled medium for judges to reach the communities and citizens they serve. Via Twitter, a judge may take his or her stance on issues without intermingling the affairs of the courtroom. But as many participate in the camaraderie and banter widely accepted on social media, judges must maintain a fine balance and remain loyal to their duties in upholding “the integrity and independence of the judiciary . . . .”[2]

Although some jurisdictions have issued opinions, most have not spoken on the issue of judicial ethics in regards to judiciaries’ use of social media. States including Arizona, California, Florida, Kentucky, Maryland, Massachusetts, New York, Ohio, Oklahoma, South Carolina, and Washington have all issued opinions regarding judicial ethics and social media.

Recently, the Arizona Supreme Court Judicial Ethics Advisory Committee stated a judge’s use of social media “could . . . raise concerns about the judge’s impartiality.”[3] The court determined, because a judge is required not only to avoid impropriety, “but also the appearance of impropriety,” a judge must take reasonable measures to determine “whether grounds for disqualification exist in a particular case.”[4] In Kentucky, however, judges may participate in online social networking and be “friends” with individuals, including attorneys, who appear before the judge.[5]  The Committee stated “that the judge or justice should be extremely cautious that such participation does not otherwise result in violations of the Code of Judicial Conduct.”[6]

Florida has taken a narrower approach, specifying that judges using social media and listing lawyers who may appear before them as “friends” on social networking pages reasonably conveyed to others the impression that they are in a special position that may influence the judge.[7] Like Florida, Massachusetts issued an advisory opinion providing guidance for judges stating that the Code does not allow a judge to “friend” an attorney because it “creates the impression that those attorneys are in a special position to influence the judge.”[8] Likewise, an Oklahoma Judicial Ethics Advisory Panel issued a similar opinion stating that a judge may use social media accounts with restrictions.[9] The Oklahoma opinion extends the Florida rule against friending lawyers who may appear in the judge’s court to law enforcement officers, social workers, and others who regularly appear in that judge’s court in an adversarial role.[10]

A Maryland Judicial Ethics Advisory opinion states, “[a] judge must recognize that the use of social media networking sites may implicate several provisions of the Code of Judicial Conduct and, therefore, proceed cautiously.”[11] In Washington, a judge should exercise caution particularly with comments and responses “in order to make sure that the judicial officer’s impartiality is not called into question or the action does not impair the judicial officer’s ability to decide impartiality issues that come before the judicial officer.”[12] Although a judge may be “friends” on a social network site with a lawyer who appears before the judge as counsel in a case, the Board of Commissioners on Grievances and Discipline in Ohio alerts judges: “As with any other action a judge takes, a judge’s participation on a social networking site must be done carefully in order to comply with the ethical rules in the Ohio Code of Judicial Conduct.”[13]

A California judicial ethics opinion stated that judicial use of social media and networking was an inevitable trend, but that judges may not include lawyers who have a pending case before the judge in the judge’s online social networking.[14] In New York, the Committee stated “that the mere status of being a ‘Facebook friend,’ without more, is an insufficient basis to require recusal.”[15] The opinion stated that “a judge’s impartiality may reasonably be questioned or that there is an appearance of impropriety based solely on having previously ‘friended’ certain individuals who are now involved in some manner in a pending action.”[16] In discussing the propriety of a magistrate judge, South Carolina takes a more progressive view, stating that by “[a]llowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge.”[17]

If a judge allegedly uses social media in violation of the judicial code of ethics, the state ethics board may investigate complaints made against the judge and recommend a reprimand.[18] For instance, in 2009, a trial court judge in North Carolina was publicly reprimanded for having an inappropriate relationship on Facebook with an attorney and the attorney’s client in a child custody case before his court.[19] After the judge read excerpts from the party’s Facebook page, the Judicial Standards Commission determined that such practices “constitute[d] conduct prejudicial to the administration of justice that brings the judicial office into disrepute.”[20] Likewise, in 2013 Judge Henry P. Allred was “reprimanded and censured by the Court of the Judiciary of Alabama for violating the Canons of Judicial Ethics” for making comments on Facebook to other judges about a pending contempt proceeding against a lawyer.[21]

While a pervasive trend towards social media communications continues to grow, there is still uncertainty as to the ethical role judiciaries must play. If a judge’s sole use of his or her social media account is for personal communications, does this create problems for the judiciary? Likely not. What if the judge comments on rulings from other jurisdictions? Should commenting on other rulings be prohibited at large? Finding no real issue with judges using social media, one author suggested that “[w]hile judges should proceed with caution when using social networking platforms—as they should with any communication platform—they should still proceed.”[22] Others think the line is too blurry, and judges should resist using social media altogether.

Perhaps with these opinions as the forerunners, other states will follow suit-issuing guidelines for their judges. Until specific guidelines are enforced, judges should continue to remain devoted to the judiciary and follow the ethical guidelines of their state.

[1] Model Code of Judicial Conduct Canon 1 (Am. Bar. Ass’n 2011).

[2] Code of Conduct for United States Judges, Canon 1, USCourts.Gov (Mar. 20, 2014), http://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges.

[3] Ariz. Judicial Ethics Advisory Comm., Op. 14-01, (Aug. 5, 2014), https://www.azcourts.gov/LinkClick.aspx?fileticket=zNRP1_l8sck%3D&portalid=137.

[4] Id.

[5] Ethics Comm. of the Ky. Judiciary, Op. JE-119, (Jan. 20, 2010), http://courts.ky.gov/commissionscommittees/JEC/JEC_Opinions/JE_119.pdf.

[6] Id. at 5.

[7] Fla. Judicial Ethics Advisory Comm., Op. 2009-20 (Nov. 17, 2009), http://www.jud6.org/LegalCommunity/LegalPractice/opinions/jeacopinions/2009/2009-20.html.

[8] Mass. Comm. Judicial Ethics, Op. No. 2011-6, Mass.Gov, (Dec. 28, 2011), http://www.mass.gov/courts/case-legal-res/ethics-opinions/judicial-ethics-opinions/cje-opin-2011-6.html.

[9] Okla. Judicial Ethics Advisory Panel, No. 2011-3, OSCN.Net, (July 6, 2011), http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=464147.

[10] Id.

[11] Md. Judicial Ethics Comm., Op. 2012-07, (June 12, 2012), http://www.courts.state.md.us/ethics/pdfs/2012-07.pdf.

[12]Wash. Ethics Adv. Comm., Op. 09-05, Washington Courts, (Nov. 17, 2009), http://www.courts.wa.gov/programs_orgs/pos_ethics/?fa=pos_ethics.dispopin&mode=0905 (stating that “[t]he judicial officer should also consider whether readers might perceive that the judge’s impartiality is impaired by the volume and content of the comments received.”).

[13] Ohio Bd. of Comm’rs on Grievances & Disputes, Op. 2010-07, (Dec. 3, 2010) https://www.supremecourt.ohio.gov/Boards/BOC/Advisory…/2010/op_10-007.doc.

[14] Cal. Judges Ass’n Ethics Comm., Op. 66, (Nov. 23, 2010), http://www.caljudges.org/docs/Ethics%20Opinions/Op%2066%20Final.pdf.

[15] N.Y. Advisory Comm. on Judicial Ethics, Op. 13-39, (May 28, 2013), http://www.nycourts.gov/ip/judicialethics/opinions/13-39.htm.

[16] Id. (internal citations omitted).

[17] S.C. Judicial Dep’t Advisory Comm. on Standards of Judicial Conduct, Op. 17- 2009, (Oct. 2009),http://www.sccourts.org/advisoryOpinions/html/17-2009.pdf.

[18] Public Reprimand, B. Carlton Terry Jr. Dist. Court Judge, Inquiry No. 08-234, N.C. Jud. Stds. Comm. (Apr. 1, 2009), http://www.aoc.state.nc.us/www/public/coa/jsc/publicreprimands/jsc08-234.pdf.

[19] Id.

[20] See id. (where the judge participated in “ex parte communications with counsel for a party in a matter being tried before him” and further “conduct[ed] independent ex parte online research about a party presently before the Court”).

[21] In the Matter of Henry P. Allred, District Judge, Walker Cnty., Court of the Judiciary Case No. 42 (Mar. 22, 2013), http://judicial.alabama.gov/judiciary/COJ42PUBLICREP.pdf.

[22] John G. Browning, Why Can’t We Be Friends? Judges’ Use of Social Media, 68 U. Miami L. Rev. 487, 533 (2014), http://repository.law.miami.edu/cgi/viewcontent.cgi?article=1027&context=umlr.

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