By: Tyler Hampy
Although you may think that Facebook “friends” aren’t really the same thing as real-life friends, the ethical guidelines for lawyers and judges do not make such a distinction. Even though different jurisdictions have taken slightly different approaches with respect to judges using online social networks, the trend is all the same… there can be no appearance of impropriety!
The modern view is that judges may participate in the online social networking community; however, jurisdictions vary as to whether judges’ online social networks may include lawyers that may appear before the judge.
In some jurisdictions, including California, a judge’s online social network may not include lawyers who have cases pending before him/her. If such a situation arises, the judge is required to disclose the online relationship and “unfriend” the attorney. Disclosure is necessary because the appearance of impropriety may arise as a result of the unique nature of online social networks where the connection is obvious, but the nature of the connection may not be obvious. Additionally, the judge must “unfriend” the attorney to avoid any appearance that the attorney holds a special position of influence.
In November 2009, the Florida Supreme Court stated that while a judge may post comments and pictures on his/her social networking page (assuming the material posted does not violate the Code of Judicial Conduct), a judge may not “friend” lawyers who may appear before him or her. The Supreme Court went on to say that when a judge lists lawyers that may appear before him/her as social networking “friends,” that display may convey the impression that these lawyers “are in a special position to influence the judge.” The concern is over the appearance of impropriety in a public forum rather than the actual influence or impropriety.
The rationale for the modern trend is that judges should not be isolated from their communities, which in today’s world includes online communities. However, a judge’s ethical duties remain the same regardless of whether they are interacting online or in person. A judge should conduct his/her online activities just as he/she would conduct himself/herself in person. Opinions coming from jurisdictions, such as New York, South Carolina, and Kentucky, state that a judge shall conduct his or her extrajudicial activities in a fashion that does not cast doubt on the judge’s capacity to act impartially, demean the judicial office, or interfere with the proper performance of judicial duties. A judge’s participation in online social networking does not violate any of these provisions any more than offline social networking could.
Judges can find themselves in some trouble if the social networking guidelines are not followed. For example, a North Carolina judge was reprimanded for “friending” a lawyer in a pending case, accessing the opposing party’s website, and reading messages relating to the litigation.
In conclusion, although there are some differences among jurisdictions, the consensus is that as long as a judge complies with the applicable rules governing judicial conduct, he/she can participate in online social networking, assuming the judge has an acceptable level of competence with the social network and he/she avoids any appearance of impropriety.