Conduct involving online activity and social media raises the potential for ethical concerns under nearly every canon. Effective October 10, 2018, the Supreme Court amended the California Code of Judicial Ethics to include Advisory Committee commentary following canons 2 and 2A that specifically addresses posting material online and participating in online social networking sites. The following authorities and resources provide guidance on proper judicial conduct when engaging in any online activity, including social media:
Advisory Committee commentary following canons 2 and 2A:
“A judge must exercise caution when engaging in any type of electronic communication, including communication by text or email, or when participating in online social networking sites or otherwise posting material on the Internet, given the accessibility, widespread transmission, and permanence of electronic communications and material posted on the Internet. The same canons that govern a judge’s ability to socialize and communicate in person, on paper, or over the telephone apply to electronic communications, including use of the Internet and social networking sites. These canons include, but are not limited to, Canons 2B(2) (lending the prestige of judicial office), 3B(7) (ex parte communications), 3B(9) (public comment about pending* or impending proceedings*), 3E(2) (disclosure of information relevant to disqualification), and 4A (conducting extrajudicial activities to avoid casting doubt on the judge’s capacity to act impartially,* demeaning the judicial office, or frequent disqualification).”
The Commission on Judicial Performance censured a former commissioner for posts made to a public Facebook account that reflected bias against groups, took positions on controversial issues, opposed and praised presidential candidates, and disparaged the President and federal justice system.
The Commission on Judicial Performance publicly admonished a judge for remaining Facebook friends with attorneys that appeared before the judge and failing to disclose the friendships. The Commission on Judicial Performance noted California Judges Association Opinion 66, which advises that a judge should not maintain an online social network relationship with an attorney who has a matter pending before the judge. The judge also posted a statement about a candidate for judicial office on Facebook with knowing or reckless disregard for the truth of the statement.
Advises that a judge may serve as a signatory to a testimonial letter recommending a national bar association program dedicated to the improvement of the law, the legal system, and the administrative of justice so long as the letter is not used essentially as a fundraising mechanism by the national bar association. The Oral Advice Summary also advises that if the letter is posted on the national bar association’s website, the letter should be made part of the website’s informational material and may not be posted on the area of the website that is devoted to solicitation and funding.
The California Judges Association opinion provides an overview of online social networking, advises that a judge may participate in online social networking so long as the judge complies with the code, and lists some of the ethical concerns that arise when a judge participates in online social networks. The opinion advises that a judge is not prohibited from engaging in online social networking with lawyers who may appear before the judge, but should consider whether there is an impression that the attorney is in a special position to influence the judge and casts doubt on the judge’s ability to be impartial. The opinion provides examples of when a judge would be permitted or prohibited from engaging with an attorney who may appear before the judge and advises that a judge should not engage in online social networking with an attorney who has a case pending before the judge, which may require unfriending or otherwise ending the online relationship.
Providing analysis under the ABA Model Code of Judicial Conduct, the opinion advises that judges may participate in electronic social networking using electronic social media but cautions that all online conduct is governed by the code of judicial ethics and other applicable authorities within the judge’s jurisdiction. The opinion advises that judges must assume that anything posted online may be widely disseminated, is likely permanent, and can easily be taken out of context or misinterpreted. The opinion also provides advice regarding online interactions and relationships and the use of electronic social media in election campaigns.
The first part of this article provides a general overview of the characteristics of and various types of social media. It analyzes and summarizes key judicial ethics issues related to the use of social media in the context of a judge’s judicial duties, including online relationships or friendships with attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases. The article cites applicable sections of states’ codes of judicial ethics, opinions from judicial ethics advisory bodies, and relevant case law throughout the U.S.
The second part of this article covers restrictions on judges’ off-bench social media conduct, including commenting on legal and non-legal issues, providing legal advice, disclosing non-public information, charitable or political activities, and campaign conduct. The article also cites relevant codes of judicial ethics, judicial ethics advisory opinions, and relevant case law.