Friending, Following, and Liking: Social Media and the Courts, 0719 COBJ, Vol. 48, No. 7 Pg. 9

• Author: BY HON. RICHARD L. GABRIEL AND NINA VARSAVA
• Position: Vol. 48, 7 [Page 9]

48 Colo.Law. 9

Friending, Following, and Liking: Social Media and the Courts

Vol. 48, No. 7 [Page 9]

Colorado Lawyer

July, 2019

JUDGES' CORNER

BY HON. RICHARD L. GABRIEL AND NINA VARSAVA

Social media" encompasses an increasingly broad array of online platforms and activities, including Facebook, Twitter, Linkedln, SnapChat, chat rooms, blogging, online surveys, YouTube, and podcasting. Social media use is ubiquitous, and many judges participate in social networks such as Facebook. But judicial participation in social media comes with significant and multifarious ethical risks. This is because of the nature of web-based activities. For example, even when one intends one's online comments to be private, others can easily make them public. In addition, online comments are readily taken out of context. And they are difficult if not impossible to erase permanently.

Many of the ethical issues raised by judicial participation in social media are relatively settled, and much has already been written on such issues.¹ For one, judges are prohibited from commenting on pending cases, which naturally includes comments in the social media sphere.^[2]Moreover, no matter the medium, judges are not permitted to practice law,^[3]publicly endorse political candidates,^[4]or engage in ex parte communications.^[5]The application of these ethics rules in the realm of social media activity is relatively straightforward. For example, a Georgia state court judge was reprimanded and suspended for his ex parte communications over Facebook with a woman who had contacted him about a pending criminal trial that involved her defendant brother.⁶ Instead of ignoring her inquiry or informing her that he was ethically prohibited from responding, the judge engaged in an exchange about the matter.^[7]

Social media activities raise a number of judicial ethics questions, however, to which existing ethics rules do not provide easy answers. This article takes up some of these more difficult ethical questions, with a focus on Facebook, which is perhaps the most common social media platform. The article begins by addressing the extent to which judges may interact on social media with local attorneys and others who will potentially appear before them in court. Next, it addresses whether judges who participate in social media communications should identify themselves as judges. Finally, it considers the extent to which judges must monitor postings on their social media accounts. These are live questions in the realm of judicial ethics, with compelling arguments on both sides. In light of the ethical restrictions governing judicial officers, however, the authors do not purport to give answers here. Rather, this article endeavors to survey the range of views on each issue to stimulate further discussion.

To Friend or Not to Friend

Should judges refrain from making social media connections with attorneys who are likely to appear before them in court? And should judges unfriend or unfollow attorneys when those attorneys become involved in proceedings before them? State ethics committees have taken differing views on the ethics of judge-attorney social media relationships.

Many state ethics committees approve of judge-attorney Facebook "friendships." Some of these committees have pointed out that a Facebook "friend" is a term of art.⁸ A Facebook user is not truly "friends," as that term is traditionally understood, with everyone identified as such on his or her Facebook account. Thus, the New Mexico Advisory Committee on the Code of Judicial Conduct has observed, "Given the ubiquitous use of social networking, the mere fact that a judge and an attorney who may appear before the judge are linked in some manner on a social networking site does not in itself give the impression that the attorney has the ability to influence the judge."⁹ The Florida Supreme Court has similarly opined that "[t]he establishment of a Facebook 'friendship' does not objectively signal the existence of the affection and esteem involved in a traditional 'friendship.'"¹⁰

Other states' advisory committees have approached social media relationships and interactions the same as offline relationships and interactions.¹¹ The New York Advisory Committee on Judicial Ethics, for example, has pointed out that judges "generally may socialize in person with attorneys who appear in the judge's court" and that a blanket prohibition on online social interactions is, accordingly, unwarranted.^[12]After all, the profession accepts that judges and local attorneys are going to interact in a friendly way outside of judicial proceedings.^[13] Thus, whether these interactions are in-person or online is ethically immaterial.^[14]

Utah's Judicial Ethics Advisory Committee has taken a perhaps even broader view. That committee has authorized a judge's practice of "liking" and "following" others. Specifically, the Utah committee has opined that judges may "like" law firms and attorneys on Facebook without ethical problem because, in the committee's view, "'liking' something or someone does not convey much about the judge's thoughts on a topic."^[15]The committee added, however, that a judge-attorney Facebook friendship "is one factor to consider when deciding whether recusal is necessary."¹⁶

The Utah committee further authorized judges to "follow" attorneys on Twitter.^[17]In so ruling, the committee explained that the practice of following in and of itself does not pose ethical problems. If, however, an attorney attempted to engage in ex parte communications over Twitter, that would be problematic, and the judge would have to stop following the attorney.¹⁸

The California Committee on Judicial Ethics has taken an approach similar to that of the Utah committee. The California committee has stated, for example, that" [t]he same rules that govern a judge's ability to socialize and communicate in person, on paper and over the telephone apply to the Internet."¹⁹ In an opinion about online social networking, the committee observed:

[Extra judicial activities are governed by Canon 4A which states: "A judge shall conduct all of the judge's extra judicial activities so that they do not (1) cast reasonable doubt on the judge's capacity to act impartially; (2) demean the judicial office; or (3) interfere with the proper performance of judicial duties."²⁰

In so ruling, the committee recognized that parties might find it troubling if opposing counsel and the presiding judge were connected on social media sites. To address this concern, the committee laid out four factors that should be considered in determining whether a social media relationship between a judge and an attorney creates the perception of impropriety: (1) the nature of the social media platform at issue; (2) the number of friends the judge has on that platform; (3) the method the judge uses to decide whom to include among his or her friends on the platform; and (4) how often the attorney at issue appears before the judge.²¹ The committee also set forth a black-line rule: if a judge is Facebook friends with an attorney who has a matter pending before him or her, then the judge must "unfriend" that attorney.²²

Other states—for example, Florida, Massachusetts, and Oklahoma—have taken a far more restrictive view than the above-discussed jurisdictions regarding judges' interactions with attorneys on social media. The justifications for limiting such social media connections largely revolve around concerns over the appearance of impropriety and undue influence.

The Florida Judicial Ethics Advisory Committee has determined that judges must not "friend" attorneys who are likely to litigate cases before them because this kind of judge-attorney interaction or apparent interaction may convey to parties or the public that certain attorneys have undue influence on judicial decision-making.²³ In the wake of a Florida advisory opinion on social media use, some judges closed their Facebook accounts while others removed many of their "friends."²⁴

The Massachusetts Committee on Judicial Ethics has likewise interpreted its Code of Judicial Conduct to "prohibit a judge from being Facebook friends with any attorney who is reasonably likely to appear before that judge."²⁵ The committee went further, however, and ruled that judges must affirmatively review their list of "Facebook friends and 'unfriend' attorneys who are reasonably likely to appear before [them]."²⁶ And if an attorney appearing before a judge is a former Facebook friend and the judge is aware of that fact, then "the judge should disclose the existence and nature of that past Facebook friendship even if the judge believes there is no basis for disqualification."²⁷

Like Florida and Massachusetts, Oklahoma has taken a strict position against Facebook friendships between a judge and attorneys who are likely to appear before the judge in court.²⁸ The Oklahoma Judicial Ethics Advisory Panel reasoned that the "public trust in the impartiality and fairness of the...