Before You Accept That Friend Request or Publish That Post:, Ethical Issues for Consideration in Social Media Interaction
| Publication year | 2018 |
| Pages | 0018 |
Before you add or delete anyone from your profile, before you advise your client to revise their social media and before you hit the "post" button, there are some things to consider.
BY ANDREA JEWETT
These days, most of us are using social media in some form. But are there ethical concerns about whom we add to our list of "friends"? Are you Facebook friends with a judge, for example? Or maybe a staff member of a court in which you practice? Have you ever appeared before a judge who had a social media connection with a juror or a party to a case being handled in his or her court? What could happen if you post about a case while it is pending? Before you add or delete anyone from your profile, before you advise your client to revise their social media and before you hit the "post" button, there are some things to consider.
Does having a judge as a friend on social media create an appearance of impropriety?
It is well known that judges are required to avoid even the appearance of impropriety.[1] In 2013, the American Bar Association's Standing Committee on Ethics and Professional Responsibility's Formal Opinion 462 forbade judges from forming relationships with individuals or groups that could give the impression that the individual or group is in a position to influence the judge's opinions.[2] Furthermore, under Model Code of Judicial Conduct Rule 2.4(C), "[a] judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge."[3] Also, Rule 2.11 states that a judge "shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned," including where the judge "has a personal bias or prejudice concerning . . . a party's lawyer."[4]
A 2012 survey by the Conference of Court Public Information Officers found that more than 46 percent of judges were on social media at that time, while almost the same percentage believed that the use of social media sites like Facebook compromised their judicial ethics.[5] It is safe to assume that, six years later, the number of judges on social media has increased. But does the use of social media by the judiciary compromise their ethics?
Staying connected with constituents is important for the judiciary, especially because most judges are elected. "[J]udges do not ˜forfeit [their] right to associate with their friends and acquaintances nor [are they] condemned to live the life of a hermit. In fact, such a regime would . . . lessen the effectiveness of the judicial officer.'"[6] Use of social media is one way for judges to stay actively involved in their communities. In fact, the American Bar Association has stated that all types of social interactions, including the use of social media sites, can help judges avoid appearing "isolated or out of touch" with their constituents.[7] Indeed, "the proper performance of judicial duties does not require a judge to withdraw from society and live an ascetic, antiseptic and socially sterile life."[8]
However, some states take a strict approach when it comes to the judicial use of social media. In those states, such as Oklahoma and Massachusetts, judges are forbidden from connecting with an attorney on social media if the attorney might appear in their courtroom. Whether this ban applies only to an attorney-judge connection varies from state to state. In some states, the ban applies to anyone who could appear in that judge's courtroom in an adversarial role, including social workers and law enforcement officers.[9]
The Massachusetts Committee on Judicial Ethics has established a "bright-line test" requiring judges to recuse themselves in any case in which an attorney they are "friends" with on social media appears.[10] In Arizona, a judge cannot make a recommendation for an attorney on LinkedIn if the attorney "regularly appears" in his or her court.[11] In Oklahoma, judges cannot "friend" or "link" attorneys, social workers, law enforcement officers or anyone else who could appear in their courtroom "in an adversarial role."[12]
Several other states, including California, Utah and Florida, take a more moderate approach to judicial social media interaction.[13] Although California does not necessarily disallow social media relationships between judges and individuals who have cases pending in their courts, the California Judges Association Judicial Ethics Committee has advised that "it is important to stress that a judge's interaction with attorneys who may appear before the judge will very often create appearances that would violate the Canons [of Judicial Ethics]."[14] The Committee listed several factors to consider, such as: the nature of the social media site; how many "friends" are listed on the site"”the inclusion of more friends making it less likely that a connection would seem improper; and the regularity with which a particular attorney appears in the judge's court.[15]
In Utah, an ethics advisory committee opinion stated, "[disqualification is not automatically required simply because a judge and a lawyer are "˜friends' on Facebook. Being a "˜friend' of a judge on Facebook does not automatically create the appearance that the lawyer is in a special position to influence the judge."[16] The opinion further indicated that additional inquiry would be necessary before recusal would be warranted.[17]
Florida initially followed a strict approach to the judicial use of social media, and in one case, the court found it unethical for a judge to befriend an attorney on social media if there was even a chance that the attorney could appear in that judge's court.[18] Specifically, in Domville v. State, Florida's Fourth District Court of Appeal held that a judge and a prosecutor having a social media friendship created a "well-founded fear" that the defendant would not receive a fair and impartial tri-al.[19] However, approximately two years later, in Chace v. Loisel, Florida's Fifth District Court of Appeal opined that Domville was overly broad in requiring a judge to be disqualified from hearing a case when he was only a known acquaintance of the prosecutor.[20] The court stated that, in more rural areas, the standard applied in Domville created an insurmountable obstacle because everyone in the legal community would inevitably have some sort of relationship with one another.[21] Still, the court followed Domville, as it was "binding upon the trial judge" in Chace.[22]
The judge at issue in Chace sent a friend request to a litigant in a divorce case. The litigant refused to respond to the request, based on advice from her attorney. As a result, the litigant felt that the judge retaliated against her when the judge entered a judgment saddling the litigant with the majority of marital debt and awarding her spouse a "disproportionately excessive alimony award."[23]
From an outside perspective, a friend request sent by a judge to a known litigant seems questionable, at best. As the Chace court stated, the judge's request left the litigant with no proper choice to make; she could either accept the request, opening the door to improper communications, or deny or ignore it, taking the chance of offending the judge.[24]
Most of the states that have addressed the use of social media by the judiciary have taken a more liberal approach. These states include Kentucky, New York, Ohio and South Carolina, where an online friendship with a judge is not necessarily deemed to be inappropriate because it does not automatically indicate an elevated degree of association.[25] According to authorities in these states, there is no impropriety in a judge having social media connections with anyone who may practice in his or her court, as long as the judge does not indicate that such a connection would create an ability to exert any special influence over the judge's actions or opinions.[26]
Thus far, Georgia appears to fall...
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