Order in the court of social media

Hinshaw & Culbertson

Earlier this year, the American Bar Association issued a new ethics opinion addressing the use of social networking media by judges.

Formal Opinion 462 recognizes that judges may participate in social networking, but participation is limited by provisions of the Code of Judicial Conduct.

The ABA opinion notes that judges accept a duty to "respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system," citing the preamble to the ABA Model Code of Judicial Conduct, which is virtually identical in this respect to the Illinois Code of Judicial Conduct.

The opinion refers to the duty under Rule 1.2 of the model code to act in a manner "that promotes public confidence in the independence, integrity and impartiality of the judiciary" and to "avoid impropriety and the appearance of impropriety." A similar requirement is contained in Illinois Code Rule 62 and Canon 2.

The opinion points out the risk inherent in public media that a judge's comments may be transmitted or circulated to persons unknown to the judge without the judge's knowledge.

Some comments that might be appropriate in a private conversation might compromise the integrity of the judiciary or undermine public confidence in it if made public, since such comments have long, or even permanent "digital lives" and because the comments are "devoid of in-person or vocal cues, messages may be taken out of context, misinterpreted or relayed incorrectly."

Various sections of the model code are noted in the opinion as possible pitfalls for judges who use social media.

For example, conveying the impression that the judge's relationship with a person or organization enables them to influence the judge could violate Model Rule 2.4(C) (Illinois Rule 62.B.); communications that could be considered ex parte could violate Model Rule 2.9(A)(Illinois Rule 63.A.4.); commenting about a pending or impending matter could violate Model Rule 2.10 (Illinois Rule 63.A.6.); and offering legal advice could violate Model Rule 3.10 (Illinois Rule 65.F.).

The issue of whether a judge may "friend" lawyers or others who may appear before the judge is discussed in the opinion, which notes that various state ethics opinions have expressed a range of views about this question, from outright prohibition to permission with appropriate cautions.

The opinion cautions that "context is significant" in determining whether disclosure of the relationship by the judge is necessary, as a social media relationship "does not, in and of itself, indicate the degree or intensity of a judge's relationship with a person."

The opinion comments that if the judge has "current and frequent" social network communications with a lawyer or litigant appearing before the judge, the judge should analyze the situation in the same manner in which the judge would analyze his or her personal and professional relationships that do not involve a social network.

The judge should "disclose on the record information the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification," the opinion says.

Illinois Rule 63.C. requires a judge to disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned for any of a number of enumerated reasons.

The ABA opinion suggests that judges have no duty to search all of the judge's social media connections to determine if there is a relationship that must be disclosed when the judge does not have specific knowledge of such a connection.

The use of social media in judicial election campaigns is also addressed by the opinion, which states that websites and social media may be used by campaign committees to promote the candidacy of a judicial candidate and to obtain support for the campaign "so long as these sites are not started or maintained by the judge or judicial candidate personally." Illinois Rules 67.B. prohibits a candidate from personally soliciting or accepting campaign contributions.

Illinois Rule 67.A.1.b. prohibits a judge from publicly endorsing or opposing another candidate for public office.

The opinion cautions judges that clicking on "like" on a political campaign website could be perceived as a violation of this prohibition, but concludes that it is unlikely that another person's "liking" of the judge through a campaign website would create an ethical issue if the campaign is not required to accept or reject a request.

The opinion suggests that to avoid making a public statement about another candidate, any such statement made by a judge in the public media be done only by managing privacy settings to restrict access to the judge's page containing the comments or blocking connections to that page.

Opinion 462 does not prohibit or discourage judges from using public social media, but does caution them to restrict their use to only what is permitted by the rules.