Can a judge use Facebook and other social media, and can a judge be friends online with lawyers who appear before the judge?

Plain-English summary

The opinion addresses whether a judge may take part in electronic social media (ESM), which it defines as internet-based networking sites that require a user to affirmatively join and accept or reject connections with particular people. The Committee concludes that a judge may participate, but treats ESM as just another form of social contact subject to the Model Code of Judicial Conduct.

The opinion stresses that ESM content can be transmitted beyond the judge's intended circle and can persist indefinitely, so a judge must assume posts will not stay private. It maps several Model Code provisions onto ESM use: Rule 1.2 (acting in a manner that promotes public confidence in the judiciary), Rule 2.4(C) (not conveying that others can influence the judge), Rule 2.9(A) and 2.9(C) (avoiding ex parte communications and not using ESM to investigate a matter before the judge), Rule 2.10 (not commenting on pending or impending matters), and Rule 3.10 (not giving legal advice).

On disclosure and disqualification, the opinion says that because ESM connections are open and casual, "a judge will seldom have an affirmative duty to disclose an ESM connection," but a connection involving current and frequent communication must be considered carefully. When the judge knows a party, witness, or lawyer with an ESM connection appears before the judge, the judge must analyze whether that connection rises to a social relationship requiring disclosure or recusal under Rule 2.11, just as the judge would for any offline relationship. The opinion notes that a simple ESM designation "does not, in and of itself, indicate the degree or intensity of a judge's relationship with a person."

On campaigns, the opinion explains that ESM may be used as a campaign tool through an authorized committee, but a judge remains barred from personally soliciting contributions and from publicly endorsing or opposing candidates for public office. It cautions that clicking "like" on another candidate's political page could be perceived as a prohibited public endorsement under Rule 4.1(A)(3).

In practice

Under this opinion, a judge's participation in electronic social media is permitted but is measured against the same Model Code standards, as they stood at the time of the opinion, that apply to any social relationship. The opinion holds that the judge must avoid ex parte communications and improper investigation of matters under Rule 2.9, must not comment on pending or impending matters under Rule 2.10, and must evaluate each known ESM connection with a lawyer or party for possible disclosure or disqualification under Rule 2.11. The opinion adds that a judge has no duty to search all of the judge's ESM connections absent specific knowledge of a problematic relationship.

Common questions

Q: Can a judge have a Facebook account?

A: Yes. The opinion concludes that a judge may participate in electronic social media, provided the judge complies with the Model Code of Judicial Conduct just as the judge would with any other social contact.

Q: Can a judge be online "friends" with a lawyer who appears before the judge?

A: The opinion does not bar it outright. It says a simple ESM designation alone does not show the intensity of a relationship, but when the judge knows a connected lawyer or party is before the judge, the judge must evaluate whether the connection requires disclosure or disqualification under Rule 2.11.

Q: Does a judge have to disclose every social-media connection?

A: No. The opinion states that a judge will seldom have an affirmative duty to disclose an ESM connection and is not required to search all connections, but must carefully consider connections involving current and frequent communication.

Q: Can a judge use social media in an election campaign?

A: Per the opinion, campaign committees may use ESM to support a judicial candidate, but the judge may not personally solicit contributions and may not publicly endorse or oppose other candidates; the opinion warns that clicking "like" on a candidate's page could be seen as a prohibited endorsement.

Background and rules framework

The opinion interprets the ABA Model Code of Judicial Conduct as amended through August 2012, not the Model Rules of Professional Conduct. The central provisions are Canon 1 and Rule 1.2 (promoting confidence in the judiciary and avoiding the appearance of impropriety), Rule 2.4(C), Rule 2.9 (ex parte communications and independent investigation), Rule 2.10 (judicial statements on pending and impending cases), Rule 2.11 (disqualification), Rule 3.10 (practice of law), and Canon 4 / Rule 4.1 (political and campaign activity). The opinion notes that controlling authority is the version of these rules adopted in each jurisdiction.

Citations and references

Rules of Professional Conduct:

• ABA Model Code of Judicial Conduct Rule 1.2 (confidence in the judiciary; appearance of impropriety)
• Model Code Rule 2.4(C), Rule 2.9 (ex parte; independent investigation), Rule 2.10, Rule 2.11 (disqualification)
• Model Code Rule 3.10 (practice of law); Rule 4.1 (political and campaign activity)

Other opinions cited:

• New York Jud. Eth. Adv. Op. 08-176 (2009): discretion in judicial use of social networking
• Ohio Bd. of Comm'rs on Grievances and Discipline Op. 2010-7 (2010): judge-lawyer ESM relationships
• California Judges Ass'n Judicial Ethics Comm. Op. 66 (2010): disclosure arising from online connections

See also

• NY State Bar Op. 541: Judge's Appearance of Integrity and Impartiality
• NY State Bar Op. 491: Judge-Elect Political Activity
• ABA Formal Op. 488: Judges' Social or Close Personal Relationships

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: formal_opinion_462.pdf