November 29, 2017
An ethical conundrum exists for the bench and bar connecting through social media, let alone communicating on those platforms. The ethical waters are still just as muddy as the various states’ opinions across the nation. Many judges have made the decision to remain off of social media altogether – a “better safe than sorry approach.” But as social and technological changes progress, is such a disconnect realistic? Do the ethical rules for lawyers and judges already sufficiently address these risks of impartiality, ex parte communication, and other potential imbalances to justice?
Judges themselves don’t seem quite sure. In a 2014 survey of 252 judges, 44.5 percent agreed that judges can use Facebook without ethics concerns, a drop of more than 5 percent from a 2013 survey. Twenty-seven percent said they disagreed with the statement and more than 28 percent were neutral. (Conference of Court Public Information Officers New Media Survey, 2014.)
What is clear is that legal professionals must exercise additional caution when it comes to social media use, if they are using social media at all.
Focus on The Public’s Perception
Under Illinois Supreme Court Rule 63(A)(5) (Code of Judicial Conduct, Canon 3), "[a] judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding …” The purpose of this rule, with limited exceptions, is to ensure that parties and counsel to matters may present their case free of procedural or tactical advantage, including the mere perception of such.
Likewise, Rule 62(A) (Canon 2) reiterates this point in a broader sense near the start of the Code of Judicial Conduct, “[a] A judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Its following Committee Commentary emphasizes that:
A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on his or her conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
Additionally, with such social media connections and “friendships” must come great care when posting, tweeting, commenting, etc. As Rule 63(A)(7) (Canon 3) states, “[a] judge should abstain from public comment about a pending or impending proceeding in any court, and should require similar abstention on the part of court personnel subject to the judge’s direction and control.”
Per Se Violation?
Let’s look at the wide-ranging approaches of jurisdictions as to having an online connection between judges and lawyers, especially those appearing before the bench. States remain split over taking “friendships” into the social media context. Nonetheless, the concerns over ex parte communications and the appearance of impropriety make it a very delicate arena to control private and public interactions.
In general, there are two categories of standards for lawyer-judge social media connections: (1) Allowed, with caution and compliance with the rules; and (2) Not allowed or greatly restricted.
The following jurisdictions have allowed judges to participate in social media networking to some degree, while complying with their Code of Judicial Conduct and other ethical standards:
In Ohio, the Supreme Court’s Board of Commissioners on Grievances and Discipline wrote the following in its Opinion 2010-7, “A judge may be a ‘friend’ on a social networking site with a lawyer who appears as counsel in a case before the judge. As with any other action a judge takes, a judge’s participation on a social networking site must be done carefully in order to comply with the ethical rules in the Ohio Code of Judicial Conduct.” The Opinion goes on to expressly mention the Canon Rules covered above, as well as the need for a judge to disqualify himself/herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice (see Rule 2.11). This explanation generally summarizes the “qualified yes” answer followed by these states.
In contrast, some jurisdictions restrict the judiciary from participating in social media networking to a greater degree:
In Florida, the Supreme Court’s Judicial Ethics Advisory Committee determined that judges could not be social media friends with attorneys who appear before them. The Committee specifically noted that “social networking sites are broadly available for viewing on the internet. Thus, it is clear that many persons viewing the site will not be judges and will not be familiar with [the ethical rules] which seek to assure the judge's impartiality.” Thus, the opinion goes on, the question becomes how might the connection be viewed as conveying an impression that someone is in a special position to influence the judge. And not only does disclosure of such a connection not cure this issue, it further brings it to light.
In a real-world example, this 2009 Florida Opinion was found to be “instructive” to a Florida Appellate Court which held that a trial judge presiding over a criminal case was required to recuse himself because the judge was Facebook friends with the prosecutor. See Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012). The opinion points out that, “[a] mere ‘subjective fear[ ]’ of bias will not be legally sufficient; rather, the fear must be objectively reasonable,” citing Fischer v. Knuck, 497 So. 2d 240, 242 (Fla. 1986). The unanimous court agreed that the criminal defendant’s alleged facts in his affidavit would create a well-founded fear in a reasonably prudent person of not receiving a fair and impartial trial due to the impression that the prosecutor’s Facebook friendship put that prosecutor in a special position to influence the judge.
Ever Changing Landscape
The social media platforms of yesterday are not those of today, and certainly not tomorrow. New ways to connect with your friends, family, colleagues, neighbors, leaders, and influencers will evolve beyond today’s imagination. As demand for these connections cultivates new networks, new questions will come of what we must do and what we should do.
As is the case with other technological changes, social media in and of itself does not create problems for lawyers and judges. The changes simply create new circumstances under which the legal profession is obligated to take due care. This duty is amplified by the very public, very accessible, and very permanent nature of the social media world. Yet, now and in the future, the same principles that apply in other public settings will apply in the virtual world.
As Professionalism Counsel at the Illinois Supreme Court Commission on Professionalism,
Mark C. Palmer promotes civility and delivers statewide professionalism programming, including its mentoring program, across Illinois to lawyers and law students with a dedication to justice and the rule of law.