Legal advice on social media

Rule 3.10 provides that a full-time judge “shall not practice law.”  Thus, although users may ask for legal advice via social media when they learn another user is a judge, the judge cannot respond.  Accord Connecticut Informal Opinion 2013-6; Kentucky Advisory Opinion JE-119 (2010); New York Advisory Opinion 2008-176; Ohio Advisory Opinion 2010-7; ABA Formal Opinion 462 (2013).  See also In re Bass, Public Reprimand (Georgia Judicial Qualifications Commission March 18, 2013) (sanction of judge for private Facebook chat advising a woman who contacted him about how her brother should get his DUI matter into his court where he would “handle it,” in addition to other misconduct).

Further, advisory committees have broadly interpreted the prohibition to apply, not just to answering specific questions from other users, but to general social media posts that could be construed as legal advice.

For example, the West Virginia advisory committee stated that a judge could not post videos in which she answers questions about family law on her campaign web-site because she would be engaging in the practice of law and “potentially” in ex parte communications.  West Virginia Advisory Opinion (February 6, 2016).  In addition, although the committee stated that a judicial candidate (to whom the code applied) could post videos about general procedures and statutes on child support calculations on her Facebook page, it emphasized she must ensure “the explanations do not cross the line into legal advice or discussions concerning pending or impending matters.”  The committee also warned that such videos were likely to generate follow-up questions that a judicial candidate could not answer.

Similarly, the Utah committee advised that a judge may post about legal topics on social media — unless the comments could be considered legal advice.  Utah Informal Advisory Opinion 2012-1.  The Massachusetts committee also stated that, although a judge may post “purely educational” tweets advising “trial lawyers on trial practice (e.g., preparing clients to testify, delivering closing arguments, conducting cross-examination),” the judge must “offer only practice tips and not legal advice.”  Massachusetts Letter Opinion 2016-1.  The Connecticut advisory committee approved a judge’s participation as an expert on a non-profit, non-partisan organization’s electronic “answer board” that provides journalists with information on legal and constitutional topics, but warned the judge to keep her answers factual and instructive without providing legal advice.  Connecticut Advisory Opinion 2011-14.

Based on findings of the Judicial Discipline and Disability Commission, the Arkansas Supreme Court removed a judge from office for explaining how to beat a DWI charge on a public on-line fan-site, in addition to other misconduct.  Judicial Discipline and Disability Commission v. Maggio, 440 S.W.3d 333 (Arkansas 2014).  Under the subject “to blow or not to blow,” the judge had posted:

You have the right to remain silent . . . so don’t say a word.  Don’t open your mouth “smell of intoxicants” that is the probable cause for FST.  Just hand the LEO your license, insurance and registration.  Everything they need to write you the ticket (reason for the stop) is on those papers.

Never say a word.  If ordered out of car.  Get out and lean against car.  Don’t move.  Yes very possible you will be cuffed and stuffed.  But at that time all they have is the violation for the stop.

Refuse the BAC test.  Yes another ticket but better than the alternative.  In the end the less evidence the best.

That being said 99% of folks on the side of the road all think hey I can “talk my way out.”

Of course, the single best advice is don’t drink and driver ever.  LEO don’t play.

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This post will be part of the summer issue of the Judicial Conduct Report, which is the second and final part of an article analyzing the advisory opinions and discipline decisions on social media and judicial ethics.  Part 1, the spring issue, described the advice judicial ethics advisory committees have given judges regarding social media in general and the rules related to judicial duties in particular.  Part 2, to be published in August, will cover off-bench conduct:  abuse of the prestige of office, disclosing non-public information, providing legal advice, charitable activities, including fund-raising, commenting on issues, political activity, and campaign conduct.  You can sign up to receive notice when a new issue is available.

Throwback Thursday 

5 years ago this month:

  • Based on a stipulated resolution, the Arizona Supreme Court publicly censured a judge for taking additional testimony from a plaintiff in a harassment case after disconnecting from the defendant, who was appearing by telephone; failing to cooperate with requests from the Commission on Judicial Conduct; and making misrepresentations to the Commission. Inquiry Concerning Parker, Order (Arizona Supreme Court June 4, 2012).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge who, when a defendant said he had hit a driver who had honked at him and flipped him off, had responded: “I know I shouldn’t say it, but I personally did not disagree with what you did.”  Lester, Order (Arizona Commission on Judicial Conduct June 1, 2012).
  • Accepting the findings and recommendation of the Judicial Qualifications Commission based on a stipulation, the Florida Supreme Court publicly reprimanded a judge for being habitually tardy for hearings, first appearances, and trials and making a statement that introduced his religious beliefs into decision-making. Inquiry Concerning Singbush, 93 So. 3d 188 (Florida 2012).
  • Granting an application filed by the Commission on Judicial Qualifications, the Iowa Supreme Court publicly reprimanded a judge for operating a vehicle while intoxicated. In the Matter of Block, 816 N.W.2d 362 (Iowa 2012).
  • Based on the judge’s resignation and withdrawal of her request for review, the New York Court of Appeals removed a judge in accordance with the findings of the State Commission on Judicial Conduct that she (1) improperly intervened in the disposition of a speeding ticket issued to another judge’s wife and (2) accepted special consideration for a speeding ticket that had been issued to herself. The Court’s order does not describe the judge’s conduct; this summary is based on the Commission determination.  In the Matter of Schilling, Order (New York Court of Appeals June 19, 2012).
  • The New York Court of Appeals removed a judge from office for presiding over 8 matters involving his paramour’s relatives without disclosing the conflict; engaging in ex parte communications with his paramour and her relatives concerning 4 of the matters; and making dispositions in 5 of the matters that conveyed an appearance of favoritism. In the Matter of Young, 974 N.E.2d 658 (New York 2012).
  • Pursuant to the judge’s agreement with the investigative panel, the Tennessee Court of the Judiciary publicly reprimanded a judge for conducting a hearing and setting release conditions for a defendant accused of burglarizing his office. Re Randolph, Letter of reprimand (Tennessee Court of the Judiciary June 15, 2012).
  • Pursuant to the judge’s agreement with the investigative panel, the Tennessee Court of the Judiciary publicly reprimanded a judge for telling a group of defendants that he wished he could “pull a trap door” and send them “straight to hell right now.” Re Houston (Tennessee Court of the Judiciary June 25, 2012).

Judicial ethics and marijuana

29 or so states have decriminalized and/or legalized medical and/or recreational marijuana use since 1973.  Whatever effect that may have had on judicial caseloads, that change should not have affected judges’ personal habits.  As the Colorado advisory committee explained, even in a state that has decriminalized the use and possession of medicinal and small amounts of recreational marijuana, a judge who uses marijuana in private still violates the code of judicial conduct because federal law still makes the possession and use of marijuana for any purpose a crime.  Colorado Advisory Opinion 2014-1.

Further, the California judicial ethics committee recently advised that, because of federal laws, a judicial officer should not have an interest in an enterprise involved in the sale or manufacture of medical or recreational marijuana.  California Advisory Opinion 2017-10The committee explained that restriction precluded a personal financial investment or private equity fund investment in such an enterprise, ownership of shares in a corporation that invests in marijuana, or an interest in property that is leased for marijuana growth or distribution and included interests owned by a spouse or registered domestic partnerThe Washington advisory committee stated that a judge may not permit a court employee to own a medical marijuana business, even if the business fully complied with state laws and regulations, because federal law prohibits the possession, sale, and distribution of medical marijuana.  Washington Advisory Opinion 2015-2 

Judges have been disciplined for using marijuana although the cases arose when use was still a crime in the state.

The Michigan Supreme Court censured a judge and suspended him for 6 months without pay for using marijuana.  In re Gilbert, 668 N.W.2d 892 (Michigan 2003).  During a Rolling Stones concert, someone had passed a marijuana cigarette down the aisle in which the judge was sitting.  The judge took it, puffed it, and then passed it along.  When the marijuana cigarette was returned back down the aisle, the judge puffed it a second time before passing it along again.  The judge’s actions were well-publicized in the press in western Michigan, received significant attention in the media around metropolitan Detroit, were referenced by national news services, and were the subject of a joke by Jay Leno on The Tonight Show.  The judge took a voluntary leave of absence and reported his conduct to the Judicial Tenure Commission.

 The judge acknowledged that he used marijuana approximately twice a year.  He obtained a substance abuse evaluation by the State Bar of Michigan Lawyers and Judges Assistance Program, completed an in-patient substance abuse treatment program, and entered into a judicial monitoring participation agreement with the assistance program.

Pursuant to the judge’s consent, the Commission had recommended a 90-day suspension without pay.  However, the Court concluded that recommendation was insufficient for a judge who had admitted that he was using marijuana while trying, convicting, and sentencing defendants charged with marijuana offenses.  1 justice dissented, arguing that, in light of the judge’s “hypocrisy,” only removal “would begin to repair the damage to the public’s trust and confidence in the judiciary caused by his criminal misconduct and sufficiently sanction him for it.”

Adopting the findings and recommended sanction of a panel of the Board of Commissioners on Grievance and Discipline based on the judge’s consent, the Ohio Supreme Court publicly reprimanded a judge for using marijuana.  Disciplinary Counsel v. Bowling, 937 N.E.2d 95 (Ohio 2010).  The judge had occasionally used marijuana on weekends, and, in March 2008, began using it daily as self-medication to alleviate the physical and psychological effects of a stroke.  In December 2008, he was cited for possession of marijuana and drug paraphernalia.  By agreement, the drug paraphernalia charge was dismissed, and the marijuana charge was resolved by forfeiture of a $168 bond.  The judge did not plead guilty to and was not convicted of any crime.

After being charged, the judge had not used alcohol or marijuana or any other illegal substance.  He had entered into a 5-year contract with the Ohio Lawyers Assistance Program and completed a detox program, an in-patient program at an addiction-medicine facility, and a 90-day intensive out-patient program.

See also Inquiry Concerning Peters, 715 S.E.2d 56 (Georgia 2011) (removal of judge for obtaining and consuming marijuana at least once a week for several months, in addition to unrelated misconduct); In the Matter of Pepe, 607 A.2d 988 (New Jersey 1992) (removal of a former judge for using marijuana and supplying marijuana to another individual on one occasion, in addition to unrelated misconduct); In re Sherrill, 403 S.E.2d 255 (North Carolina 1991) (removal of a former judge who had been arrested for possessing marijuana, cocaine, and drug paraphernalia and had pled guilty to 3 felony charges); In re Toczydlowski, 853 A.2d 24 (Pennsylvania Court of Judicial Discipline 2004) (public reprimand of a judge for using marijuana); In re Coughenour, Stipulation and Order (Washington Commission on Judicial Conduct September 6, 1991) (public admonishment of a judge who had been charged with driving while under the influence of intoxicating liquor and/or drugs and unlawful possession of marijuana under 40 grams; an order of deferred prosecution had been entered in the traffic matter); In the Matter of Binkoski, 515 S.E.2d 828 (West Virginia 1999) (public censure of a former judge who had pled guilty to driving under the influence of alcohol and possession of less than 15 grams of marijuana and who had attempted to encourage a witness to be less than candid relative to the 2 charges).

Throwback Thursday

10 years ago this month:

  • The California Commission on Judicial Performance severely censured a judge for (1) failing to decide 21 causes submitted to him for decision within 90 days, (2) executing and submitting numerous salary affidavits falsely stating that he had no causes under submission for more than 90 days, and (3) failing to act on over 200 fee waiver applications within the time allowed by law. Inquiry Concerning Freedman (California Commission on Judicial Performance June 26, 2007).
  • Based on the findings of the Judiciary Commission and stipulations, the Louisiana Supreme Court suspended a judge for 15 days without pay for setting an excessive bond to retaliate against the mayor’s opponents. In re Adams, 959 So.2d 474 (Louisiana 2007).
  • Based on the findings of the Judiciary Commission, the Louisiana Supreme Court suspended a judge without pay for 60 days for abusing her contempt power in 2 matters, abusing and exceeding her authority by revoking the defendant’s bond in 2 matters, and treating an attorney in a rude, impatient and sarcastic manner. In re Sassone, 959 So. 2d 859 (Louisiana 2007).
  • Adopting the findings of the Advisory Committee on Judicial Conduct, the New Jersey Supreme Court admonished a former judge for (1) failing to tell a defendant he had the right to be represented by an attorney during a hearing on an outstanding fine; (2) finding a woman in contempt when she paid a parking fine with a check that had “assholes” written in the memo area; (3) paying a fine to his own court clerk when his failure to respond to a parking summons led to the suspension of his license and asking a member of the court staff to fax a request to the motor vehicle commission to have his license reinstated; and (4) refusing to release a defendant on bail until the defendant produced valid identification or verified he was not being sought by federal immigration officials. In the Matter of Gordon, 924 A.2d 512 (New Jersey 2007).
  • Granting a petition filed by the Commission on Judicial Standards based on stipulated findings of fact, the New Mexico Supreme Court publicly reprimanded a judge for endorsing a mayor for re-election and authorizing the use of his name in an endorsement that was published in the local newspaper. Inquiry Concerning Vincent, 172 P.3d 605 (New Mexico 2007).
  • The North Carolina Judicial Standards Commission publicly reprimanded a court of appeals judge who had entered a plea of guilty to impaired driving. In re McCullough, Public Reprimand (North Carolina Judicial Standards Commission June 27, 2007).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for discussing the merits of a criminal case with witnesses outside the presence of the defendant and a prosecutor; conducting her own independent investigation of the allegations; failing to take a plea from the defendant; failing to advise the defendant of his constitutional rights; proceeding to trial in the absence of a prosecutor; finding the defendant guilty with no prima facie proof presented by a prosecutor; ignoring the defendant’s rights to a jury trial, to confront and cross-examine his accusers and witnesses, and against self-incrimination; failing to render her judgment in open court; and failing to reduce the judgment of conviction to writing. Public Admonition of Gomez (Texas State Commission on Judicial Conduct June 15, 2007).
  • Based on a stipulation and agreement, the Utah Supreme Court approved the implementation of an order of censure for a former judge who (1) submitted forms to the administrative office of the court misrepresenting the number of hours of continuing education he had attended and (2) failed to make unemployment insurance contributions required by law for a company he owned. In re Cox, Order (Utah Supreme Court June 13, 2007).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge for failing to properly advise criminal defendants of their constitutional and procedural rights at arraignments and probation review hearings; failing to accept guilty pleas in accordance with court rules; and engaging in a practice that appeared to coerce criminal defendants to waive their right to a jury trial. In the Matter of Odell, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct June 8, 2007).

New issue of the Judicial Conduct Reporter on judicial ethics and social media

The spring issue of the Judicial Conduct Reporter is now available to be downloaded.

The issue is Part 1 of a 2-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics.  Part 1 describes the advice judicial ethics advisory committees have given judges regarding social media in general and the rules related to judicial duties in particular.  Relevant caselaw is also used to illustrate the principles discussed.

In response to inquiries from judges, committees have allowed judges to join the millions of others using social media but have also emphasized that the code of judicial conduct applies on networks and warned judges to be very careful while socializing on-line.  Opinions advise judges to implement the services’ privacy protections but to assume all social media activity may become public and be attributed to the judge.  Judges have also been cautioned not to make any statements indicating bias or prejudice, not to allow such comments on their page, and not to “like” such comments by others.  Further, the committees remind judges that the requirement that they maintain the dignity of the judicial office applies to every social media post and photo.

With respect to making social connections on networks, some advisory committees prohibit judges from “friending” attorneys who may appear before them while others reject that bright line for a friend-by-friend analysis of appropriateness.  Disqualification is not automatically required when a “friend” appears in a case, but such an appearance requires a judge to consider the nature and scope of the social media relationship and other relevant factors to determine whether the judge’s impartiality could reasonably be questioned.  Further, committees recommend or even require disclosure of a social media relationship in a case involving a “friend.”

In addition, the opinions note there is no social media exception to the prohibitions on ex parte communications and independent investigations.  Finally, the committees remind judges that all comments on pending cases are “public” when made on social media and suggest that a broad interpretation of the prohibition on public comments is the best way for judges to maintain public confidence in the judiciary.

Part 2, which will be the summer issue of the Reporter, will cover off-bench conduct:  abuse of the prestige of office, disclosing non-public information, providing legal advice, charitable activities, including fund-raising, commenting on issues, political activity, and campaign conduct.  Both parts will contain links to additional materials on the Center for Judicial Ethics web-site.  The 2 parts and the supplemental materials will be combined in a comprehensive paper that will be posted on the Center’s web-site in late 2017.

Anyone can sign up to receive notice when a new issue is available.  All past issues of the Reporter are also available on-line as free downloads.  There is an index of Reporter articles.

Throwback Thursday

20 years ago this month:

  • Pursuant to the judge’s consent, the Indiana Commission on Judicial Qualifications publicly admonished a judge for comments to the press about a pending investigation of over $8,000 missing from the court probation department funds. Statement of Admonition of Letsinger (Indiana Commission on Judicial Qualifications June 13, 1997).
  • The Kentucky Supreme Court suspended a judge for 30 days for, as part of her campaign against the incumbent judge, distributing a campaign advertisement in a document designed to mislead voters into believing it was a newspaper and distributing a letter that referred to the incumbent’s sentence in a child abuse case and then stated, “Please join me in stopping the abuse and vote for a person who will let no one walk away before justice is served.” Summe v. Judicial Retirement and Removal Commission, 947 S.W.2d 42 (Kentucky 1997).
  • The New York State Commission on Judicial Conduct removed a judge who had improperly intervened on behalf of his daughter in 3 incidents. In the Matter of Chase, Determination (New York State Commission on Judicial Conduct June 10, 1997).
  • Accepting a judge’s stipulation consenting to the implementation of the findings of fact, conclusions of law, and order of the Judicial Conduct Commission, the Utah Supreme Court publicly reprimanded a judge who had had a large malpractice judgement entered against him for conduct as an attorney prior to appointment to bench, had filed for bankruptcy, and had answered “no” on his application for judicial appointment to questions asking whether he had ever been or was currently a defendant in a malpractice suit and whether he was currently the subject of an investigation that could result in civil or criminal action. Re Shumate, Order (Utah Supreme Court June 1, 1997).

 

Recent cases

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for multiple errors in an eviction proceeding. Carrillo, Order (February 6, 2017).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for, while a candidate, (1) obtaining and registering the domain name he knew his opponent intended to use for his campaign web-site and redirecting internet traffic from that web-site to his campaign web-site and (2) having a small image on his Facebook page with a logo that stated, “Andrew Hettinger Justice of the Peace” without “elect” prior to his name or “for” between his name and the position. Hettinger, Amended order (Arizona Commission on Judicial Conduct May 31, 2017).
  • The Arizona Commission on Judicial Conduct publicly reprimanded a pro tem judge for promoting the use of a company in which she has an ownership interest while presiding over settlement discussions in a family law case and including use of that company’s service as a term in the settlement agreement.  Sheldon, Order (Arizona Commission on Judicial Conduct May 17, 2017).
  • The California Commission on Judicial Performance publicly admonished a judge for (1) posting a statement about a judicial candidate on Facebook with knowing or reckless disregard for the truth and (2) being Facebook friends with attorneys who were appearing regularly before him. In the Matter Concerning Ferguson, Public admonishment (California Commission on Judicial Performance May 31, 2017).
  • Approving the recommendation of the hearing panel of the Judicial Qualifications Commission, the Florida Supreme Court suspended a judge for 90 days without pay and publicly reprimanded her for knowingly misrepresenting a newspaper endorsement for her 1994 legislative re-election campaign to make it appear the endorsement was for her 2014 judicial campaign. Inquiry Concerning Shepard (Florida Supreme Court May 4, 2017).
  • Based on stipulations, the New Hampshire Judicial Conduct Committee publicly reprimanded a judge for revising a negotiated plea agreement sua sponte and refusing to allow the state to strike amendments to the charges; the Committee dismissed complaints about the judge’s handling of 4 other plea agreements with a caution and recommendation for prudent future conduct. In the Matter of DeVries (New Hampshire Judicial Conduct Committee April 7, 2017).
  • The New York State Commission on Judicial Conduct removed a non-lawyer judge for (1) multiple efforts to influence the disposition of a traffic ticket received by his daughter and being discourteous to the prosecutor in the case and (2) in connection with the appeal of his order of restitution in a case, sending 8 letter to the county court that contained factual and legal arguments and biased, discourteous statements about the defendant and his attorney. In the Matter of Ayres, Determination (New York State Commission on Judicial Conduct May 4, 2017), review requested.
  • Adopting the findings and conclusions of the Judicial Standards Commission based on stipulations and accepting its recommendation based on the judge’s agreement, the North Carolina Supreme Court publicly censured a judge for driving while substantially impaired and belligerent, offensive, and denigrating behavior towards law enforcement and emergency personnel. In re LaBarre (North Carolina Supreme Court May 5, 2017).
  • Adopting the recommendation of the Board of Professional Conduct based on stipulations, the Ohio Supreme Court suspended a former judge from the practice of law for 2 years, with the second year stayed on the condition that he commit no further misconduct, for soliciting prostitution and falsifying a court record. Ohio State Bar Association v. Jacob (Ohio Supreme Court May 10, 2017).
  • Accepting an agreement for discipline by consent, the South Carolina Supreme Court suspended for 45 days without pay a judge who had a physical altercation with another attendee following a meeting of a cotillion club. In the Matter of Johnson (South Carolina Supreme Court May 31, 2017).
  • Affirming the determination of the State Commission on Judicial Conduct, the Special Court of Review Appointed by the Texas Supreme Court publicly reprimanded a judge for engaging in an improper sexual relationship with his chief clerk. In re Casey (Special Court of Review Appointed by the Texas Supreme Court May 9, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for a Facebook post that stated, “Time for a tree and a rope . . .” in response to the arrest of an African-American man for the killing of a police officer. Amended Public Reprimand and Order of Additional Education of Oakley (Texas State Commission on Judicial Conduct May 8, 2017).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for refusing to allow a member of the public to inspect and copy judicial case files and physically escorting the man out of his office. Public Warning of Alford and Order of Additional Education (Texas State Commission on Judicial Conduct March 28, 2017).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for failing to provide the plaintiff in a small claims case with adequate written notice of his trial date, proceeding to trial without requiring the defendant to file a written answer to the lawsuit, communicating with the defendant regarding the merits of the case, failing to treat the plaintiff with patience, dignity, and courtesy, presenting a settlement offer in a way that give the plaintiff the impression the defendant was in a position to influence the judge and used the prestige of his office to advance the defendant’s interest, and using racially insensitive language while in the courthouse. Public Reprimand of DeLaPaz and Order of Additional Education (Texas State Commission on Judicial Conduct March 17, 2017).
  • Adopting the decision of the Judicial Conduct Board, the Vermont Supreme Court ordered that a judge be immediately and permanently suspended from judicial office, prohibited him from holding judicial office in the state, and publicly reprimanded him for depositing payments on loans into his personal bank account even though the loans had been made with funds from his uncle’s wife and negotiating the forgiveness of the loans; making a facially implausible claim against her estate; failing to protect the assets of the estate; and making false statements during a probate court hearing. In re Kane (Vermont Supreme Court May 24,  2017).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly reprimanded a judge who solicited endorsements from court employees in support of his campaign. In re Federspiel, Stipulation, Agreement, and Order of Reprimand (Washington State Commission on Judicial Conduct May 12, 2017).