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.