Social media and judicial ethics: Part 2 — New issue of the Judicial Conduct Reporter

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

The issue is Part 2 of a two-part article analyzing the advisory opinions and discipline decisions on social media and judicial ethics.  It covers off-bench conduct: conduct that undermines public confidence in the judiciary, commenting on issues, abusing the prestige of office, providing legal advice, disclosing non-public information, charitable activities, political activities, and campaign conduct.  Part 1, in the spring issue, was a general introduction to the topic and a discussion of issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and comments on pending cases.  The 2 parts will be combined in a comprehensive paper that will be posted on the Center’s web-site in late 2017.

The code of judicial conduct’s restrictions on judges’ off-bench activities apply equally on social media as in other contexts.  For example, under the general ethical standards of the code regarding promoting public confidence in the judiciary, judges have been disciplined for sexual misconduct on social media and for posting injudicious, negative, or unfairly critical comments.  Similarly, as anytime a judge is writing or speaking, a judge must avoid social media posts on legal and other topics that might raise reasonable questions about her impartiality.

The prohibition on judges’ practicing law precludes judges from giving legal advice on social media, either in response to a specific question or in a general post that could be construed as legal advice. Judges are prohibited from disclosing non-public information on social media even in a broad, general post.

When using social media, judges must not post anything that could be construed as using the prestige of office to advance their private interests.  For example, that rule may limit a judge’s ability to “like,” review, or recommend lawyers, events, businesses, and movies on social media at least when her judicial identity is disclosed.

Just as judges may be members and officers of, volunteer with, or attend events for most non-profit organizations, they may also “like” or “follow” most civic or charitable organizations on social media as long as the organization is not discriminatory and its goals and activities do not undermine judicial independence, integrity, or impartiality.  A judge may not, however, solicit funds for organizations on social media through, for example, posts that encourage people to attend fund-raising events.  The restrictions on judges’ political activities apply on-line as well as in traditional forums.  For example, to comply with the prohibition on political endorsements, a judge should not “like” the Facebook page of a political organization or candidate.

Social media is an approved communications and fund-raising tool for judicial candidates, but all the rules apply on social media that apply to traditional campaigning.  Therefore, a judicial candidate should delegate at least the fund-raising aspects of a social media page to his campaign committee or staff to comply with the prohibition on personal solicitation.   candidate must also review and approve the content of all campaign statements before posting to ensure compliance with the rules limiting campaign speech.

You can sign up here 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 subject index of Reporter articles here.

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