Code provisions about social media

The 2007 version of the American Bar Association Model Code of Judicial Conduct makes no reference to social media, not surprising giving the novelty of virtual networking as Facebook only became generally available in September 2006.  As more and more judges began to participate in social media, numerous judicial ethics opinions and judicial discipline cases have emphasized that the code applies on-line as well as IRL.  So far, 6 states have adopted provisions in their codes to stress that principle.

The new code of judicial conduct adopted by the Illinois Supreme Court (which will be effective January 23, 2023) includes the most extensive provisions addressing social media. The preamble to the new Illinois code explains in general:

The Code governs a judge’s personal and judicial activities conducted in person, on paper, and by telephone or other electronic means.  A violation of the Code may occur when a judge uses the Internet, including social networking sites, to post comments or other materials such as links to websites, articles, or comments authored by others, photographs, cartoons, jokes, or any other words or images that convey information or opinion.  Violations may occur even if a judge’s distribution of a communication is restricted to family and friends and is not accessible to the public.  Judges must carefully monitor their social media accounts to ensure that no communication can be reasonably interpreted as suggesting a bias or prejudice; an ex parte communication; the misuse of judicial power or prestige; a violation of restrictions on charitable, financial, or political activities; a comment on a pending or impending case; a basis for disqualification; or an absence of judicial independence, impartiality, integrity, or competence.

There are also specific comments about social media to many of the rules.

With respect to use of the prestige of office, a comment to Rule 1.3 warns:

[A] judge must not use the judicial title in letterhead, e-mails, or any other form of communication, including social media or social networking platforms, to gain an advantage in conducting personal business.

A comment to Rule 2.1 cautions:

To ensure that judges are available to fulfill their judicial duties, judges must conduct their personal and extrajudicial activities, including their use of social media or participation on social networking platforms, to minimize the risk of conflicts that would result in frequent disqualification.

Comments to the rule regarding ex parte communications (Rule 2.9) state:

The proscription against communications concerning a proceeding includes communications with lawyers, law teachers, or other persons who are not participants in the proceeding and communications made or posted on social media or social networking platforms.

* * *

Judges who maintain a presence on social media or social networking platforms should be aware of the potential for these sites to become an unintended vehicle for ex parte communications.

A comment to Rule 2.10, which limits judicial statements on pending and impending cases,  states that “judges who are active on social media or social networking platforms should understand how their comments in these forums might be considered ‘public’ statements implicating this Rule.  Judges should be aware of the nature and efficacy of privacy settings offered by social media or social networking platforms.”

A comment to the disqualification provisions in Rule 2.11 states:

A judge’s use of social media or social networking platforms may create the appearance of a relationship between the judge and litigants or lawyers who may appear before the judge.  Whether a relationship would cause the judge’s impartiality to ‘reasonably be questioned’ depends on the facts.  While the labels used by the social media or social networking platform (e.g., “friend”) are not dispositive of the nature of the relationship, judges should consider the manner in which the rules on disqualification have been applied in traditional contexts and the additional ways in which social media or social networking platforms may amplify any connection to the judge.

A comment to Rule 3.7 advises:

A judge may not use social media or social networking platforms to promote the activities of educational, religious, charitable, fraternal, or civic organizations when the judge would be prohibited from doing so using another means of communication.  For example, just as a judge may not write or telephone nonfamily members or judges over whom the judge has supervisory authority to encourage them to attend organizations’ fundraising events, a judge may not promote those events via social media or social networking platforms.

A comment to the Rule 4.1 prohibition on judges and judicial candidates “publicly” endorsing or making “speeches” on behalf of political candidates or organizations notes that “comments by judges active on social media or social networking platforms may be considered ‘public’ for purposes of this Rule.”

* * *

In 2 places, the commentary to California code of judicial ethics refers to judges’ obligations regarding social media. Commentary to Canon 2A states:

A judge must exercise caution when engaging in any type of electronic communication, including communication by text or email, or when participating in online social networking sites or otherwise posting material on the Internet, given the accessibility, widespread transmission, and permanence of electronic communications and material posted on the Internet.  The same canons that govern a judge’s ability to socialize in person, on paper, or over the telephone apply to electronic communications, including use of the Internet and social networking sites.  Those canons include, but are not limited to Canon 2B(2) (lending the prestige of judicial office), 3B(7) (ex parte communications), 3B(9) (public comment on pending or impending proceedings), 3E(2) (disclosure of information relevant to disqualification), and 4A (conducting extrajudicial activities to avoid casting doubt on the judge’s capacity to act impartially, demeaning the judicial office, or frequent disqualification).

With respect to use of the prestige of office, commentary to Canon 2B explains:

If a judge posts on social networking sites such as Facebook or crowdsourced sites such as Yelp or TripAdvisor, the judge may not lend the prestige of judicial office to advance the pecuniary or personal interests of the judge or others.  For example, a judge may not comment on, recommend, or criticize businesses, products, or services on such sites if it is reasonably likely that the judge can be identified as a judge.

Comment 5 to Rule 3.1 of the Idaho code warns:

While judges are not prohibited from participating in online social networks, such as Facebook, Instagram, Snapchat, and the like, they should exercise restraint and caution in doing so.  A judge should not identify himself as such, either by words or images, when engaging in commentary or interaction that is not in keeping with the limitations of this Code.

Canon 2B to the Virginia code of judicial conduct provides:

The same provisions of these Canons that govern a judge’s ability to socialize and communicate in person, in writing, or over the telephone also apply to the Internet and social networking sites.  While a judge is not prohibited from participating in online social media sites or networks, a judge should exercise restraint and discretion in doing so.  A judge must avoid any online activity that would cause a reasonable person to question a judge’s ability to be impartial.

Similarly, Comment 6 to Rule 3.1 of the West Virginia code reminds judges:  “The same Rules of the Code of Judicial Conduct that govern a judicial officer’s ability to socialize and communicate in person, on paper, or over the telephone also apply to the Internet and social networking sites like Facebook.”

The preamble to the New Mexico code states:  “Judges and judicial candidates are . . . encouraged to pay extra attention to issues surrounding emerging technology, including those regarding social media, and are urged to exercise extreme caution in its use so as not to violate the Code.”

Finally, the code of conduct that applies to judges on Connecticut’s probate courts, which is adopted by the Connecticut Probate Assembly and the Probate Court Administrator, includes 2 comments on social media.

Comment 5 to Rule 3.1 regarding extrajudicial activities states:

“Extrajudicial activities” include a judge’s participation on social media.  While a judge must exercise extreme caution when engaging in any type of electronic communication, including communication by text or email, participation on online social networking sites or otherwise posting material on the Internet are particularly problematic, given the accessibility, widespread transmission, and permanence of electronic communications and material posted on the Internet.  Such activity demands particular attention.  The same rules that govern a judge’s ability to socialize in person, on paper, or over the telephone apply to all electronic communications, including on the Internet and social networking sites.  While judges are not prohibited from participating in online social networks, such participation is fraught with peril, and they should exercise restraint and caution in doing so.  For example, a judge should not identify himself as such, either by words or images, when engaging in commentary or interaction that is not in keeping with the limitations of this Code.

Comment 3 to Rule 4.1 regarding political conduct states:

“Political and campaign activities” include a judge or judicial candidate’s participation on social media.  While a judge or judicial candidate must exercise extreme caution when engaging in any type of electronic communication, including communication by text or email, participation on online social networking sites or otherwise posting material on the Internet are particularly problematic, given the accessibility, widespread transmission, and permanence of electronic communications and material posted on the Internet.  Such activity demands particular attention.  The same rules that govern a judge or judicial candidate’s ability to socialize in person, on paper, or over the telephone apply to all electronic communications, including on the Internet and social networking sites.  While judges or judicial candidates are not prohibited from participating in online social networks, such participation is fraught with peril, and they should exercise restraint and caution in doing so.  For example, judges or judicial candidates should not identify themselves as such, either by words or images, when engaging in commentary or interaction that is not in keeping with the limitations of this Code.

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