Professional connections, reactions, and monitoring on social media

In an advisory opinion, the Colorado Judicial Ethics Board addresses “to what extent a judge may be active” on LinkedIn, “with whom a judge may connect,” and “the ethical implications of judges using LinkedIn to post, comment on, endorse, connect with, or react to posts made by themselves and others.” Colorado Advisory Opinion 2022-5. The board describes LinkedIn as “an online social media website that focuses on professional networking and career development,” used by millions of professionals and many courts and bar associations. Although the opinion notes some of the unique features of LinkedIn, much if not all of the advice appears just as applicable on other social media platforms.

The opinion states that a judge may have a LinkedIn profile page identifying them as a judicial officer, listing the court that they serve on, and including a profile picture of themself in judicial robes as long as the photo is taken in an appropriate setting, for example, a courtroom or chambers. The board also notes that a judge may choose not to identify as a judicial officer on the platform but warns that even then, the judge “should proceed as if every connection knows that the judge is a judge.” The opinion states that judges may connect with bar associations and law-related groups on LinkedIn.

The opinion also advises that a judge may connect with attorneys on LinkedIn even if the attorney may appear before the judge but that the judge should consider when deciding whether to connect with an attorney the nature of the judge’s page, the number of friends or connections they have on the page, their practice when deciding whom to friend or connect with, and how regularly the attorney appears before the judge. The board cautions that, if an attorney-connection appears before the judge in a case, the judge may have to remove the attorney from their connections based on considerations such as the characteristics of the lawyer’s practice and the jurisdiction of the judge’s court. If the judge and the attorney-connection have a close relationship, the judge should disclose the relationship to the parties and perhaps recuse. The opinion states that a new judge may have to delist a pre-existing attorney-connection based on whether the attorney may appear before them, the judge’s docket type, and the characteristics of the attorney’s practice. “Having a LinkedIn connection,” the board writes, “is just one factor for a judge to consider in determining whether to disclose the relationship.”

The opinion advises that a judge may not endorse any LinkedIn connection’s skills or endorse businesses on LinkedIn but may recommend a connection based on the judge’s personal knowledge, for example, recommending their former clerk for a specific position to a potential employer. New judges with existing LinkedIn accounts should “unendorse” attorneys or businesses they have previously endorsed.

The opinion emphasizes that judges must never post, repost, comment on, or react to anything on LinkedIn that would violate the code of judicial conduct, including posts, comments, or reactions:

• That involve pending cases,
• That disclose non-public information concerning a case,
• That constitute political activity, or
• That demean a person based on their race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, or socioeconomic status.

For example, the opinion states, “judges should not forward what the judge might regard as an innocuous off-color joke because, for a judge, there is no such thing as an innocuous off-color joke.”

The board states that, in general, judges may post, repost, comment on, and react to topics concerning the law, the legal system, or the administration of justice, that is, issues concerning court administration and procedure. For example, the opinion states, “judges may post or comment on announcements for free legal clinics, new court rules, judicial vacancies, and upcoming meetings for local specialty bars and inns of court because there is nothing controversial or inappropriate about these subjects.”

The opinion also permits judges to post and repost public legal decisions from their own court or any state or federal court and to post and repost neutral news reports on judicial decisions. However, the board warns judges to “think twice about posting, commenting on, or reacting to articles praising or criticizing a legal decision because doing so drifts away from the safe harbor of the law, the legal system, and the administration of justice and wades into sociopolitical waters.” The board further notes that, although a judge could post a link to the U.S. Supreme Court’s recent abortion decision, for example, “some may wonder what the judge’s intention was when making such a post, and what first began as an innocuous post announcing a long-awaited U.S. Supreme Court decision may quickly evolve into a political or biased battleground” if the judge’s connections comment on the post or react with the icons indicating support, celebration, love, or curiosity available on the platform.

Therefore, the opinion concludes, “judges must monitor comments and reactions to anything they post or repost on LinkedIn.” The board cites California Judges’ Association Advisory Opinion 66 (2010). In that opinion, the California Judges Association Judicial Ethics Committee explained that, although “in a traditional social setting, a judge normally has no obligation to respond to comments made by others, no matter how distasteful or offensive,” leaving inappropriate comments on their social media page “may create the impression that the judge has adopted the comments,” which “can become not only permanent but accessible to all of the judge’s friends.” Therefore, the committee concluded: “a judge is obligated to delete, hide from public view or otherwise repudiate demeaning or offensive comments made by others that appear on the judge’s social networking site.” The committee also warned that, “a judge has an obligation to be vigilant in checking his/her network page frequently in order to determine if someone has placed offensive posts there.”

An opinion from the California Supreme Court Committee on Judicial Ethics Opinions also directed judges to continually monitor reactions to the statements they post on social media. California Expedited Opinion 2021-42. The committee described a 2-step process for judges to ensure compliance with the code while they are on social media.

First, they must carefully evaluate their own statements . . . before deciding to post something on social media. . . . Second, they must monitor reactions to their statements and the social media forums they use. For example, if a judge’s social media posts trigger online posts or comments that devolve into discussions undermining the judge’s impartiality or demeaning the judicial office, the judge must use his or her best efforts to delete those posts. Or, just as in physical public forums, if the social media site itself suggests bias or impropriety, a judge may need to leave that site entirely.

The opinion concluded: “While it may not be feasible to track every social media page they have commented on or change the conduct of online contacts, a judge must make reasonable efforts to monitor social media pages or threads associated with the judge and take action to remedy any statements that compromise the integrity of the judiciary.”

In its 2018 annual report, the California Commission on Judicial Performance stated that it had privately admonished a judge who failed to diligently monitor social media associated with their name, in addition to other conduct.

See also Florida Advisory Opinion 2012-7 (suggesting that a judge who writes a blog add a disclaimer that they do not “endorse or vouch for” comments by others and that others’ comments do not represent the judge’s views); Washington Advisory Opinion 2009-5 (suggesting that a judge who writes a blog review others’ comments before they are published if possible, regularly monitor the comments to ensure that the discussion does not move into a prohibited topic, and consider “whether readers might perceive that the judge’s impartiality is impaired by the volume and content” of the comments).

Judicial candidates have also been advised to monitor their social media pages for inappropriate posts by others. In a statement, the Kentucky Judicial Campaign Conduct Committee cautioned candidates that “they are ultimately responsible for material posted on their social-media pages and should remove information that is false or misleading.” The North Carolina Judicial Standards Commission stated that, as a best practice, judicial candidates should monitor comments on social media and remove offensive or profane comments from their public campaign page. North Carolina Political Conduct Memo (2022).

With respect to content on others’ social media pages, the Massachusetts committee stated that a judge cannot “reasonably be expected to monitor all postings and comments” on the social media pages of friends or organizations that the judge follows or likes. Massachusetts Advisory Opinion 2016-1. The committee explained that a reasonable person would not conclude that a judge endorsed a Facebook friend’s communication unless the judge expressly agreed with it, noting that “a Facebook user often has no knowledge concerning the communications made by Facebook friends.” However, the committee added, if a judge becomes aware that a Facebook friend’s communications or the contents of a page the judge likes or follows “negatively impact the integrity or impartiality of the judiciary,” the judge must “unfriend” the person or stop “liking” or “following” that page. Similarly, the Utah committee stated that “a judge is not required to continually monitor” other’s websites, but that, “if a judge happens to review a website with which the judge is associated, and the website contains questionable content, the judge may be required to disassociate from the site.” Utah Informal Advisory Opinion 2012-1. But see Missouri Advisory Opinion 186 (2015) (a judge must make “a reasonable effort to review” social media posts by “friends” and “friends of friends” and must “sever or ‘unfriend’ anyone whose conduct or postings would place the judge in position of appearing to endorse . . . prohibited conduct”).

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