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.

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.

Another Facebook fail

The Texas State Commission on Judicial Conduct publicly reprimanded a judge for posting, “Time for a tree and a rope . . .” on Facebook in response to the arrest of an African-American man in the killing of a police officer.  Amended Public Reprimand of Oakley and Order of Additional Education (Texas State Commission on Judicial Conduct May 8, 2017).  The Commission also ordered the judge to complete 30 hours of training for new judges and participate in 4 hours of instruction on racial sensitivity with a mentor chosen by the Commission.

On November 21, 2016, the San Antonio Police Department posted to its Facebook page a mugshot of Otis McKane, an African-American man, with the following statement:

Today at 1545 hrs.  Otis Tyrone McKane was taken in custody for the capital murder of SAPD Det. Benjamin Marconi.  The arrest was made by SAPD in a joint effort with multiple law enforcement agencies.  The arrest was made without incident.  The San Antonio Police Department would like to thank everyone who assisted in locating the suspect.

In response, the judge posted to the police department Facebook page the comment, “Time for a tree and a rope . . .”  His comment, along with the post, also appeared on his own Facebook page.

The former editor of a local newspaper took a screen shot of the judge’s Facebook post and disseminated it to the news media.  The judge removed his post and issued a public apology, describing his comment as “harsh,” “off-the-cuff,” and “curt,” but denying it had anything to do with race.  The judge and his post became the subject of negative media attention locally, nationally, and internationally, and the Commission received 18 written complaints.  The complainants expressed numerous concerns about the post, including its call for vigilante justice, apparent disregard for due process of law, racial insensitivity, and possible influence on the jury pool.  Multiple complainants also questioned the judge’s suitability for judicial office and his ability to perform his judicial duties impartially.

Asked by the Commission to explain the intent and context of his Facebook post, the judge responded, “My comment was intended to reflect my personal feelings that this senseless murder of a police officer should qualify for the death penalty.  In my mind the race/gender of the admitted cop killer was not relevant.”  The judge explained that a “tree and a rope” was a reference to a humorous advertising campaign for Pace Picante Sauce salsa from the 1980s.  The judge does not believe his post cast discredit on the judiciary because the “media stories were promoted as a political attack” and his words were twisted into “phrases [and] headlines that were not accurate.”  During his appearance before the Commission, the judge made statements that indicated to the Commission that he could benefit from racial sensitivity training.  The judge also testified that he had not attended training for new judges.

The Commission found that the judge’s post “cast reasonable doubt on his capacity to act impartially in the performance of his duties” and was “willful conduct that cast public discredit on the judiciary and the administration of justice.”

The most-requested resources section of the Center for Judicial Ethics web-site has a comprehensive list of discipline cases, advisory opinions, and other judicial ethics and discipline materials related to social media.

“Social Media and Judges:  Bright Lines and Best Practices” will be the plenary session at the 25th National College on Judicial Conduct and Ethics, October 4-6, 2017, in Austin, Texas.  Topics for the break-out sessions are:

  • Disqualification
  • The Curious Judge: Independent Factual Investigations
  • Judicial Discipline and Technology
  • Ethical Guidelines for Members of Judicial Conduct Commissions
  • Judicial Impairments
  • Best Practices for Judicial Ethics Advisory Committees
  • Pro Se Litigants and Judicial Ethics
  • Fines, Fees, and Judicial Ethics
  • Determining the Appropriate Sanction
  • The Role of Public Members
  • Introduction to Judicial Ethics and Discipline for New Members of Judicial Conduct Commissions

Registration is now open for the College.

The up-coming spring and summer issues of the Judicial Conduct Reporter will be a 2-part article on social media and judicial ethics.  Part 1, the spring issue, will be a general introduction to the topic followed by a discussion of the social media issues related to judicial duties:  “friending” attorneys, disqualification and disclosure, ex parte communications and independent investigations, and commenting on pending cases.  The second part of the article, 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, commenting on issues, political activity, and campaign conduct.  You can sign up to receive notice when new issues of the Reporter are available.

2016 Facebook fails:  Top judicial ethics and discipline stories of 2016

Judges got in trouble for injudicious, off-the-bench comments before recent revolutions in on-line communications, but the greater temptation to vent posed by the new-fangled social media and the greater potential for venting to “go viral” were illustrated in several cases in 2016.

Dropping his First Amendment defense to charges brought by the Kentucky Judicial Conduct Commission, a judge agreed to a 90-day suspension without pay for, in addition to other misconduct, publishing comments on Facebook that accused the county commonwealth’s attorney of advocating for all-white jury panels, that criticized the public defender and criminal defense attorneys for not publicly supporting him in his dispute with the commonwealth’s attorney, and that discussed the motion to certify the law filed on behalf of the commonwealth’s attorney while the case was pending before the Kentucky Supreme Court.  In re Stevens, Agreed order of suspension (Kentucky Judicial Conduct Commission August 8, 2016).  For example, the judge had posted, “History will unfavorably judge a prosecutor who loses a jury trial in which a black man is acquitted and then appeals the matter claiming he is entitled to an all-white jury panel.  No matter the outcome, he will live in infamy.”  The judge also made numerous similar comments during a presentation to the Louisville Bar Association.  For a longer summary of the case, see the previous post here.  Later in 2016, reviewing Judge Stevens’s decision, the Kentucky Supreme Court held that he did not have the discretion to dismiss a randomly selected jury panel that, despite its unrepresentative appearance, was drawn from a jury pool that reflected a fair cross section of the community.

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Accepting a stipulation and joint recommendation, the New York State Commission on Judicial Conduct publicly admonished a judge for making improper public comments on her Facebook account about a matter pending in another court and failing to delete related public comments by her court clerk.  In the Matter of Whitmarsh, Determination (New York State Commission on Judicial Conduct December 28, 2016).

The judge sits on the Morristown Town Court.  On March 3, 2016, a felony complaint was filed in the Canton Town Court alleging David VanArnam, who was running for the Morristown town council, had filed nominating petitions in which he falsely swore that he personally witnessed the signatures on the petitions.  On March 13, in a post on her Facebook account, the judge commented that she felt “disgust for a select few,” that VanArnam had been charged with a felony rather than a misdemeanor because of a “personal vendetta,” that the investigation was the product of “CORRUPTION” caused by “personal friends calling in personal favors,” and that VanArnam had “[a]bsolutely” no criminal intent.  The judge also stated, “When the town board attempted to remove a Judge position – I stood up for my Co-Judge.  When there is a charge, I feel is an abuse of the Penal Law – I WILL stand up for DAVID VANARNAM” [sic] [emphasis in original].  The judge also posted a web-site link to a news article reporting when the charge against VanArnam had been dismissed.

The judge had intended her post to be seen only by her 352 Facebook “friends.”  However, a few years earlier, she had set her Facebook privacy settings to “public” for an unrelated reason, and, at the time of her posting about the VanArnam case, her privacy settings were still set to public although she did not realize that.  The judge’s post about the VanArnam case was shared at least 90 times by other Facebook users.  A local news outlet posted an article on its web-site reporting on the judge’s Facebook comments and re-printed her post.

The Morristown Town Court Clerk posted on the judge’s Facebook page, “Thank you Judge Lisa!  You hit the nail on the head.”  The judge did not delete the court clerk’s comment, which was viewable by the public.

In 2 comments posted on the judge’s Facebook page, the judge’s husband questioned whether the complainant in the VanArnam case had a “close personal relationship” with “our prosecutor” and called the matter a “real ‘Rain Wreck’” referring to Mary Rain, the county District Attorney.  The judge clicked the “like” button next to some of the comments to her post, including a comment stating that the charges against VanArnam were “an abuse of our legal system” and “uncalled for;” a comment criticizing the district attorney; and another comment by her husband, stating, “This is what’s wrong with our justice system.”

On March 28, the judge removed all posts concerning the VanArnam matter from her Facebook page after receiving a letter from District Attorney Rain questioning the propriety of her comments and requesting her recusal from all matters involving the District Attorney’s office.  Soon after receiving that letter, the judge granted that request.

The Commission stated:

Comments posted on Facebook are clearly public, regardless of whether they are intended to be viewable by anyone with an internet connection or by a more limited audience of the user’s Face book “friends.”  Even such a “limited” audience, we note, can be substantial, and to the extent that such postings can be captured or shared by others who have the ability to see them, they cannot be viewed as private in any meaningful sense. . . .

Regardless of respondent’s intent, her comments — and her “likes” of comments criticizing the District Attorney that were posted in response to her message — conveyed not only respondent’s personal view that the prosecution was unjust, but the appearance that she was impugning the integrity of the prosecution and endorsing others’ criticism of the District Attorney’s office and the District Attorney personally.  Her statements, which were viewable online for 15 days and were reported by the media, were inconsistent with her duty to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” . . . and resulted in her recusal from all matters involving the District Attorney’s office.  Moreover, by referring to her judicial position in the same post (stating that she had once “stood up for my Co-Judge”), respondent lent her judicial prestige to her comments, which violated the prohibition against using the prestige of judicial office to advance private interests . . . .

Noting that a judge is required to “‘require similar abstention [from public comment about pending proceedings] on the part of court personnel subject to the judge’s direction and control,” the Commission stated that the “comments posted by respondent’s court clerk on respondent’s Facebook page were also objectionable.”

The Commission took the “opportunity to remind judges that the Rules Governing Judicial Conduct apply in cyberspace as well as to more traditional forms of communications and that in using technology, every judge must consider how such activity may impact the judge’s ethical responsibilities. . . .  While the ease of electronic communication may encourage informality, it can also, as we are frequently reminded, foster an illusory sense of privacy and enable too-hasty communications that, once posted, are surprisingly permanent.”  The Commission noted that the Advisory Committee on Judicial Ethics has cautioned judges about the public nature and potential perils of social networks, advised that judges who use such forums must exercise “an appropriate level of prudence, discretion and decorum” to ensure that their conduct is consistent with their ethical responsibilities, and said it is essential that judges who use such forums “stay abreast of new features of and changes to any social networks they use.”  The Commission noted “these are excellent guidelines for any judge who joins and uses an online social network.  At a minimum, judges who do so must exercise caution and common sense in order to avoid ethical missteps.”

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Based on an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 6 months without pay for his Facebook posts about a case, political matters, and a fund-raiser for a local church.  In the Matter of Johns, 793 S.E.2d 296 (South Carolina 2016).  The judge’s Facebook account identified him as the probate court judge for Oconee County, and the account and all of his posts were accessible to all members of Facebook.

Z.H.’s parents had filed a wrongful death suit on behalf of his estate against the police department.  The case was settled for $2,150,000.  The settlement received extensive press coverage.

While the matter was before the probate court for administration of the estate, the judge expressed his opinion about the settlement on Facebook, posting:  “In the end it’s all about the money.  Always.  Unfortunately, I see it EVERYDAY.”  The judge later added:  “Once ck is in hand, they’ll disappear.”

The judge also made extensive political posts on Facebook, including ones in which he appeared to endorse a presidential candidate.  He also engaged in fund-raising for a local church in a post.

See also In the Matter of Archer, Final judgment (Alabama Court of the Judiciary August 8, 2016) (6-month suspension for sexually explicit Facebook relationship with a woman the judge met in his official capacity); Commission on Judicial Performance v. Clinkscales, 191 So. 3d 1211 (Mississippi 2016) (public reprimand of a former judge for endorsing a political candidate on social media, in addition to other misconduct); Public Reprimand of Uresti and Order of Additional Education (Texas State Commission on Judicial Conduct October 11, 2016) (public reprimand for Facebook posts that promoted the financial interests of a relative and a former judge, in addition to other misconduct).

See “social media and judicial ethics” in the most-requested Center resources section of the Center web-site for a comprehensive list of discipline cases, advisory opinions, and other judicial ethics and discipline materials.

Other posts on the top judicial ethics and discipline stories of 2016

Judges marching and tweeting

In a letter opinion, the Massachusetts Committee on Judicial Ethics advised that a judge should not participate in the Women’s March on Washington scheduled for January 21, 2017.  Massachusetts Letter Opinion 2016-10.  The opinion states:

The Women’s March is scheduled to take place the day after the Presidential Inauguration.  Though the organizers emphasize that the Women’s March is intended to be inclusive and welcoming to everyone who supports women’s rights, the political overtones are unmistakable.  The organizers reference the “rhetoric of the past election cycle” that has “insulted, demonized, and threatened . . . immigrants of all statuses, Muslims and those of diverse religious faiths, people who identify as LGBTQIA, Native people, Black and Brown people, people with disabilities, [and] survivors of sexual assault.”  A primary purpose of the Women’s March is to “send a bold message to [the] new administration on their first day in office.”

We understand that you wish to participate in the Women’s March to stand up against misogyny, racism, and other biases and bigotries that threaten the rule of law.  The public and the media are, however, likely to focus on the timing of the event and the organizers’ announced desire to “send a message” to the new President on his first day in office.  We believe that a reasonable person would perceive the Women’s March as a political protest, and the Code therefore prohibits your participation.

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The Massachusetts Committee has also issued a letter opinion on judges using Twitter, which is the first comprehensive advisory opinion to focus on that social media platform.  Massachusetts Advisory Opinion 2016-9.  The opinion was in response to an inquiry from a judge who has a Twitter account with a handle that includes “judge” followed by his surname and who includes a photo of himself wearing a judicial robe in numerous tweets.  His posts, the accounts he follows, and the identities of his followers can be viewed by the public at large.

The committee emphasized:  “As is also true with other forms of social media, each judge who uses Twitter must err on the side of caution and be aware that posts a judge-user considers neutral may nonetheless lead a reasonable person to question the judge’s impartiality.”

The Committee is of the opinion that, when a judge is posting publicly as a judge, the judge must be exceptionally cautious.  The reason is that the public may perceive the judge’s communications to have the imprimatur of the courts.  In general, a public, unrestricted Twitter account of an identified judge may be used only for informational and educational purposes.  If the judge so desires, the account also may reflect who the judge is as a person, as well as a judge, so long that the judge is careful not to implicitly or explicitly convey the judge’s opinions on pending or impending cases, political matters, or controversial or contested issues that may come before the courts.  In addition, as to each piece of information revealed by the judge’s Twitter account (whether it is a tweet, a retweet, a “like,” the identity of an account that the judge follows, or the identity of an account that follows the judge) the judge must consider whether it would cause a reasonable person to question the judge’s impartiality.

Noting that many of the judge’s Twitter posts fell into certain categories, the committee gave advice for each category.

  • The committee stated that tweets that “share upcoming and past bar events and other news of general interest to members of the Bar (e.g. the establishment of new specialty courts, the election of bar leaders, the nomination of judges) . . . are consistent with the Code.”
  • With respect to the judge’s tweets advising “trial lawyers on trial practice (e.g., preparing clients to testify, delivering closing arguments, conducting cross-examination),” the opinion stated that “purely educational posts are consistent with the Code, but posts that a reasonable person may regard as demonstrating personal bias or improper comment on a pending case are not.” The committee advised that the judge “must make certain that the posts do not reflect [his] reaction, whether complimentary or critical, to the in-court behavior of any readily identifiable person,” noting that avoiding “a close temporal proximity” between the behavior and the related tweet “will help ensure that such posts are perceived to be purely educational.”  The committee also noted that the judge’s posts must “offer only practice tips and not legal advice.”
  • The judge posts tweets on selected cases decided by other courts, including the Massachusetts Supreme Judicial Court and the U.S. Supreme Court, often on decisions concerning racial discrimination and/or police misconduct, or both, including issues the judge confronts on a regular basis, such as assessing the credibility of police officers. The committee stated that “[r]eporting court decisions, even on selective topics, is consistent with the Code, but only if the reports do not compromise or appear to compromise [the judge’s] impartiality.”  To avoid conduct that a reasonable person may regard as demonstrating partiality, the committee advised, the judge’s “Tweets or retweets must be from official or neutral sources such as court websites or libraries.  [The judge] must not retweet or link to case reports from persons or organizations with legal opinions that are clearly on one side of contested and highly-charged legal issues.  Reports even by ‘mainstream media’ should be avoided, as such reports may contain commentary or reaction favoring one point of view.”
  • The committee cautioned the judge about “posts intended to reveal the existence of racism and implicit bias in the courts.” The opinion noted that “Massachusetts court leaders comment on and are taking steps to address these important concerns,” but cautioned that such “posts must serve a legitimate educational or informational purpose” and the judge “must avoid posts that individually or as a pattern would lead a reasonable person to conclude [he has] a predisposition or bias that calls [his] impartiality into question.”
  • The judge has posted, for example, “excerpts from an examination in which a defendant used profanity when addressing [a] judge and another reporting that a defendant threw bottles of urine and feces at a judge following sentencing.” The committee advised the judge to avoid posts of this nature because they detract from the dignity of the judiciary and the court system as “a reasonable person may perceive these posts to be needlessly offensive, or as making light of behavior by litigants who may have mental health problems.”
  • The judge has posted “photographs that appear to show litigants, attorneys, court personnel, and judges” in his courtroom or lobby and photos that include children. The opinion stated that privacy and safety concerns require the judge to obtain consent from any person (or from a parent, in the case of a minor) whose image he posts, unless he is “retweeting a photo that was previously disseminated to the public by the press, an organization or association of judges or lawyers, or other similar source.”
  • The opinion stated that “posts that generally reflect pride in [the judge’s] personal characteristics, background, and achievements” do not indicate personal bias or prejudice and are consistent with the code, noting “[i]t is long-settled that a judge’s gender, race, or other personal characteristics are not grounds for a reasonable person to question the judge’s ability to interpret and apply the law fairly and impartially.”

The committee emphasized that “each judge who uses Twitter or other forms of social media must, of course, consider whether the application of this advice in the judge’s individual circumstances will be consistent with the Code,” considering, for example, “whether a particular post or communication would be improper in light of cases pending before that judge and that judge’s typical caseload.”  With respect to retweets, the committee stated a judge should consider both the content and the source of the posts.  The committee also stated that, because the list of accounts the judge follows is public, the judge “must be cautious when selecting accounts to follow and avoid, for example, following the accounts of political candidates or parties.”

More Facebook fails

Based on an agreement for discipline by consent, the South Carolina Supreme Court suspended a judge for 6 months without pay for Facebook posts about a case, political matters, and a fund-raiser for a local church.  In the Matter of Johns (South Carolina Supreme Court November 16, 2016).

The judge’s Facebook account identified him as the probate court judge for Oconee County, and the account and all of his posts were accessible to all members of Facebook.

Z.H.’s parents filed a wrongful death suit on behalf of his estate against the police department.  The case was settled for $2,150,000.  Due to the public nature of the case, the settlement received extensive press coverage.

While the matter was before the probate court, the judge posted on Facebook:  “In the end it’s all about the money.  Always.  Unfortunately, I see it EVERYDAY.”  The judge later added:  “Once ck is in hand, they’ll disappear.”

The judge expressed great regret for his conduct and was sorry for any distress that it may have caused Z.H.’s family.  He recognized that, while he did not mention the estate by name, it would have been clear in the community what he was referring to.

The judge also made extensive political posts on Facebook, including ones in which he appears to endorse a presidential candidate.  He also engaged in fund-raising for a local church in a post.  The judge recognized that it was inappropriate for him to make political posts and to post information about a fund-raiser for a local church.  He has now removed reference to himself as a judge on his Facebook page.

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The Texas State Commission on Judicial Conduct publicly reprimanded a justice of the peace for Facebook posts that promoted the financial interests of a relative and a former judge, in addition to other misconduct.  Public Reprimand of Uresti and Order of Additional Education (Texas State Commission on Judicial Conduct October 11, 2016).

The judge has a public Facebook page that identifies her as:  “Yolanda Acuna Uresti – Judge Elect for JP Pct. 4 Pl. 2.”  The page includes her photo and identifies her as a “politician.”  The judge has not used privacy settings that would prevent members of the public from viewing her Facebook page.

While she was a candidate for judicial office, the judge’s Facebook page included links, photos, and posts promoting the real estate business of the judge’s daughter-in-law and promoting a former judge’s business as a wedding officiate.

In her written responses to the Commission’s inquiry, the judge denied she was identified on her Facebook page as a “politician,” despite the fact that her Facebook page expressly included the description of her as a “politician.”  The judge also denied responsibility for the Facebook posts promoting the businesses of her daughter-in-law and the former judge, claiming the posts were “illegal,” “unauthorized,” and the result of someone “hack[ing]” her Facebook page.  When asked, the judge stated she had not reported the “hacking” to the appropriate authorities.  According to the judge, none of the posts promoting these businesses were ever accessible to the general public.  Although the judge claimed to have deleted her Facebook account, it remained accessible as of the date of this sanction.

The Commission notes that at the time of the original posts, the judge was a judicial candidate and not yet a judge and it does not have jurisdiction over the pre-bench conduct of a judicial candidate.  However, it stated, the judge’s failure to remove the posts after she assumed the bench and the fact that the posts continue to be viewable by the public 16 months into her term, even after the Commission brought its concerns to her attention, constitutes a continuing violation of the canons.

When judges blog

Several judicial ethics committees have advised that a judge may maintain a blog but added caveats about being cautious and not violating the code of judicial conduct provisions relevant to communications by judges.  (Merriam-Webster’s on-line dictionary defines a “blog” as “a Web site on which someone writes about personal opinions, activities, and experiences.”)  The Arizona committee, for example, stated that a judge must ensure that no statements on her blog will negatively affect judicial proceedings, be perceived as prejudiced or biased, or necessitate frequent disqualification.  Arizona Advisory Opinion 2014-1See also New York Advisory Opinion 2010-138 (a judge may maintain an internet blog that comments on current events).

The Florida advisory committee stated that a judge could publish a blog that would alert readers to state appellate decisions as they were released because the judge did not plan to editorialize, criticize, or otherwise evaluate the opinions but only to briefly describe them.  Florida Advisory Opinion 2012-7.  Noting it had frequently approved judges’ speaking, writing, or teaching, the committee stated it would not make a distinction based on the technology used but warned the judge to exercise caution.  Acknowledging it was “not practicable to list all the provisions of the Code that could apply” and reminding the judge to expect “constant public scrutiny,” the committee directed the judge to “carefully examine all provisions of the Code that relate to the blog and its topics, to insure that the judge is not publishing on the blog something the judge could not ethically say in person.”  Finally, noting “that an interactive blog may invite inappropriate comment by the judge,” the committee suggested that the judge consider adding a disclaimer “that clarifies the judge does not endorse or vouch for the comments of others . . ., and that such comments do not represent the views of the judge.”

The Washington advisory committee stated that a judge may have a blog promoting “a more fair, just and benevolent society” and could respond to comments made by others on the essay the judge planned to post on the site.  Washington Advisory Opinion 2009-5.  The committee suggested that the judge should include a disclaimer that the opinions “are only those of the author and should not be imputed to other judges” and should describe the constraints on judges, such as the prohibitions on commenting on pending cases and discussing cases with persons appearing before the judge’s court.  The committee also advised the judge to consider:

  • “[T]he impression that may be conveyed when responding to comments that are posted on the blog;”
  • “[H]ow to tailor those comments to avoid any impression that the judicial officer’s impartiality might be called into question;” and
  • “[W]hether readers might perceive that the judge’s impartiality is impaired by the volume and content of the comments received.”

The committee recommended that the judge, if possible, review any comments from others before they are published on the blog or “regularly monitor the responses to make sure that the thread of the discussion does not change” into something that is prohibited.

The Connecticut advisory committee stated that a judge may be listed, including her judicial position, as an expert on a non-profit, non-partisan organization’s electronic “answer board” established to provide journalists with information on legal and constitutional.  Connecticut Advisory Opinion 2011-14.  However, the committee cautioned, the judge’s answers must be factual and instructive without expressing her opinion, indicating a predisposition with respect to particular cases, or providing legal advice.  The committee directed the judge to:

  • Monitor the web-site to ensure that it does not link to commercial or advocacy groups;
  • Stay abreast of new features on the site; and
  • Retain the right to review and pre-approve the use of biographical information.

See also Utah Informal Advisory Opinion 2012-1 (a judge may follow a blog on legal or political issues that is also followed by lawyers or politicians and need not continually monitor the contents and comments to prevent association with material that might reflect poorly on the judiciary); U.S. Advisory Opinion 112 (2014) (before commenting on a blog, a judge should analyze the post, comment, or blog to take into account the canons that prohibit judges from endorsing political views, demeaning the prestige of the office, commenting on issues that may arise before the court, or sending the impression that another has unique access to the court).