judges may "friend" attorneys on social networks who appear before them in
court. Judicial ethics advisory committees are split on the issue.
Those committees that disapprove the practice draw a bright line that emphasizes the appearance of influence and impartiality that may be created if judges are connected online with some of the attorneys who appear before them but not with others. Although not mentioned in these opinions, another consideration is the impact on the appearance of fairness if a judge is "friends" with an attorney on Facebook, for example, but ignores the "friend" request of the attorney's self-represented opponent in a case, a very likely scenario in light of the number of pro se litigants in the courts.
The committees that have issued less restrictive opinions believe the distinctive meaning of "friend" on social networks, which reasonable people with knowledge of these sites would understand, neutralizes the appearance problem. These opinions also see no reason to treat online friendships differently than the relationships with attorneys that judges are allowed to maintain in the real world. (This advice raises the possibility that attorneys will begin automatically and routinely starting online connections with judges as soon as their cases are assigned regardless whether they have any prior connection to the judges.) Most of these opinions do not pre-approve all social media connections between judges and attorneys who appear before them, leaving to judges the fact-specific inquiry necessary to determine whom to connect with and whether the connection requires disqualification.
Regardless whether a bright line is required by the code of judicial conduct, prudence suggests that, as a best practice, judges should take whatever steps are necessary and possible to prevent their use of social media from blurring the line between their personal and judicial lives, which could damage the privacy of one and the integrity of the other. One solution is for a judge to create separate online identities, one with a focus on her personal life, downplaying her judicial role, and one with the goal of public outreach on behalf of the court, rather than socializing. A third might be necessary for her campaign if she has to run for election or retention. There are many ways to accomplish this, with the exact mechanism for doing so varying depending on the site or sites a judge chooses to use.
On the personal side, the judge should be very selective about her connections (excluding those likely to appear before her) but less strict, although still cautious, about what she posts and "likes." In contrast, on the court-centric page, she would have to be very careful about what is included to maintain judicial dignity and impartiality without abusing the prestige of office but could, for example, post court news and decisions in high-profile cases, remind users of changes in court rules or hours, welcome new judges, and announce her appearance at community meetings to discuss the role of the judiciary. This page should be inclusive and set up so any attorney and all members of the public could follow along without the judge having to pick and choose.
Regardless how she decides to formulate her online presence, there are numerous do's and don'ts a judge should keep in mind while navigating social networks:
* Do assume everything you say and do on a social network can become public
* Do educate yourself about the policies and privacy controls of the sites and update your settings every time there is a change
* Do keep track of the contents of your page
* Do consider the recusal implications of social networking
* Don't engage in ex parte communications
* Do immediately disconnect from anyone who attempts an ex parte communication with you
* Don't conduct independent investigations or view litigants' pages
* Don't provide legal advice
* Don't comment on pending cases or allow others to do so
* Do provide guidance to court staff about social media use
* Don't access social networks while on bench
* Do be dignified in every comment, photograph, and status update
* Don't allow others to make demeaning or offensive posts that will appear on your page
* Don't join online groups for organizations that practice invidious discrimination
* Don't join a group if a relationship with that group would erode confidence in the independence and impartiality of judicial decision making
* Do comply with restrictions on political conduct while on social networks
* Do consider closing online accounts if problems arise
Courts and judicial educators could provide appropriate training or assistance to familiarize judges with the technological aspects of social media.
Social media use is fraught with peril for all users, but more so for judges as it complicates both their personal lives and judicial roles. A judge cannot be a casual user of social media and must be willing to take whatever steps are necessary to comply with the code of judicial conduct. Each judge will have to decide for himself or herself if the benefits of online social media outweigh the inevitable risks and constant vigilance.
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