New Guidance for Judges and Judicial Employees Using Social Media
Posted by judicialethicsforum on Tuesday, June, 24, 2014
In addition to the recent ABA Ethics Opinion taking a generally pro-social-media tone, two new judicial ethics advisory opinions have been issued for federal and state judges.
First, for federal judges, the Committee on Codes of Conduct issued Opinion 112 in March. It generally condemns various behavior on social media (e.g., “maintaining a blog that expresses opinions on topics that are both politically sensitive and currently active, and which could potentially come before the [judge’s or judicial] employee’s own court,” “any use of a judge’s or judicial employee’s court email address to engage in social media or professional social networking,” and “‘liking’ or becoming a ‘fan’ of a political candidate or movement”). The full Opinion 112 can be found here. The link is also helpful because it contains the full text of the Committee’s opinions from the past five years.
Second, the Arizona Judicial Ethics Advisory Committee issued Opinion 14-01 in May. It examines in a fair amount of detail the ethical issues arising from LinkedIn and Facebook (among other platforms) for both judges and judicial employees. For example, it concludes that both judges and judicial employees generally should not recommend (or arguably endorse) attorneys on LinkedIn who appear in the court. Turning to Facebook, it concludes that being a Facebook friend with a lawyer does not necessitate recusal in every case involving that lawyer, but the relationship might need to be disclosed to the parties, and if the judge is actually biased or if the judge’s impartiality might reasonably be questioned, simply “defriending” the lawyer will not fix the disqualification problem. Similar to the federal opinion above, this state opinion also concludes that “a judge may not be a ‘friend’ of or ‘like’ [a legislator’s] or another judge’s reelection campaign Facebook page because Rule 4.1(A)(3) prohibits judges from endorsing another candidate for any public office.”
UPDATE: The Arizona opinion was slightly revised shortly after this post. The revised opinion can be found here. Many of the revisions are minor; probably the largest addition follows:
As to friending or liking the websites of political candidates, judicial employees other than a judge’s personal staff, courtroom clerks, and court managers may do so subject to the restrictions set forth in Rule 4.1. A judicial employee should not identify him or herself as a judicial employee in so doing and should avoid conduct that may give the impression the employee’s political activities are on behalf of the judiciary. Members of judges’ personal staff, courtroom clerks, and court managers are subject to the same political limitations as judges contained in Canon 4 of the Code of Judicial Conduct, except as provided in Rule 4.3 (Elective Judicial Department Office).
By the way, for an interesting Facebook-based disqualification case, see Chace v. Loisel, 2014 WL 258620 (Fl. Dist. Ct. App. Jan. 24, 2014). There, the judge had tried to friend a litigant on Facebook, and the litigant essentially rejected the request based on advice from the litigant’s attorney. The litigant claimed that the judge thereafter issued retaliatory rulings against her because she had rejected the judge’s friend request, and the litigant moved for disqualification. The appeals court concluded that these facts were facially sufficient to warrant disqualification.