In my prior column, I discussed the first half of the American Bar Association’s Formal Opinion 462, which was issued in February. In it, the ABA addressed the ethical issues that arise when judges use social media in two distinct situations: when interacting with lawyers and others that might appear before them in court, and during judicial campaigns. In this column, I’ll address the latter half of the opinion, which focuses on the ethics of judges using social media during election campaigns.
At the outset, the committee reviewed the applicable sections of Canon 4 of the Model Code, which cover judges’ conduct during judicial campaigns. The committee noted that judges and judicial candidates must be free, or appear to be free from political influence and pressure. But, the committee acknowledged that the code does not address, nor does it restrict, judges or their campaigns from using a particular method of communication to reach voters.
As such, judicial campaigns have moved fully into the 21st century and oftentimes take advantage of the many benefits offered by using social media sites during election campaigns. The committee explained that “(i)n jurisdictions where judges are elected, (social media) has become a campaign tool to raise campaign funds and to provide information about the candidate … (and) may be established and maintained by campaign committees to obtain public statements of support for the judge’s campaign so long as these sites are not started or maintained by the judge or judicial candidate personally.”
However, the committee cautioned that social media must be used with care given the limitations imposed by Canon 4, which prohibit judges and judicial candidates from publicly endorsing or opposing another candidate for political office.
The committee explained that because interaction on some social media sites can result in a “passive” endorsement of another candidate, it is important to fully understand the implications of interacting thereon: “Judges should be aware that clicking such buttons on others’ political campaign ESM sites could be perceived as a violation of judicial ethics rules that prohibit judges from publicly endorsing or opposing another candidate for any public office. … On the other hand, it is unlikely to raise an ethics issue for a judge if someone ‘likes’ or becomes a ‘fan’ of the judge through the judge’s ESM political campaign site if the campaign is not required to accept or reject a request in order for a name to appear on the campaign’s page.”
The committee then set forth suggested guidelines and recommendations for online interaction, emphasizing the need to have a complete understanding of the workings of each social network in order to avoid the public appearance of impropriety: “Judges may privately express their views on judicial or other candidates for political office, but must take appropriate steps to ensure that their views do not become public. … This may require managing privacy settings on ESM sites by restricting the circle of those having access to the judge’s ESM page, limiting the ability of some connections to see others, limiting who can see the contact list, or blocking a connection altogether.”
So, the good news is that the ABA gave the green light to judges using social media sites and other Web-based forums to forward their election campaigns. But, importantly, the committee stressed the need to fully understand both the ethical implications of doing so and the mechanisms and privacy settings of each platform.
Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” co-authors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at firstname.lastname@example.org.