Judges using social media: It’s an issue that’s been gaining more attention as social media permeates all aspects of our lives. In the majority of jurisdictions the ethics committees have concluded that it is generally permissible for judges to connect online with attorneys appearing before them, as long as the judges are careful to avoid the appearance of impropriety, avoid ex parte communications, and otherwise ensure compliance with applicable ethical rules, (see, 2009 Advisory Opinion 08-176 of the New York Advisory Committee on Judicial Ethics, the Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline Opinion 2010-7, and the 2010 Ethics Committee of the Kentucky Judiciary Opinion JE-119, American Bar Association Formal Opinion 462).
A handful of jurisdictions have come down on the other side of this issue, however, see, for example, California Judicial Ethics Committee Opinion Number 66 (judges may “friend” attorneys, but must “unfriend” those who appear before them and after doing so, must notify all parties of the “unfriending”); Florida Supreme Court Judicial Ethics Advisory Opinion 2009-20 (judges may join and participate on Facebook, but becoming “friends” with attorneys who may appear before them is impermissible); and Pierre Domville v. State of Florida, No. 4D12-556 (required judge, who was Facebook “friends” with the prosecutor in a case pending before the judge, to recuse himself.)
In January, the North Carolina State Bar Association joined the majority of jurisdictions on this issue when it handed down 2014 Formal Ethics Opinion 8. At issue in this case was whether lawyers and judges with LinkedIn profiles could connect with each other and then issue endorsements and/or recommendations on each other’s profile page.
At the outset, the committee determined that lawyers and judges can connect with each other on LinkedIn, noting that social media interactions are no different than offline interactions: “Interactions with judges using social media are evaluated in the same manner as personal interactions with a judge, such as an invitation to dinner. In certain scenarios, a lawyer may accept a judge’s dinner invitation. Similarly, in certain scenarios, a lawyer may accept a LinkedIn invitation to connect from a judge. However, if a lawyer represents clients in proceedings before a judge, the lawyer is subject to the following duties: to avoid conduct prejudicial to the administration of justice; to not state or imply an ability to influence improperly a government agency or official; and to avoid ex parte communications with a judge regarding a legal matter or issue the judge is considering. See Rule 3.5 and Rule 8.4. These duties may require the lawyer to decline a judge’s invitation to connect on LinkedIn.”
The committee then addressed the issue of endorsements and recommendations and concluded that while lawyers may endorse or recommend judges, judges may not do that same for lawyers: “Displaying an endorsement or recommendation from a judge on a lawyer’s profile page would create the appearance of judicial partiality and the lawyer must decline, see Rule 8.4(e).” Furthermore, according to the committee, any endorsements or recommendations made by the judge prior to becoming a judge must be removed from an attorney’s LinkedIn profile as long as the attorney “knows, or reasonably should know, that Lawyer B has become a judge.”
The committee also opined on whether lawyers may accept recommendations or endorsements from colleagues who are not judges, explaining that it was permissible to do so as long as “the content of the endorsement or recommendation is truthful and not misleading.”
Finally, the committee extended its holding to “any social media application that allows public display of connections, endorsements, or recommendations between lawyers and judges.”
All in all, this was a solid decision. The committee made sound comparisons to offline interactions resulting in a well-reasoned decision that provides lawyers and judges with practical guidance for their online interactions.
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,” coauthors 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 email@example.com.