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FRIEND REQUEST DENIED: JUDICIAL ETHICS
AND SOCIAL MEDIA
Shaziah Singh
ABSTRACT
Social media sites such as Facebook, Twitter, and LinkedIn have
revolutionized our social lives and dominate the way we communicate with
each other. Whether it comes to personal or professional use, social media
platforms come with a multitude of complications. What to post, whom to
“friend,” whom to share information with, and what job updates to share
are just some of the problems social media users face daily. These
complications are only multiplied for judges. A judge’s unique position to
influence makes what constitutes acceptable social media usage much
more complex. With almost 1.5 billion users on Facebook and 300 million
users on LinkedIn, the chances of what you post on social media being seen
are extremely high. This is something that judges must keep in mind. Social
media usage has blurred the lines of acceptable judicial conduct on the
Internet. While the American Bar Association and certain jurisdictions
have provided some advisory opinions on what constitutes acceptable
judicial conduct on social media platforms, the opinions are not uniform
and provide little advice. This note addresses this problem and provides
guidance for judges on what should constitute acceptable social media
usage.
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INTRODUCTION
A family court judge accepts a Facebook friend request from a social
worker that regularly appears before him. A trial court judge endorses on
LinkedIn the skills of a former law clerk. A juvenile court judge Facebook
friends young delinquents who have appeared in his court to keep an eye
on their activities. A judge accepts a friend request from an attorney whom
the judge has met at bar association events. The attorney has not yet
appeared in the judge’s courtroom, but possibly could. Are these
associations on social media acceptable? Do these actions violate a judge’s
duties to maintain impartiality and avoid impropriety or the appearance of
impropriety? What, if any, judicial canons and rules of professional
conduct may be implicated as a result of these relationships? With the
recent increase of social media usage, the answers to these questions and
what constitutes acceptable associations between judges and individuals
who appear or may appear in their courtrooms have become murky.
This note will focus primarily on judges’ use of the social media sites
Facebook and LinkedIn and will provide judges with useful guidelines and
recommendations for proper social media usage. Part I of this note will
give background information on Facebook and LinkedIn. Part II will
discuss the different judicial canons and ethical rules that may be
implicated by social media usage. Part III will discuss the recent advisory
opinions and jurisdictional variations on the topic. Part IV will contain my
recommendations and guidelines for judicial use of social media.
I. BACKGROUND
Social media platforms have inundated every aspect our lives. Most of
the world has heard of social media sites such as, Facebook, LinkedIn,
MySpace, and Twitter. Social media platforms such as these allow their
users to create profiles in order to share information with other users on the
site, often called “friends,” “followers,” or “links.” Sites like Facebook and
LinkedIn create “networks of individuals, events, groups and/or
organizations with shared relationships, interests or activities.”
1
A. Facebook
Facebook allows users to do things such as, “friend”
2
other users; add
photo albums; post status updates; and share relationship connections,
interests in movies, music, and television shows. Individuals can adjust
their privacy settings to control what information their Facebook and non-
Facebook friends can see on their page. Some additional privacy settings
1. Karen Salaz et al., New Media and the Courts: The Current Status and a Look at
the Future, 28 (2010).
2. The term “friend” will be used throughout the note. “Friend” in regards to
Facebook refers to the virtual online connections of two individuals through the
site.
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Friend Request Denied: Judicial Ethics and Social Media
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include controlling whether your name can be searched on Facebook,
whether people can message you on Facebook, and whether people can
request to friend you. Essentially, individuals can arrange their Facebook
account so that all access is restricted to only those whom they wish to
know about the account.
There are over 1.39 billion monthly active Facebook users worldwide.
3
While Facebook membership still skews towards a younger population, the
45-to-54-year-old age group has seen a 46% growth in Facebook usage
since the end of 2012.
4
Facebook use has not only increased among the
general population, but the legal field has also seen an increase in usage.
Forty percent of judges report that they use social media sites, with a
majority of these judges using Facebook.
5
Eighty-five percent of lawyers
report that they use Facebook for personal use.
6
Twenty-six percent of
individual lawyers and thirty-four percent of law firms use Facebook for
professional purposes.
7
More and more professionals are pointing out the
benefits to those in the legal field of using social media. These benefits
include lawyers being able to “network for referrals, research defendants
and potential jury members, market their law firms, and vet potential legal
hires and current associates.”
8
While Facebook seems to be the most
popular social media network, other networks, such as LinkedIn, are
gaining traction.
B. LinkedIn
LinkedIn is most commonly known as a professional networking site.
LinkedIn has over 300 million users.
9
Fifty-six percent of law firms
reported using LinkedIn for firm business in 2014.
10
Executives, experts,
professionals, current students, and recent graduates join LinkedIn to
network, develop business opportunities, collaborate on projects, share job
opportunities, and make new connections. LinkedIn users have profiles,
3. Dan Noyes, The Top 20 Valuable Facebook Statistics, ZEPHORIA INTERNET
MARKETING SOLUTIONS (Feb. 10, 2015), https://zephoria.com/social-media/top-15-
valuable-facebook-statistics.
4. Cooper Smith, 7 Statistics About Facebook Users That Reveal Why It's Such A
Powerful Marketing Platform, BUSINESS INSIDER (November 13, 2015),
http://www.businessinsider.com/a-primer-on-facebook-demographics-2013-10.
5. SALAZ ET AL., supra note 1, at 66.
6. Allison Shields, Blogging and Social Media, AMERICAN BAR ASSOCIATION (2014),
http://www.americanbar.org/publications/techreport/2014/blogging-and-social-
media.html.
7. Id.
8. Leora Maccabee, Facebook 101: why lawyers should be on Facebook, LAWYERIST
(April 23, 2009), https://lawyerist.com/1970/facebook-101-why-lawyers-should-
be-on-facebook.
9. Kurt Wagner, LinkedIn Hits 300 Million Users Amid Mobile Push, MASHABLE
(April 18, 2014), http://mashable.com/2014/04/18/linkedin-300-million-users.
10. Allison Shields, Blogging and Social Media, AMERICAN BAR ASSOCIATION (2014),
http://www.americanbar.org/publications/techreport/2014/blogging-and-social-
media.html.
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which allow them to share headshots, past jobs, current employment,
expertise, accomplishments, and articles that are of interest to them.
11
Additionally, LinkedIn allows your “first-degree connections”
12
to
“endorse”
13
certain skills you may have such as, proficiency at Microsoft
Word or PowerPoint, research and writing, and public speaking. LinkedIn
also allows individuals to write recommendations for their first-degree
connections that appear on that connection’s page for anyone who has
access to that connection’s page to see. Furthermore, LinkedIn, like
Facebook, allows for certain privacy settings. You can turn on or off your
activity broadcasts;
14
select which connections can see your activity; select
what others see when you have viewed their profile
15
; select who can see
your connections; choose who can follow your updates; and change your
profile photo visibility. Like Facebook, LinkedIn allows users to make their
profiles and activity as public or private as they wish.
II. CANONS AND RULES IMPLICATED
Social media use can create circumstances where a judge may violate
one of the Judicial Canons. Three different Judicial Canons along with
certain rules of judicial conduct could be violated by a judge’s careless use
of social media.
A. Canon 1
Canon 1 of the Model Code of Judicial Conduct states that “a judge
shall uphold and promote the independence, integrity, and impartiality of
the judiciary, and shall avoid impropriety and the appearance of
impropriety.”
16
A judge being a Facebook friend with a lawyer who has a
case pending before his court or with a law enforcement officer involved in
the investigation of a criminal case could create the appearance of
impropriety. It may look to the public like the judge could not be impartial
in the case because of the apparent relationship with that lawyer or law
11. SALAZ ET AL., supra note 1, at 29.
12. First-degree connections are with those to whom you are directly connected. A
second-degree connection would be someone to whom you are not personally
connected but who is connected to one of your first-degree connections.
13. You can endorse a first-degree connection’s skills on LinkedIn by visiting that
connection’s page and clicking “endorse” and picking specific skills that person
has listed they possess to endorse. Once you have endorsed a skill, your name and
profile picture will appear along with everyone else who has endorsed that
particular skill in that person’s “Skills” section.
14. The LinkedIn homepage functions much like the Facebook newsfeed, which
allows users to see their connections activity on the site. This activity includes
things like updating a new job, posting an article or opinion, adding a new resume,
and changing profile pictures. Users’ activity can be seen by all of their first-
degree connections.
15. LinkedIn allows others to see who have viewed their profile, unless the viewer has
specifically changed the privacy settings to indicate an anonymous viewer.
16. ABA MODEL CODE OF JUDICIAL CONDUCT Canon 1 (2011).
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enforcement officer. Rule 1.2 of the Model Code of Judicial Conduct states
that a “judge shall act at all times in a manner that promotes public
confidence in the independence, integrity, and impartiality of the judiciary,
and shall avoid impropriety and the appearance of impropriety.”
17
How can
the public be confident that a judge is independent and impartial when that
judge is friends on Facebook with the lawyers or law enforcement officers
involved in pending cases? Rule 1.3 states that a judge shall not abuse the
prestige of judicial office to advance the personal or economic interests of
the judge or others, or allow others to do so.
18
If a judge endorses a
lawyer’s skills or writes a recommendation for a lawyer on LinkedIn, that
lawyer may benefit economically or personally from potential employers
seeing that the judge, a person of power, endorsed or recommended that
lawyer, thereby inducing the potential employer to hire said lawyer.
B. Canon 2
Canon 2 of the Model Code of Judicial Conduct states, “a judge shall
perform the duties of judicial office impartially, competently, and
diligently.”
19
A judge’s impartiality is subject to question if he or she is
engaged in ex parte communications over Facebook messenger with an
attorney involved in a pending case before that judge. This activity would
also violate Rule 2.2, which states, “a judge shall uphold and apply the law,
and shall perform all duties of judicial office fairly and impartially.”
20
Additionally, a judge’s connection to an attorney on Facebook or LinkedIn
could violate Rule 2.4(c), which prevents judges from conveying or
permitting others to convey the impression that any person or organization
is in a position to influence the judge.
21
If a judge takes an online social
media relationship one step further by communicating over the social
media platform with an attorney about a case that attorney has pending
before him, the judge would be violating Rule 2.9 against ex parte
communications.
22
Another rule implicated is Rule 2.10, which states, “a
judge shall not make any public statement that might reasonably be
expected to affect the outcome or impair the fairness of a matter pending or
impending in any court, or make any nonpublic statement that might
substantially interfere with a fair trial or hearing.”
23
A judge posting a
status giving his opinion on a case or posting an article about a case on
Facebook or LinkedIn could violate this rule because all of the judge’s
connections would be able to see this activity. Additionally, judges should
be wary of Rule 2.11, which prescribes when judges must disqualify
17. ABA MODEL CODE OF JUDICIAL CONDUCT Rule 1.2 (2011).
18. ABA MODEL CODE OF JUDICIAL CONDUCT Rule 1.3 (2011).
19. ABA MODEL CODE OF JUDICIAL CONDUCT Canon 2 (2011).
20. ABA MODEL CODE OF JUDICIAL CONDUCT Rule 2.2 (2011).
21. ABA MODEL CODE OF JUDICIAL CONDUCT Rule 2.4(c) (2011).
22. ABA MODEL CODE OF JUDICIAL CONDUCT Rule 2.9 (2011).
23. ABA MODEL CODE OF JUDICIAL CONDUCT Rule 2.10 (2011).
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themselves.
24
A judge is supposed to disqualify himself in “any proceeding
in which the judge’s impartiality might reasonably be questioned.”
25
A
judge’s impartiality could be questioned as a result of the connections he or
she maintains on social media sites. Judges should also be careful not to
take part in activities that would warrant frequent disqualification.
26
C. Canon 3
Canon 3 of the Model Code of Judicial Conduct states, “a judge shall
conduct the judge’s personal and extrajudicial activities to minimize the
risk of conflict with the obligations of judicial office.”
27
At issue are
specific provisions within Rule 3.1, which regulate extrajudicial activities
in general. Judges are not to participate in activities that would lead to
frequent disqualification of the judge;
28
participate in activities that would
appear to a reasonable person to undermine the judge’s independence,
integrity, or impartiality;
29
or engage in conduct that would appear to a
reasonable person to be coercive.
30
All of these provisions could easily be
violated from improper judicial use of social networking sites. To help
come up with a working guideline that judges can use when trying to
decide what activity may be proper on social media, we must look at what
other jurisdictions are doing.
III. CURRENT APPLICATION
Eleven states, along with the American Bar Association (“ABA”),
have issued advisory ethics opinions examining and advising on the
judicial use of social media sites. The opinions offer varied guidance on
what conduct is permitted and on what sites. Several states have also
decided disciplinary actions against judges relating to social media use.
The analysis, which follows, will break up the different opinions and
disciplinary actions into strict, moderate, and liberal approaches to
acceptable judicial use of social media sites.
A. Strict Approaches
Several states take a strict approach to judicial use of social media.
States like Florida, Oklahoma, and Massachusetts forbid judges from
connecting with people on Facebook or LinkedIn who may appear in their
courtroom. The states vary on whether this prohibition just applies to
24. ABA MODEL CODE OF JUDICIAL CONDUCT Rule 2.11 (2011).
25. Id.
26. ABA MODEL CODE OF JUDICIAL CONDUCT Rule 3.1(b) (2011).
27. ABA MODEL CODE OF JUDICIAL CONDUCT Canon 3 (2011).
28. ABA MODEL CODE OF JUDICIAL CONDUCT Rule 3.1(b) (2011).
29. ABA MODEL CODE OF JUDICIAL CONDUCT Rule 3.1(c) (2011).
30. ABA MODEL CODE OF JUDICIAL CONDUCT Rule 3.1(d) (2011).
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adding lawyers or anyone who may appear in the judge’s courtroom, such
as law enforcement officers and social workers.
1. Florida
Florida prohibits judges from adding lawyers who may appear before
them as friends on any networking sites, such as Facebook.
31
The Florida
Professional Ethics Committee issued an opinion stating that “lawyers who
may appear before the judge as ‘friends’ on a judge's social networking
page reasonably conveys to others the impression that these lawyer
‘friends’ are in a special position to influence the ‘judge’ and that therefore
these connections should not be permitted.”
32
The committee noted that
many people who view these social media pages are not aware of the
judicial code and of rules of judicial conduct, which prohibit impartiality
and impropriety in the courtroom.
33
The committee looked to Florida’s
Code of Judicial Conduct Canon 2(B) which in part states that a judge shall
not “convey or permit others to convey the impression that they are in a
special position to influence the judge.”
34
This rule is the same as Rule
2.4(c) in the Model Code of Judicial Ethics. The committee stated that the
test for whether Canon 2(B) is violated is “not whether the judge intends to
convey the impression that another person is in a position to influence the
judge, but rather whether the message conveyed to others, as viewed by the
recipient, conveys the impression that someone is in a special position to
influence the judge.”
35
Using this test, the committee concluded that being
able to view these social connections on the Internet violated Canon 2(B).
36
2. Massachusetts
Like Florida, Massachusetts prohibits judges from associating in any
way on social networking sites with attorneys who may appear before
them; however, Massachusetts states that judges should not be restricted
from having social media accounts, such as Facebook.
37
The Massachusetts
Committee on Judicial Ethics came up with a bright-line test, which
requires that judges recuse themselves when attorneys whom they have
“friended” appear before them.
38
The committee pointed specifically to
Section 2(B) of the Massachusetts Judicial Code of Ethics, which states
that "[a] judge shall not lend the prestige of judicial office to advance the
private interests of the judge or others; nor shall a judge convey or permit
others to convey the impression that they are in a special position to
31. Fla. Sup. Ct., Ethics Advisory Comm., Op. 2009-20 (November 2009).
32. Id.
33. Id.
34. FLA. MODEL CODE OF JUDICIAL CONDUCT Canon 2(B).
35. Id.
36. Id.
37. Mass. Comm. on Judicial Ethics, Op. 2011-6 (Dec. 28, 2011).
38. Id.
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influence the judge."
39
This section of the Massachusetts Judicial Code is
the same as Florida’s Canon 2(B) analysis and Rules 1.3 and 2.4(c) of the
Model Code of Judicial Conduct.
3. Oklahoma
Oklahoma takes the restriction one step further than Florida and
Massachusetts by stating that judges can have social media accounts, but
cannot “friend” or “link” law enforcement officers, social workers,
attorneys, and others who may appear in their court in an adversarial role.
40
Like Florida and Massachusetts, the Oklahoma Judicial Ethics Advisory
Panel pointed to the judicial canon that prohibits judges “from conveying
an impression, or allow[ing] others to convey the impression, that a person
is in a special position to influence the judge.”
41
The panel also emphasized
that it does not matter whether the social connections would really mean
that the party was actually in a special position to influence the judge.
42
What matters is that the social connection “could convey that
impression.”
43
The panel explained it was necessary to err on the side of
caution as they believed that public trust in the impartiality and fairness of
the judicial system was the most important consideration.
44
In response to
the argument that these rules may be too restrictive on the rights and
privileges of judges, the panel stated that judges should freely and
“voluntarily accept restrictions on the judge’s conduct that might be viewed
as burdensome by the ordinary citizen.”
45
B. Moderate Approaches
Several states that have spoken on the matter take a more moderate
approach. The states that fall in the middle agree that judges are allowed to
have social media sites and only restrict judges from “friending” lawyers
who have cases pending before them in their court. Rather than just looking
at the fact that the judge is connected to a lawyer on a social media, these
states take a more in depth look into the connections and the judge’s social
media site. These states include California, Arizona, Utah, Texas, North
Carolina, and Florida.
1. California
California allows judges to be members of social media sites but does
not allow judges to have social media connections with lawyers who have
39. Id.
40. Okla. Judicial Ethics Advisory Panel Op. 2011-3 (July 6, 2011).
41. Id.
42. Id.
43. Judicial Ethics Opinion 2011-3, 2011 OK JUD ETH, ¶8.
44. Id. at ¶9.
45. Id. at ¶10.
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cases pending before them.
46
When asked whether judges may add lawyers
on social media who may appear before the judge in court, the California
Judges Association answered with a qualified “yes.”
47
The association uses
several factors to decide whether it is permissible for a judge to interact
with an attorney on a social media site.
48
First, the association looks to the
nature of the networking site.
49
“The more personal the nature of the page,
the greater the likelihood that including an attorney would create the
appearance that the attorney would be in a special position to influence the
judge, or cast doubt on the judge’s ability to act impartially.”
50
The second
factor to consider is the number of friends on the page.
51
The association
reasoned that the more friends a judge has on the page, “the less likely it is
that someone could perceive that any individual friend is in a position to
influence the judge.”
52
A judge with hundreds of attorney Facebook friends
is less troublesome than a judge with ten attorney Facebook friends. Third,
the association looks to the judge’s practice in determining whom to
include, stating that “the more inclusive the page, the less likely it is to
create the impression that any individual member is in a special position to
influence the judge.”
53
The last factor to consider is how regularly the
attorney appears before the judge.
54
“If the likelihood that the attorney will
actually appear before the judge is low, the more likely it is that the social
media connection would be permissible.”
55
The association’s rationale for its qualified “yes” answer emphasizes
that, just as judges may join social and civic organizations that include
attorneys who may appear before them, the same considerations apply to
interacting with lawyers in a virtual medium on social media networks.
56
However, the association commented that it was important to note “a
judge’s interactions on social media with attorneys who may appear before
that judge will very often create appearances that would violate the
Canons.”
57
2. Arizona
The Arizona Supreme Court Judicial Ethics Advisory Committee has
created separate rules for appropriate Facebook and LinkedIn activity.
58
The committee states that a judge cannot recommend a lawyer on LinkedIn
46. Cal. Judges Ass'n Judicial Ethics Committee, Op. 66 (2011) at 11.
47. Id.
48. Id. at 7.
49. Id. at 8.
50. Id.
51. Id.
52. Id.
53. Id.
54. Id.
55. Id.
56. Id. at 7.
57. Id.
58. See generally Ariz. Sup. Ct. Judicial Ethics Advisory Comm. Op. 14-01 (2014).
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who regularly appears in his court.
59
The committee reasoned that such
activity violates Rule 1.2, a prohibition on creating the appearance of
impartiality, and Rule 1.3, which states that judges cannot use the prestige
of judicial office to advance their personal or economic interests.
60
The opinion states that when it comes to Facebook, there is no “per se
disqualification requirement” when someone who appears in the judge’s
court is connected with the judge on Facebook.
61
However, the opinion
urges judges to be careful not to violate Rule 3.1(b), which states that
judges must “avoid activities that will lead to frequent disqualification.”
62
The opinion states that another option is for judges to disclose the social
media connection to the parties and then have the parties decide whether to
ask for recusal; however, if the judge’s impartiality could be reasonably
questioned, then he does have to recuse himself from the case.
63
Additionally, in Arizona judges cannot be friends with law enforcement
officers on social media sites.
64
The committee also set out guidelines for
judges dealing with elected officials on Facebook.
65
The opinion states that
a judge can be the Facebook friend of an already elected official, but if the
individual is currently running for office, then the judge cannot be a
Facebook friend with that individual.
66
Furthermore, a judge cannot be a
Facebook friend with or like another judge’s reelection campaign Facebook
page.
67
3. Utah
The Utah Ethics Advisory Committee’s opinion provides an in depth
analysis as to which modes of social media use are acceptable, dealing both
with Facebook and LinkedIn. When asked whether a judge may be
Facebook friends or accept friend requests from lawyers who appear before
the judge, the committee says yes.
68
The opinion stated,
Being friends with someone is not a
violation of the Code of Judicial
Conduct. Furthermore, the designation of
someone as a “friend” on a website such
as Facebook does not indicate that the
person is a friend under the usual
understanding of the term. Many
Facebook users have hundreds and even
59. Id. at 2.
60. Id.
61. Id. at 4.
62. Id.
63. Id. at 5.
64. Id.
65. Id.
66. Id.
67. Id.
68. Utah Ethics Advisory Comm. Informal Op. 12-01 (August 31, 2012).
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thousands of “friends.” Whether
someone is truly a friend depends on the
frequency and the substance of contact,
and not on an appellation created by a
website for users to identify those who
are known to the user.
69
The opinion went on to state that judges do not necessarily need to
recuse themselves from a case just because they are Facebook friends with
a lawyer on the case and that further inquiry is needed before recusal is
warranted.
70
The opinion stated that “being a ‘friend’ of a judge on
Facebook does not automatically create the appearance that the lawyer is in
a special position to influence the judge.”
71
The opinion compared a
judge’s interactions with a lawyer on Facebook to any other interaction
between a judge and a lawyer in public and private settings.
72
There are
always countless opportunities for misconduct, but just because there is an
opportunity for misconduct does not “necessarily create, or appear to
create, special positions of influence.”
73
Being Facebook friends is just one
of the factors to consider when deciding if recusal is necessary.
74
Another
factor to consider is how frequently the lawyer and judge interact on
Facebook.
75
If the interactions are more frequent, then that may warrant
recusal because “by communicating frequently, a judge may create the
appearance that the lawyer has a special position in relation to the judge.”
76
Utah also allows judges to be “friends” with elected officials and
individuals running for office on Facebook.
77
When it comes to LinkedIn, the rules are a little more complicated.
When asked whether a judge can recommend someone on LinkedIn either
at the judge’s initiation or at the individual’s request, the committee
answered with a maybe.
78
According to the opinion, a judge is not
automatically prohibited from recommending someone on LinkedIn;
however, a judge may not recommend someone who regularly appears
before the judge.
79
The opinion explains that that a recommendation on
LinkedIn is different from liking an attorney’s Facebook page or being
friends with the attorney on Facebook because the recommendation can be
perceived as an endorsement.
80
“LinkedIn is a professional networking site
and the purpose of recommendations is to promote the professional careers
69. Id.
70. Id.
71. Id.
72. Id.
73. Id.
74. Id.
75. Id.
76. Id.
77. Id.
78. Id.
79. Id.
80. Id.
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of members.”
81
Judges are, however, allowed to recommend someone who
has worked for the judge, such as a law clerk.
82
4. Texas
While Texas does not have a formal ethics opinion addressing judicial
use of social media, Texas has a few cases that demonstrate its moderate
stance on the subject. In 2013, a Texas appellate court held that a trial court
did not err by denying a defendant's motion for a new trial based on alleged
judicial bias due to the fact that the trial judge was friends with the victim's
father on a social media website.
83
The court stated that evidence of a
social media connection, with no other context, provided no insight into
any relationship that would influence the trial judge.
84
Another case in 2013 involved the reprimanding of Judge Lee Johnson
who wrote a Facebook status mocking Johnny Manziel after the Heisman
Trophy winner was given a speeding ticket in Ennis, Texas.
85
Judge
Johnson was a judge in Ennis.
86
Judge Johnson wrote:
Too funny. So it seems that a certain
unnamed (very) recent Heisman Trophy
winner from a certain unnamed “college”
down south of here got a gift from the
Ennis P.D. while he was speeding on the
287 bypass yesterday. It appears that
even though the OU defense couldn't
stop him, the City of Ennis P.D. is a
different story altogether. Time to grow
up/slow down young 'un. You got your
whole life/career ahead of you. Gig Em
indeed.
87
While the Judge did not mention Manziel by his name, his comment
left no doubt as to whom he was referring to. In a separate comment under
his Facebook status, Judge Johnson then added: “I meant to say ‘allegedly’
81. Id.
82. Id.
83. Id.
84. Youkers v. State, 400 S.W.3d 200, 203 (Tex. Ct. App. 2013).
85. Graham Watson, Dallas-area judge receives a reprimand for mocking Johnny
Manziel’s speeding ticket, YAHOO! SPORTS (Jan. 21, 2013),
http://sports.yahoo.com/blogs/ncaaf-dr-saturday/dallas-area-judge-receives-
reprimand-mocking-johnny-manziel-205653435--ncaaf.html (last visited May 7,
2015).
86. Id.
87. Paul Myerberg, Texas judge posts on Facebook about Manziel's speeding ticket,
USA TODAY SPORTS (Jan. 17, 2013),
http://www.usatoday.com/story/gameon/2013/01/17/judge-texas-manziel-ticket-
facebook/1842877/ (last visited May 7, 2015).
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speeding. My bad.” Judge Johnson received a public reprimand as a result
of his actions.
A more recent case in April of 2015 in Texas has a judge in hot water
for posting Facebook updates about her trials.
88
The Texas State
Commission on Judicial Conduct ordered Judge Michelle Slaughter to
enroll in a four-hour class on the proper and ethical use of social media by
judges.
89
The panel concluded that the Judge's posts cast reasonable doubt
on her impartiality.
90
The case the Judge was presiding over was a high-
profile trial where a father was accused of keeping his nine-year-old son in
six-foot by eight-foot wooden box.
91
While the Judge instructed jurors not
to discuss the case with anyone including texting, e-mailing, talking in
person or on the phone or on Facebook, the Judge failed to do the same.
92
The Judge’s Facebook updates about the case eventually led to her removal
from the case and a mistrial.
93
The panel noted that the Judge’s comment
about the case “went beyond providing an explanation of the procedures of
the court and highlighted evidence that had yet to be introduced at trial."
94
The Judge also posted a Reuters article about the case, stating that it was an
objective story about the case.
95
The panel in its ruling stated that “[j]udges
have a duty to decide every case fairly and impartially. Judicial
independence, impartiality, and integrity must be seen in order for the
public to have confidence in the legal system.”
96
5. North Carolina
North Carolina, like Texas, has no formal ethics opinions on judicial
use of social media. North Carolina does have one case that suggests it
takes a middle of the road approach. In this case, Judge B. Carlton Terry Jr.
was publicly reprimanded by the North Carolina Judicial Standards
Commission for Facebook friending a lawyer in a pending case and posting
and reading messages about the litigation.
97
The commission stated that the
ex parte communications and the independent gathering of information
indicated a disregard of the principles of judicial conduct.
98
88. David Kravets, Texas admonishes judge for posting Facebook updates about her
trials, ARS TECHNICA (April 27, 2015), http://arstechnica.com/tech-
policy/2015/04/27/texas-admonishes-judge-for-posting-facebook-updates-about-
her-trials/ (last visited May 7, 2015).
89. Id.
90. Id.
91. Id.
92. Id.
93. Id.
94. Id.
95. Id.
96. Id.
97. Debra Cassens Weiss, Judge Reprimanded for Friending Lawyer and Googling
Litigant, ABA JOURNAL (June 1, 2009),
http://www.abajournal.com/news/article/judge_reprimanded_for_friending_lawyer
_and_googling_litigant/ (last visited May 7, 2015).
98. Id.
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6. Florida
In Florida, it is generally accepted that a judge's social networking
connection with an attorney in a pending case before that judge is sufficient
to create a well-founded fear of not receiving a fair and impartial trial.
99
A
Florida appellate court recently dealt with this generally accepted rule
when deciding whether disqualification of a judge was warranted for
Facebook friending a party in a pending case.
100
The court expressed
reservations regarding the rule, stating that the word "friend" on Facebook
is a term of art.
101
The court stated that just because a virtual friendship
exists “does not necessarily signify the existence of a close relationship.
Other than the public nature of the Internet, there is no difference between
a Facebook ‘friend’ and any other friendship a judge might have.”
102
Despite its reservations the court went along with the precedent and stated
that the judge’s actions could warrant disqualification.
103
In the court’s
view, friending a party in a pending case raises far more concern than a
judge's Facebook friendship with a lawyer.
104
The court stated that a
judge’s effort to initiate ex parte communications over the social media site
was a violation of the Code of Judicial Conduct and that judges must avoid
the appearance of partiality.
105
C. Liberal Approaches
A majority of the states that address judicial use of social media take a
more liberal approach in stating that there is no conflict created from solely
the existence of a social media connection between a judge and a lawyer.
Many of these states agree that more factors need to be considered when
looking at whether a social media connection is appropriate and whether
such a connection would warrant recusal. These states include Maryland,
New York, Kentucky, Ohio, South Carolina, Georgia, and Tennessee.
Furthermore, the ABA itself takes a liberal stance on the matter by stating
that judges may be connected on social media with lawyers who have cases
pending before them as long as the judges comply with the Code of
Judicial Conduct.
1. Maryland
The Maryland Judicial Ethics Committee states that a connection
between a judge and a lawyer on a social media platform does not create a
99. Domville v. State, 103 So. 3d 184, 186 (Fla. Dist. Ct. App. 2012).
100. Chace v. Loisel, No. 5D13-4449, 2014 Fla. App. LEXIS 750, at *1 (Fla. Dist. Ct.
App. 2014).
101. Id. at 4.
102. Id.
103. Id. at 6.
104. Id. at 5.
105. Id. at 6.
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conflict in and of itself.
106
Judges are allowed to have friends and personal
relationships in non-virtual life, so the committee saw no reason why
Facebook friends should be treated differently, providing that none of the
other rules of judicial conduct are violated.
107
However, the committee
expressed concern “that being designated as a friend of a judge on a social
networking site may be perceived as indicating both that the person is in a
position to influence the judge, and may have ex parte communications
with the judge via that medium.”
108
The Maryland opinion urges judges to
proceed with care due to the possibility of violating the Judicial Code of
Conduct.
109
2. New York
When asked whether it was appropriate for a judge to join a social
networking site, the New York Advisory Committee on Judicial Ethics
stated that there was nothing “inherently inappropriate” about a judge
joining and using a social media site.
110
However, the committee did
caution that “[w]hat a judge posts on his/her profile page or [posts] on
other users’ pages could potentially violate the Rules in several ways.”
111
The opinion reasoned that judges “should be mindful of the appearance
created” and that judges must “consider whether any online connections,
alone or in combination with other facts, rise to the level of a “close social
relationship” requiring disclosure and/or recusal.”
112
Additionally, the committee looked specifically at a judge’s question
of whether the judge must, at the request of the defendant and/or the
defendant’s attorney, recuse himself in a criminal matter because he was
“Facebook friends” with the parents or guardians of certain minors who
allegedly were affected by the defendant’s conduct.
113
The judge involved
in the matter stated that, “despite the Facebook nomenclature (i.e., the word
‘friend’) used to describe these undefined relationship,” he was merely
acquainted with the parents and that he could be fair and impartial.
114
The
opinion states that the “mere status of being a ‘Facebook friend,’ without
more, is an insufficient basis to require recusal.”
115
Nor did “the committee
believe that a judge’s impartiality may reasonably be questioned or that
there is an appearance of impropriety based solely on having previously
‘friended’ certain individuals who are now involved in some manner in a
pending action.”
116
106. Md. Judicial Ethics Advisory Op. 2012-07 (June 12, 2012).
107. Id.
108. Id.
109. Id.
110. N.Y. Advisory Comm. on Judicial Ethics Op. 08-176 (Jan. 29, 2009).
111. Id.
112. Id.
113. N.Y. Advisory Comm. on Judicial Ethics Op. 13-39 (May 28, 2013).
114. Id.
115. Id.
116. Id.
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3. Kentucky
When asked whether a judge may “participate in an internet-based
social networking site, such as Facebook, LinkedIn, MySpace, or Twitter,
and be ‘friends’ with various persons who appear before the judge in court,
such as attorneys, social workers, and/or law enforcement officials,” the
Ethics Committee of Kentucky Judiciary responded with a qualified yes.
117
In Kentucky, judges can be connected to lawyers, law enforcement, and
social workers on social media sites; however, judges should ensure that
they do not violate the Judicial Code of Conduct.
118
When coming to this
conclusion, the committee pointed to the fact that Kentucky judges are
elected and should not be forced to separate from the community.
119
Additionally, the committee commented that the “designation of a ‘friend’
on a social networking site does not, in and of itself, indicate the degree or
intensity of a judge’s relationship with the person who is the friend.”
120
A recent incident in Kentucky draws to light the complications caused
when a judge posts on Facebook. In this incident, Judge Olu
Stevens criticized the victim impact statement of two parents who claimed
that a home invasion and robbery had left their three-year-old daughter
with a fear of black men.
121
Judge Stevens posted this statement as his
Facebook status: “Do 3-year-olds form such generalized, stereotyped and
racist opinions of others? I think not. Perhaps the mother had attributed her
own views to her child as a manner of sanitizing them.”
122
“The victims
and their friends responded with their own Facebook page urging Judge
Stevens” removal from the case.
123
While Judge Stevens claims that this
did not affect his sentencing of the two defendants, some ethics experts are
criticizing the Facebook post.
124
These experts are saying that judges
should not comment on pending cases and that they “should not use the
prestige of [their] office to further their own interests.”
125
Additionally, the
experts fear that criticism, such as Judge Steven’s on Facebook, “could
discourage other victims from participating in the criminal justice
system.”
126
This case has not yet been brought before any disciplinary
committees, but if the case is brought, it is likely that Kentucky will look to
the Code of Judicial Conduct to see if any violations occurred. While
117. Ethics Comm. of Ky. Judiciary Op. JE-119 (Jan. 20, 2010).
118. Id.
119. Id.
120. Id.
121. Debra Cassens Weiss, Offended by victim-impact statement, judge comments on
Facebook; is it an ethics violation?, ABA JOURNAL (April 13, 2015),
http://www.abajournal.com/news/article/offended_by_victim_impact_statement_ju
dge_comments_on_facebook_is_it_an_eth/?utm_medium=email&utm_campaign=
weekly_email&utm_source=maestro&job_id=150416AX (last visited May 7,
2015).
122. Id.
123. Id.
124. Id.
125. Id.
126. Id.
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Kentucky does have a lax policy regarding judges becoming Facebook
friends with those who appear in their court, Kentucky did urge that judges
should be mindful not to violate the Code of Judicial Conduct.
127
An ethics
disciplinary committee could find that Judge Steven’s did violate the Code
by using the prestige of his office to advance his own interests in deterring
racism in his courtroom.
128
Arguably, Judge Stevens should have
disqualified himself from the case based on his strong emotional reaction to
the victim impact statement.
129
4. Ohio
An Ohio advisory opinion posits that judges may participate in social
networking sites and allows judges to be friends on a social networking site
with lawyers who appear as counsel in cases before them.
130
Ohio's Board
of Commissioners on Grievances and Discipline found no ethical
prohibition or requirement for mandatory recusal or disclosure; however,
the commissioners did emphasize the need for caution and compliance with
the ethical rules in the Code of Judicial Conduct by any judge who elects to
participate on social networking sites.
131
5. South Carolina
South Carolina’s Advisory Committee on Standards of Judicial
Conduct stated that Magistrate judges can be members of Facebook and
can “be ‘friends’ with law enforcement officers and employees of the
Magistrate as long as they do not discuss anything” on the social media site
related to the judge’s position.
132
The committee reasoned that “[a]llowing
a Magistrate to be a member of a social networking site allows the
community to see how the judge communicates and gives the community a
better understanding of the judge.”
133
6. Georgia
Georgia has no advisory opinions on record instructing a judge’s use of
social media sites, but there is a case that shows its liberal stance on the
subject. A Judge resigned after evidence came out of an inappropriate
Facebook relationship with a defendant.
134
The Judge initiated the
127. Ethics Comm. of Ky. Judiciary Op. JE-119 (Jan. 20, 2010).
128. Id.
129. Weiss, supra note 121.
130. Sup. Ct. of Ohio, Bd. of Comm’rs on Grievances & Discipline Op. 2010-7 (Dec. 3,
2010).
131. Id.
132. S.C. Advisory Comm. on Standards of Judicial Conduct Op.17-2009 (October
2009).
133. Id.
134. Debra Cassens Weiss, Ga. Judge Resigns After Questions Raised About Facebook
Contacts, ABA JOURNAL (Jan. 7, 2010),
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relationship with the defendant when he contacted her through Facebook
and said he noticed that she worked at a hair salon and was looking for
someone new to cut his hair.
135
The defendant responded she would refer
the judge to a colleague, since she did not cut hair.
136
Later, the two agreed
to meet, and the defendant asked to borrow money from the Judge for her
rent.
137
In other messages, the Judge and defendant discussed strategy in
her case involving a charge of theft, and a drug case of one of the
defendant’s friends.
138
The District Attorney said this was not a criminal
violation and no formal charges were brought.
7. Tennessee
A Tennessee court recently dealt with the issue of whether it was okay
for a judge to be Facebook friends with a witness for the prosecution.
139
In
coming to its decision, the court pointed to the Tennessee Supreme Court,
which has stated that "[t]he Code of Judicial Conduct does not require
judges to remain isolated from other members of the bar and from the
community."
140
However, the court stated that when judges engage in on-
line contact they must remain conscious of the duties they may be called
later to perform and that “[a] judge's online ‘friendships,’ just like his or
her real life friendships, must be treated with a great deal of care.”
141
The
court additionally pointed to a Tennessee ethics opinion from 2013, which
permits judges to utilize social media so long as they are mindful of their
ethical obligations.
142
Ultimately, the court held that the judge’s Facebook
friendship with a witness for the prosecution did not by itself require the
judge’s recusal from the case.
143
The court stated that while this connection
created an appearance of impropriety, that appearance diminished by the
judge’s action of fully disclosing his ties with the witness and admitting
that he had once met the witness in-person and that he had been a Facebook
friend with the witness.
144
The court also pointed to the fact that the witness
was 1 of 1500 of the judge’s Facebook friends.
145
http://www.abajournal.com/news/article/ga._judge_resigns_after_questions_raised
_about_facebook_contacts/ (last visited May 7, 2015).
135. Id.
136. Id.
137. Id.
138. Id.
139. State v. Madden, No. M2012-02473-CCA-R3-CD, 2014 Tenn. Crim. App. LEXIS
208, at *2-3 (Tenn. Crim. App. Mar. 11, 2014).
140. State v. Cannon, 254 S.W.3d 287, 308 (Tenn. 2008).
141. State, 2014 Tenn. Crim. App. LEXIS 208, at *31.
142. Tenn. Judicial Ethics Op. 12-01, (October 23, 2012).
143. State, 2014 Tenn. Crim. App. LEXIS 208, at *37-38.
144. Id.
145. Id.
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8. American Bar Association
The ABA issued a formal opinion on judicial use of social media
networks in 2013.
146
In the opinion, the ABA states that judges are allowed
to participate on social media networks but should comply with all relevant
provisions of the Code of Judicial Conduct when doing so.
147
Of particular
importance to the ABA was that judges avoid “any conduct that would
undermine the judge’s independence, integrity, or impartiality, or create an
appearance of impropriety.”
148
The ABA goes on to address whether a
judge can have a social media connection with a lawyer or party who has a
pending or impending matter before the court stating that the judge “must
evaluate that . . . connection to determine whether the judge should disclose
the relationship prior to, or at the initial appearance of the person before the
court. In this regard, context is significant.”
149
The ABA further states that
the existence of a social media connection “does not, in and of itself,
indicate the degree or intensity of a judge’s relationship with a person.”
150
The ABA stresses the importance of looking at a multitude of factors when
deciding whether or not a particular connection is appropriate.
151
IV. RECOMMENDATIONS
The purpose of this note is to provide workable guidance for judges
about what constitutes an appropriate presence on social media. While a
multitude of states have issued advisory opinions on the matter, the
opinions are not always so clear or consistent. There is a wide variation
among the jurisdictions and the ABA on whether or not a judge can be
connected on a social media site with a lawyer who has a case or may have
case pending before that judge. Some jurisdictions go as far as to prevent
all social media connections with any person who could appear in the
judge’s court, including social workers and law enforcement officers.
Many jurisdictions, such as Florida, Oklahoma, and Massachusetts
prevent judges from being connected on social media sites with lawyers
who may appear in their court. The use of the world “may” is troublesome
in these opinions. How is a judge supposed to predict which lawyers may
appear in his courtroom? Is a judge in violation of the rule if in June he
mistakenly adds as a friend on Facebook a lawyer who happens to appear
in his courtroom the following year? How can you really know what may
happen and who may appear? This rule places undue burden on judges and
in practice effectively prohibits judges from any participation on social
media sites. Also troubling is that the fact that Oklahoma chose to include
social workers and law enforcement officers in their prohibition of whom
146. ABA Formal Op. 462 (February 21, 2013).
147. Id.
148. Id.
149. Id.
150. Id.
151. Id.
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judges may add as friends on Facebook. Once again it can be impossible to
predict all people who may have the chance of appearing in a judge’s
courtroom. If we follow that line of reasoning, a family court judge should
refrain from adding any social workers in his jurisdiction for fear that they
may one day possibly appear in his courtroom. Additionally, family court
judges would be prevented from adding juvenile delinquents whom they
are trying to help and keep an eye on. Florida, Oklahoma, and
Massachusetts have implemented rules that are far too strict and unduly
restrict the rights and privileges of judges. Just as judges are allowed to
have personal and professional relationships outside the courtroom, such
relationships should be allowed in the virtual forum. While these virtual
relationships should be less restricted, there are some important factors to
take into account before connecting with someone on a social media site.
All people should be wary of social media use, whether it is whom
they are friending or endorsing, what they are posting, and whom they are
sharing their information with. Judges, however, need to be especially
careful. A judge’s position of power, ability to influence, and need to be
impartial are important factors to consider when looking at the use of social
media both professional and personally.
A judge’s unique position influences his or her activity on social media
sites. While some states argue otherwise, judges should be allowed to
connect on social media sites with attorneys, law enforcement officers, and
social workers even if those persons may appear in their courtroom.
Forcing judges to predict who may someday appear in their courtroom
places an undue burden on the judges. Judges are allowed to have lives
outside of their professional obligations and should be entrusted to
maintain the same ethical obligations they do outside the virtual forum on
social media sites. If, however, the attorney, law enforcement officer, or
social worker does happen appear in that judge’s courtroom in a pending
case, the judge can then take the appropriate steps to remedy the conflict,
whether it be recusal, notification to the parties of the relationship, or de-
friending the individual involved in the case. Judges should not be
Facebook friends with attorneys who have cases pending before them.
Doing so would undoubtedly create an appearance of impropriety. A judge
has a duty to appear and remain impartial and being Facebook friends with
an attorney who has a case pending before that judge could hinder this. If a
member of a party in a pending case gets on Facebook and sees that the
judge is Facebook friends with a member of the opposing side, that party
who discovers the friendship will most likely think the judge has something
to hide. This discovery can only lead the party to consider that the judge
may not be able to remain impartial, thereby violating the judicial canons.
To prevent this type of violation, if a judge is already Facebook friends
with an attorney, social worker, or law enforcement officer who
subsequently appears in his courtroom, that judge should inform both sides
of the matter and then proceed to de-friend that attorney on Facebook. If
the friendship goes beyond a Facebook friendship, the judge should take
the appropriate steps to see if recusal is necessary.
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Beyond social media connections, judges should not post opinions,
articles, or status updates about pending cases they are overseeing or
pending cases in their jurisdiction. Judges have a duty to appear and remain
impartial. A Facebook update commenting on a pending case or an article
talking about a pending case could undermine an appearance of partiality.
Facebook and LinkedIn are different in many ways. Facebook is seen
as more of social network for friends and family, whereas, LinkedIn is a
professional network for employers and employees alike. This key
difference affects what activity should be considered acceptable for judges
on LinkedIn. Because LinkedIn is a professional network, judges should be
unrestricted when it comes to whom they can be linked with. People tend to
have many more LinkedIn connections and may not know their LinkedIn
connections as well as their Facebook friends. These facts support a rule
where judges can connect on LinkedIn with lawyers, law enforcement
officers, and social workers who may appear in their courtroom. There is a
less of an appearance of impropriety and less of a chance for someone to
doubt a judge’s impartiality based on a LinkedIn connection. The only
caveat to this rule is endorsing and recommending individuals through
LinkedIn. Judges are forbidden from using their position of prestige of
judicial office to unduly influence or advance the personal or economic
interests of the judge or others.
152
By recommending a lawyer’s skills on
LinkedIn the judge is using his position of power to advance the personal
and economic interests of that lawyer. However, judges should be able to
recommend lawyers on LinkedIn who have worked for them, just as judges
are allowed to write recommendation letters for law clerks.
Being connected with an individual on a social media does not always
mean that the two individuals who share the connection have a close
relationship. The younger generation views Facebook in a much different
light than the older generation. Often times the younger generation
Facebook friends anyone and everyone, even people they have met once
for five seconds and will never see again. Twenty-seven percent of 18-29
year old Facebook users have more than 500 friends on Facebook.
153
While
adult users to tend to be more selective in whom they add as friends, the
average number of friends for adult Facebook users is still approximately
338 friends.
154
The probability that a person knows all 338 of her Facebook
friends on a personal level is extremely low. Being Facebook friends is in
no way indicative of a close personal relationship and therefore should not
be a major factor in determining whether a certain social media connection
should be allowed. Jurisdictions must look at the totality of the
circumstances when determining what social media connections are
permissible between judges, attorneys, and others who may appear in the
judge’s courtroom. The circumstances to consider are best addressed by the
152. ABA MODEL CODE OF JUDICIAL CONDUCT Rule 1.3 (2011).
153. Aaron Smith, 6 new facts about Facebook, PEW RESEARCH CENTER (Feb. 3, 2014),
http://www.pewresearch.org/fact-tank/2014/02/03/6-new-facts-about-facebook/
(last visited May 7, 2015).
154. Id.
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California advisory opinion. A judge should consider these factors and
weigh them when deciding what kinds of social media connections are
acceptable. Judges should consider the nature of their social media site
first. The more personal the page, the greater the chance that any one
connection creates the appearance that the connection would be in a special
position to influence in the judge. The second factor to consider is the
number of friends on the page. The more friends a judge has on the page,
the less likely it is that someone could perceive that any individual friend is
in a position to influence the judge. Third, judges should look at their
practice in determining whom to include. The more inclusive the page, the
less likely it is to create the impression that any individual member is in a
special position to influence the judge. The last factor to consider is how
regularly the attorney, law enforcement officer, or social worker appears
before the judge. If the likelihood that the attorney, law enforcement
officer, or social worker will actually appear before the judge is low, the
more likely it is that the interaction would be permissible.
As social media continues to grow and change, so will what constitutes
acceptable judicial use of social media sites. The best advice for judges
who chose to use social media is to ensure that they abide by the Judicial
Canons and the Judicial Code of Conduct. If a question exists as to whether
a social media connection is proper or if recusal is necessary, the judge
should disclose the connection to both parties and let the parties decide
what they would deem acceptable. Another piece of advice for judges is to
have separate social media accounts, one for professional use and one for
personal use. Judges can then adjust the privacy settings on each account to
ensure that certain connections can only see certain things. Hopefully as
social media becomes more widely understood, the jurisdictions can come
to an agreement on what constitutes appropriate judicial use of social
media sites. For now, judges should abide by the advisory opinions and
case law in their jurisdictions.
