While modern lawyers might argue cyberspace “friends” are much more like acquaintances than live friends, ethical guidelines may not make such a distinction. So, given the significant amount of lawyers who regularly utilize online social media, the question becomes: Who can you be “friends” with on social networking sites?
California weighs in on the friendship between judges and lawyers
Whether they talk about it publicly or not, an increasing number of California judges has ventured into the world of online social networking. California joins a handful of other states that have already publically opined on this issue in releasing California Judicial Ethics Committee Opinion 66, the first California opinion to discuss the issue of judges’ involvement in the online social networking community.
Recognizing the realities of modern online communication, the opinion states that judges may indeed participate in an online social networking community, and their online social networks may include lawyers who may appear before them. The opinion states, however, that a judge’s online social network may not include lawyers who have cases pending before the judge.
The opinion notes that judges should not be isolated from their communities, which in today’s world includes online communities. Their ethical duties remain the same regardless of whether they are interacting online or in person. The opinion’s conclusions in this regard are consistent with other jurisdictions that have addressed this issue, such as New York, South Carolina and Kentucky.
Streamlining the issue, the opinion notes that judges should conduct their online social activities in the same fashion that they conduct such activities in person. Per Canon 4A, a judge shall conduct his or her extrajudicial activities in a fashion that does not “(1) cast reasonable doubt on the judge’s capacity to act impartially; (2) demean the judicial office; or (3) interfere with the proper performance of judicial duties.” Participating in online social networking does not automatically violate any of these provisions any more than offline social networking would.
The opinion does, however, discuss ethical concerns raised by the decision to join the cyberspace community, which include issues related to the loss of control of content posted online. Anything posted by a judge on a social networking site is not private.
Consequently, any such comments a judge posts should therefore be viewed as public comments per Canon 3B(9), which prohibits a judge from making any type of public comment on a pending case. In addition, posts made by judges online may cast doubt upon their ability to act impartially. Canon 4A prohibits a judge from expressing prejudice or bias that may cast reasonable doubt on the judge’s impartiality, even when such expressions are made outside of the judge’s judicial activities.
What distinguishes a judge’s comments made online from those made offline at a cocktail party, for example, is that online posts are accessible to everyone with access to the site, and thus able to be printed out and garnished with an evidence tag should anything the judge has said ever become an ethical issue.
And not only do such comments remain online, but so do any comments made in response to what the judge has posted. If such responsive comments are offensive and the judge doesn’t check his or her social network site often enough to see and remove them, others viewing the site may infer the judge has adopted the supplemental comments. Opinion 66 thus states that judges who decide to use social networking sites must vigilantly check their network page frequently in order to determine whether anyone has posted offensive material, and they are obligated to delete such material, hide it from public view or repudiate the offending comments.
Opinion 66 notes other potential ethical issues raised by using online social network sites, such as the use of photos, videos or links that might demean the judiciary (Canon 4A) or violate a judge’s “duty to act at all times in a manner that promotes public confidence in the integrity of the judiciary” (Canon 2A). Judges also must comply with Canon 5A’s prohibition from publicly endorsing or opposing any nonjudicial candidates and Canon 5B’s rule against engaging in circumscribed political activity. Compliance with such rules would, in effect, prohibit the posting of virtually any political statements on a social networking site because, by their very nature, such sites are public.
Not only are judges permitted to participate in social networking sites, but the opinion also states that there is no per se prohibition against interacting online with lawyers who may appear before them. The opinion notes the similarity between online social interaction and in person social interaction as is permitted through participation in organizations such as the American Inns of Court, which is designed to promote professionalism and civility, as well as other social or civic organizations.
Such online interactions are of course subject to the same rules that apply to any other interactions in the sense that they cannot elicit the appearance of bias or undue influence in violation of Canon 2A, which requires that judges must “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary,” Canon 2B, which prohibits a judge from conveying or permitting anyone else to convey “the impression that any individual is in a special position to influence the judge,” or Canon 4B(1), which prohibits extrajudicial activities that would “cast reasonable doubt on the judge’s capacity to act impartially.”
Join us next month as we continue to examine the permissible boundaries of online friendship between judges and lawyers.