Is Being Friends with a Judge on Social Media an #Ethicsfail?

Is Being Friends with a Judge on Social Media an #Ethicsfail?

By: Melissa M. Lessell

There seems to be a new app almost every day in which you can "friend" or "connect" with someone, "follow" them, or "message" them. Finding and towing the ethical line in an increasingly connected world can be tricky. This challenge is particularly daunting in the case of social media contacts with members of the judiciary.

Just as lawyers are bound by the Rules of Professional Conduct, the conduct of members of the judiciary is governed by the Code of Judicial Conduct. The precepts contained in the Code direct judges' behavior, including their online presence.

The ABA Model Code of Judicial Conduct states that judges must "maintain the dignity of the judicial office at all times." Judges should "aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence." Judges "shall not initiate, permit or consider ex parte communications...concerning a pending or impending matter." A judge may not engage in any activity that would lead to frequent disqualification or would appear to undermine the judge's impartiality. It is important to keep these concepts in mind when evaluating your social media contact with the judiciary.

The ABA and some states recognizes that simply "connecting" with or "friending" someone may not connote a close relationship and, therefore, do not espouse a general prohibition against judiciary social media contact with lawyers. The Supreme Court of Ohio, for example, stated in Opinion 2010-7 (2010) that "[t]here is no rule in the Ohio Code of Judicial Conduct that prohibits a judge from being friends, online or otherwise, with lawyers - even those who appear before the judge." Rather, judges must consider their entire relationship when determining whether they have the type of relationship with a lawyer that would require disclosure or disqualification.

In contrast, several Florida Supreme Court Judicial Ethics Advisory Opinions have determined that judges may not have any social media contact with lawyers that may appear before them. These opinions in Florida have determined that a judge may not "follow" or "favorite" tweets and may not be a connection on LinkedIn nor a Facebook friend of a lawyer appearing before them. The California Judges Association offered a middle ground approach in 2011, providing that a judge may not be a "friend" with a lawyer appearing before her, but allows the online relationship otherwise. Certain states like Arizona and Utah have different rules for different types of social media.

There is a great deal of variety among the states as to whether connecting via social media with members of the judiciary is ethical or not. Further, a number of states have not yet provided guidance on the issue. As with most ethics questions, use caution when connecting with judges via social media and know the rules of the state you practice in before doing so. However, while social media contact with members of the judiciary may be an ethical quagmire, there is no reason a young lawyer cannot foster a relationship in person, via email or with a hand written note. In fact, you may just find that a face to face conversation followed by a written note makes more of an impression than "friending" someone online.