Bar News - July 19, 2017
Opinion: Judges and Social Media: Can I Be Your ‘Friend’?
By: Hon. David Ruoff
Social media is the frontier for judicial ethics. No one topic elicits more divergent views, and for good reason. According to the National Center for State Courts (NCSC), judicial involvement in social media has caused a significant increase in judicial ethics complaints in recent years. As a result of this increase, state court systems have been struggling with what limits – if any – may be imposed on judicial officers when using social media.
Can I send or accept a “friend” request on Facebook (or “follow” on Instagram and Twitter) to or from a lawyer who appears before me, without triggering recusal? If I was sitting as a judge in Kentucky, California, Maryland, New York, Ohio, Utah, New Mexico or Arizona the answer would be “yes.” Surprised? If I was sitting as a judge in Florida, Massachusetts, or Oklahoma, the answer would be an unequivocal “no.” Other states fall in between those two extremes and say, “It depends.” Most states have not been called upon to address the issue… yet. Courts have been slow to keep up with social media, perhaps because judicial functioning itself is designed to be cautious, reflective and deliberative.
But, winter is coming. In the past few years, social media has experienced supernova-level growth. During the last presidential election cycle, Google estimates that more than 85 percent of Americans relied exclusively on social media to obtain news and information about the candidates. Social media is no longer the accessory, gossip-column-like forum it used to be. It has become central to lifestyles, businesses and the communities that judicial systems serve.
As a judge, I review social media posts – submitted by attorneys and parties as evidence – on a weekly basis in court hearings. I need to have a working knowledge of the various social media platforms so that I can understand what I am looking at or ruling on. In states where judges are elected (like Kentucky or Arizona), any successful election campaign requires those candidates to maintain active social networking accounts. Social media is the primary venue for elected judicial officers to reach out to voters.
In private practice, I actively used Facebook and other social media outlets to market my law firm. Until moving to my current role 16 months ago, I spent about an hour every other Friday afternoon updating my blog. Social media has become an integral part of the practice of law and essential to the ability to compete in the legal marketplace. Even the NH Supreme Court has a Twitter account, @NHCourts (which, ironically, is blocked by court-issued computers). New members of the judiciary – coming from private practice – are accustomed to incorporating social media into their work-life.
Because a single Facebook post, or “like” or “follow,” can involve potential violations of all four basic canons of Judicial Conduct – independence/integrity of the judiciary (Canon 1), impartiality of the judiciary (Canon 2), extra-judicial activities (Canon 3) and inappropriate political activity (Canon 4) – many judges strongly advise against using social media. But that is becoming increasingly unrealistic advice – and arguably is contrary to what modern ethical rules of professional conduct require of lawyers in practice.
The most recent addition to the commentary in Rule 1.1 of the Rules of Professional Conduct requires lawyers to “keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology [.]” Ethical rules require lawyers to become savvy with social media. If you don’t use it, you won’t understand it.
To strike a balance between unrealistic abstinence from social media (frankly, 90 percent of the communication in my family is through Facebook or other social media) and unfettered use, many states, including Kentucky, New York, Maryland, Tennessee and New Mexico, have recently published advisory opinions on this issue. These are collected on the NCSC website.
Most of these advisory opinions contain a similar thesis: If a judicial officer uses social media, the judicial officer must understand the technology behind the social media platform, keep current with what it contains, and refrain from engaging in any conduct that violate the Canons. This principal piece of advice is sound – and generated by hard experience.
Across the nation, many social media-related judicial conduct complaints arise because the judicial officer was unaware of how the social media platform worked – they did not know who could read the posts. For example, judges in Georgia, Alabama, New Mexico, West Virginia, Pennsylvania and Texas have been reprimanded – and a couple have been removed as judges – after making “public” comments about pending cases or the lawyers involved in them. Those judges believed that only their colleagues or “friends” could see the posts. None accounted for the fact that posts can be copied, shared and reposted. Once it is out there, it is out there.
Judicial officers must be aware of how social media exposes their posts (including photos) for all to see. Many social media platforms contain internal settings that allow for some control, but not complete control (ever take a screen shot?). That is why most states remind judges to be circumspect in all social media engagements. Yet, they also recognize the important role social media plays in how our judicial system is perceived. Judges sit in positions of power, and where there is power, there should be transparency. Social media provides transparency and has the potential to help ensure the integrity of the judiciary.
Hon. David Ruoff is the presiding justice of the Cheshire County Superior Court in Keene, New Hampshire.