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ABA has suggestions for judges on social media
RICHARD WEINER
Technology for Lawyers
Published: May 31, 2013
The American Bar Association has finally come out with advice for judges who insist on using social media, and it’s about time. Really.
The ABA issued Formal Opinion 462 in February, which addressed ethical issues that can arise when judges use social media when interacting with lawyers and others that might appear before them in court, as well as during judicial campaigns.
This follows, by a few years, the Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline Opinion 2010-7.
The ABA opinion first states that any communications among the bench and bar, as long as they are ethical, should be encouraged, whether online or off line.
The first question that was dealt with was what happens if a judge and attorney are Facebook friends and the attorney appears in front of the judge. Does the judge have to now say to the attorneys, parties, and the jury: “Disclaimer! Mr. Smith and I are FB friends?”
Maybe. The opinion states what is obvious: nobody knows every FB contact. So, the ESB relationship must only be disclosed if it should be under any other ethical tenet. The rule imposes no duty on the judge to sift through his or her Facebook to see if a party or counsel is a FB friend or connected in any other social media site.
In judicial election campaigns, the ABA opinion states the obvious: “(i)n jurisdictions where judges are elected, (social media) has become a campaign tool to raise campaign funds and to provide information about the candidate….”
In drawing up guidelines for the use of social media in campaigns, the opinion makes sure that judges understand and follow Canon 4 of the Model Code, which covers judges’ conduct during judicial campaigns, stating that judges and judicial candidates are prohibited from publicly endorsing or opposing another candidate for political office.
As a practical matter, judges are admonished to watch what buttons they click on on other sites, what they post and to watch their privacy settings.
Within that restrictive environment, though, the ABA’s opinion states that social media may be used by judicial candidates.