Social media transformed the way people communicate and interact with one another. With close to 500 million active users, half of whom login daily and maintain an average of 130 friends, Facebook is the leader among social media platforms. [1] Nearly one-fifth of Facebook’s active user population is found in the United States, which equates to one-third of the country’s total population.
The use of social media as a means of communication is only growing and reaching new segments of the population, including the judicial community. In fact, the use of Facebook among judges mirrors that of the general U.S. population. [2] This is not a surprise – judges are people too with family, friends, and professional acquaintances with whom they communicate on a regular basis. They should be able to use the same social platforms others in the community use. However, as it relates to judges, the use of social media, such as Facebook, raises issues that others do not face. For example, when a judge adds an attorney who is also a friend or a professional acquaintance to his online social community (the act is better known as ‘Friending’), does that action violate the rules of judicial conduct? In light of this and similar issues, several state judicial ethics committees examined the ethical implications of judges’ personal use of social media sites, with a specific emphasis on Facebook, to provide judges with guidance.
First to address the ‘Friending’ question was N.Y. Jud. Ethics Adv. Op. 08-176 (January 29, 2009). [3] The New York committee responded to a judge’s question concerning the propriety of joining and accepting a ‘Friend’ request. The committee recognized the need for judges to communicate with loved ones and friends through an online platform, but noted that judges would communicate with attorneys as well. The question was not whether a judge may join Facebook, but rather how judges should conduct themselves once on the network. In considering the question, the committee considered the Code of Judicial Conduct (as adopted by the New York Legislature). Among its primary concerns was the obligation to “avoid impropriety and the appearance of impropriety in all of the judge’s activities.” [4] Consistent with this principle, the committee emphasized the need for a judge to keep in mind the public nature of their action. The act of ‘Friending’ an attorney, while no different than adding an attorney to the judge’s contact list on Outlook or rolodex, must be examined as to whether it “rise[s] to the level of a ‘close social relationship’ requiring disclosure and/or recusal.” [5] Advising caution, the committee recognized that while this is new technology, it is no different than issues that existed in the past. It therefore, concluded its opinion by recommending for judges to stay abreast of technological development and their implications on judicial conduct.
The next states to address the issue of ‘Friending’ were the judicial conduct committees of South Carolina and Florida. Both adopted divergent views on the issue of ‘Friending.’ The S.C. Adv. Committee Opinion 17-2009 (October 2009), [6] which while brief and not addressing the issue directly, agreed that a (magistrate) judge may join an online social networking site, and may ‘Friend’ law enforcement personnel and others working for the judiciary, as long as official judicial business is not discussed on the site. The South Carolina committee recognized the same realities considered by the New York committee in sanctioning the joining of a social networking site: “…a judge should not become isolated from the community in which the judge lives.”
Florida, in contrast, provided a more specific and narrow view of judges ‘Friending’ attorneys. On November 17, 2009, the Fla. Jud. Ethics Adv. Committee entered Opinion 2009-20, [7] permitting judges to join social organizations, noting that a judge cannot avoid “…friendships outside their judicial responsibilities….” However, the Florida committee expressly prohibited judges from ‘Friending’ attorneys who may appear in front of them on a regular basis, and removed the decision from the judge’s discretion. The committee reasoned that a judge who “friends” members of the bar appearing in front of the judge “…conveys or permits others to convey the impression that those members are in a special position to influence the judge.” [8] The committee drew a distinction between the ability to actually influence the judge versus the appearance of doing so to the general public who may not be aware of the code and other requirements that ensure the judge’s impartiality. It did stop short of a blanket prohibition, by allowing judges to “…friend lawyers who do not appear before the judge…” [9]
The Florida committee’s decision notes the differing views on this topic. The minority opinion recognized that a ‘Friend’ on Facebook (or other sites) is not a friend in the traditional sense, given that the use of Facebook has become so “ubiquitous.” [10] Put another way, a person observing that an attorney is “friends” with a judge or vice versa on Facebook should not reasonably convey that the attorney is in a special position to influence the judge or is violating the Code of Judicial Conduct. [11] This notion was refuted by both the majority’s opinion in the November 17, 2009, opinion and in subsequent Fla. Sup. Ct. Jud. Ethics Adv. Committee Opinion 2010-06 (March 26, 2010).
Designation of a ‘Friend’ on Facebook, “does not, in and of itself, indicate the degree or intensity of a judge's relationship with the person who is the ‘friend.’” Ky. Jud. Ethics Opinion Number JE-119 (January 10, 2010). [12] Kentucky’s opinion mirrors the Florida committee’s minority opinion, in recognizing the wide use of Facebook and the lack of special designation attached to it by the public. Moreover, the Ky. committee’s opinion echoes the N.Y. opinion, by cautioning, and providing guidance to judges who use the ‘Friend’ function.
The Calif. Judges Assoc. Jud. Ethics Committee Opinion Number 66 (November 23, 2010), [13] and the Oh. Sup. Court’s Board of Commissioners on Grievances and Discipline Opinion Number 2010-7 (December 3, 2010), [14] are the most recent opinions on the issue of “Friending.” Both reviewed other committees’ decisions, and opted to side with the majority view that judges may ‘Friend’ attorneys practicing in front of them so long as they adhere to the rules of conduct. Both the California and Ohio opinions provided several examples of proper conduct in the ‘Friend’ context.
Most people accept that judges are familiar with the lawyers who practice in front of them. This awareness translates into the understanding that friendship on a social networking site such as Facebook does not lead to the appearance of special relationship. Judges are well-aware of the need to observe higher levels of scrutiny when it comes to their online social exposure to the public. In a recent survey conducted by the Conference of Court Public Information Officers, the majority of respondents did not believe there was risk of judges violating the code of conduct. [15] This is significant, especially as the use of social networking sites become more pervasive in society as a whole.