Article: Why We Can’t Be Friends: Preserving Public Confidence in the Judiciary Through Limited Use of Social Networking

Judges occupy a special place in American society.  Their actions, both inside and outside the courthouse, play an integral role in the public’s respect for, and confidence in, the legal system.  The existence of an independent, fair, and impartial judiciary is the hallmark of the American legal system.  By necessity, judges are held to a higher standard of professional conduct than other members of the legal profession, and their personal and professional activities are subject to heightened scrutiny by members of the profession and the public.  Although judges are members of the larger community, they hold an elevated position as symbols of the law and justice.  As a result, a judge’s actions and behaviors have ramifications far beyond how members of the public view the judge as an individual.  What a judge does or says reflects directly on the integrity of the judicial system.

When a member of the judiciary utilizes social media to communicate with colleagues, friends, and family members, a legitimate risk exists that his or her actions or statements may undermine the public’s confidence in, and respect for, the judiciary.  In some ways, the use of social media is no different than direct communication because certain acts or statements would be construed as clearly improper regardless of the medium.  In either forum, a judge may actually say or do something that undermines the public’s confidence in the judicial system, such as divulge confidential information, comment on a pending case, or use the prestige of the bench for personal gain.  In clear cases, the method by which the message is delivered is irrelevant.  However, there is a more subtle but equally dangerous risk associated with the use of social networking.  Unlike direct person-to-person communication, online communication does not offer the benefit of context, emotion, or in many cases visual aids that provide clarity to the meaning and purpose behind a particular communication.  Rather, most online communication is static and heavily dependent on the recipient of the communication to discern the meaning, purpose, or intent behind the words used.  Thus, when individuals, including judges, post comments online there is a greater risk that those who read the comment will misunderstand the message and form erroneous and unfounded opinions.  Whether a judge’s words or actions are clearly improper or merely misconstrued, the impact can be substantial and serve to undermine judicial canons employed to promote public confidence in the judiciary.

Members of the legal profession, including judges, continue to embrace social networking in both their personal and professional lives.[1]  In one recent survey, 40% of responding judges reported that they engage in social media, such as Facebook.[2]  That number is expected to increase.[3]  Such use can promote the efficient and effective administration of services, but it can also present unique challenges for those individuals seeking to comply with professional rules of conduct.  Although the federal judiciary has not issued an ethics opinion on the use of social media by judges, the Committee on Codes of Conduct within the Judicial Conference of the United States has recognized the potential hazards and drafted proposed guidelines on the use of social media by judicial employees.[4]  The Committee acknowledged that the use of social media “raises ethical, security, and privacy concerns for courts and court employees.”[5]  It noted that the limited ability to effectively control or retrieve communication once released poses unique problems for courts.[6]  The inability to ever completely erase or delete comments, coupled with the ability to preserve and replicate posted messages exacerbates the potential risks.[7]  The Committee also noted that due to a perceived sense of anonymity, individuals may engage in conduct online that they might refrain from engaging in in person.[8]  These issues are problematic for judges who must carefully balance their role as members of the community with their elevated status as a symbol of the judicial system.

Technology plays a significant role in the provision of legal services, but its uses are not without risk.  As the use and influence of social media continues to grow, it is essential for the legal profession to understand how its members use and share content on these sites.  It is equally important to consider how society’s evolving perspective on privacy and online communication should apply to judges.  In 2011, the American Bar Association (“ABA”) Commission on Ethics 20/20 examined the use of new technologies in the practice of law and found that with some additional clarification the current rules governing attorney conduct are sufficient to address the use of that technology, including online communications.[9]  While these rules offer guidance on appropriate judicial behaviors, alone they are insufficient to address the unique challenges posed by social networking.

This Article considers the rapid rise in the use of social media and its use by members of the judiciary, and asserts that judicial canons drafted prior to the advent of social media outlets are inadequate to address the risk posed through the use of social media.  Part I provides a brief overview of the rapid emergence of social media as a primary mode of communication and the unique risks it poses for users.  Part II provides a brief summary of codes of judicial conduct that are relevant to a judge’s use of social media.  Part III evaluates recent state judicial ethics opinions addressing the use of social media.  Part IV argues that a restrictive approach to the use of social media, which has been adopted by several states, is necessary to protect the integrity of the judicial system.  Part V offers recommendations to balance the competing interests of protecting the judiciary and allowing judges to participate in the communities they serve.

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Helia Garrido Hull: Associate Professor of Law and Coordinator of Student Professionalism Enhancement Program, Barry University Dwayne O. Andreas School of Law; B.A. Providence College, J.D. Stetson University College of Law.