In 2014, Circuit Judge Linda Schoonover of Seminole County, Florida sent a Facebook “friend” request to Sandra Chace, a real-estate agent. The Judge had presided over Chace’s high-dollar divorce case but had not yet made a ruling at the time she sent the request. The agent ignored the “friend” request. When the judge made her ruling it appeared to be “excessive and punitive” against the agent. Chace then asked Schoonover to remove herself from the case, a request she refused. Chace appealed and the Fifth District Court of Appeal ordered Schoonover off the case. This is just one of 13 charges against the judge. Her hearing is scheduled for May, 2015.
We now know how social media has the ability to transform our interactions – both personal and professional. Lawyers and judges have been resistant to embracing this new mode of communication. Today, however, legal professionals find themselves at a maturation point where social media is becoming part of the legal toolkit and knowing about the uses of social media for legal practice is being part of our duty of competency. Lawyers and judges alike are increasingly running afoul of professional conduct rules, partly because of the ambiguity of applying ethical rules to these new technologies. Let’s review some of the issues surrounding the social media use of judges.
One of the first questions that gets asked is should judges even be permitted to use social media? I would answer – judges are people too with personal lives – at some point they are not on duty. I think the more appropriate question is how can judges use social media while not violating any ethical rules that would subject them to disqualification or the need to recuse themselves from a case?
A 2012 national New Media and the Courts survey by the Conference of Court Public Information Officers showed that more judges report using social media like Facebook and Twitter. The survey also showed that the percentage of judges who strongly agree that their own use of the technologies poses no threat to professional ethics has doubled since the first year of the survey. This applies whether the technologies are used in personal or professional lives. Some interesting statistics from the report found that 46% of judges use social media (Facebook and LinkedIn) and if judges were up for re-election that total increased to 60%.
The general rule is that to warrant recusal, a judge’s expression of an opinion about the merits of a case or familiarity with the facts or the parties must have originated in a source outside the case itself. This is referred to in the United States as the “extra-judicial source rule” and was recognized as a general presumption, although not an invariable one, in the 1994 U.S. Supreme Court decision in Liteky v. United States.
Often justices or judges will recuse themselves sua sponte (on their own motion), recognizing that facts leading to their disqualification are present. However, where such facts exist, a party to the case may suggest recusal. Generally, each judge is the arbiter of a motion for the judge’s recusal, which is addressed to the judge’s conscience and discretion. However, where lower courts are concerned, an erroneous refusal to recuse in a clear case can be reviewed on appeal or, under extreme circumstances, by a petition for a writ of prohibition.
In certain special situations, circumstances that would otherwise call for recusal of a judge or group of judges may be disregarded, when otherwise no judge would be available to hear the case. For example, if a case concerns a salary increase payable to a judge, that judge would ordinarily be disqualified from hearing the case. However, if the pay raise is applicable to all the judges in the entire court system, the judge will keep the case, because the grounds for recusal would be equally applicable to any other judge. The principle that a judge will not be disqualified when the effect would be that no judge could hear the case is sometimes referred to as the “rule of necessity”.
The use of social media is subject to the same ethical and professional standards as all other conduct of a member of the legal profession including disqualification or recusal of a judge. Specific rules judges need to be wary of include:
- Rule 1.2, Promoting Confidence in the Judiciary: A judge must maintain dignity in every comment, photograph and other information shared on social networking site.
- Rule 2.9, Ex Parte Communications: A judge should not make comments on a social networking site about any matters pending before the judge — not to a party, not to a counsel for a party, not to anyone.
- Rule 2.11, Disqualification: A judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer or party.
- Rule 3.10, Practice of Law: A judge may not give legal advice to others on a social networking site
Other issues of note:
- Anonymity cannot be guaranteed, even when posting under a username, and members of the profession should always assume that comments might be traced back to them, and exercise appropriate discretion.
- Issues around confidentiality should be carefully considered. Information made available by you to a small group in private can then be republished to a wider audience.
- Likewise, individuals should take care when forwarding or ‘re-tweeting’ information to understand in what context that information was sent to them, and whether it was intended for re-publication. Once information is committed to social media a large degree of control is lost.
- Professional duties such as acting in the best interest of a client remain key issues when using social media, especially given the potentially large audience who may be able to see the information posted.
- Other areas where members of the legal profession have specific duties include the duty to maintain respectful and courteous relationships with the courts and with other members of the profession.
The ABA and various State Bar Associations have issues their own opinions regarding use of social media by the judiciary. ABA Formal Opinion 462 (issued in 2/2013) states: “A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.“
As for the state bar associations a great resource is the National Center for State Courts: Judicial Ethics Advisory Opinions on Social Media. The NCSC outlines 11 state bar opinions relating to judge use of social media and offers links to the actual full texts of the opinions.
Here are some best practices as you balance your judicial duties with your social media activity:
- Be conscious of who you friend, connect with and/or follow.
- When you have a case before you check if you have any social media connections with any of the parties involved to avoid a conflict of interest.
- Read and study any social media guidelines issued by the Judicial and legal bars you are a member of.
- Keep in mind the special precautions you need to take if using social media during an elections campaign.
- Keep in mind social media is public, permanent, and powerful.