| Date: | 12/28/2011 |
|---|---|
| Organization: | Massachusetts Supreme Judicial Court |
After the Committee on Judicial Ethics issued this opinion, the Massachusetts Supreme Judicial Court adopted a revised Code of Judicial Conduct. Because this opinion was rendered under a prior version of the Code, a judge should not rely on it without contacting the Committee on Judicial Ethics.
You are a judge-designate who requests guidance from the Committee as you make the transition from private practice to a judgeship with the Trial Court. Specifically, you ask the Committee to define the parameters of Code-appropriate judicial use of Facebook,(1) a social networking web site. Your question triggers consideration under Section 2A and its Commentary; Section 2B and its Commentary; Section 2C; Section 3B(7); Section 3B(9); Section 4A and its Commentary; and Section 5A(1)(b).
"Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety." Commentary to Section 2A. The Code's drafters observed that "it is not practicable to list all prohibited acts" in the Code, thereby enabling the Code to adapt not only to unprecedented advances in technology, but also to unanticipated changes to fundamental notions of communication. The Code therefore casts its proscriptions "in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code." Id. Here, too, after considering this matter, and reviewing opinions from other jurisdictions,(2) the Committee does not address every possible situation that may arise in the realm of social networking sites but instead provides you with general guidance to inform your decisions concerning on-line activities. See, e.g., CJE Opinion 2004-9 ("The committee historically has been reluctant to advise judges in making specific decisions such as this on a case by case basis. . . . The committee can, however, provide you with . . . general guidance that may inform your decision . . . .").
I. General Use
The Code does not prohibit judges from simply being members of a social networking site such as Facebook. See, e.g., Commentary to Section 4A ("Complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives."); CJE Opinion 2004-9 ("[J]udges do not live in ivory towers" and the Code permits "[s]ome degree of socializing . . . ."). As a Facebook member, you may "post" on your Facebook wall (e.g., photos, videos, comments, and links to articles found elsewhere on the Internet), and you may "like" posts that others have made. The substance of those activities, however, must be consistent with the Code.(3)
For example, you must not act or permit others to depict you acting in a way that negatively impacts the integrity and impartiality of the judiciary, Sections 2A, 2B, 4A; you must not comment or permit others to comment on cases currently pending before you, Section 3B(7), (9); you must not join "Facebook groups" that would constitute membership in an organization in violation of Section 2C; and, as you note in your request, you must not make political endorsements, Section 5A(1)(b). You must also take care not to identify yourself as a judge or permit others to do so. Section 2B ("A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge."); e.g., Commentary to Section 2B ("[J]udicial letterhead and the judicial title should not be used in conducting a judge's personal business.").
II. Associations
A closer question, and one with which you specifically request guidance, is whether the Code permits you to "friend"(4) attorneys who may appear before you. The Committee is of the opinion that the Code prohibits judges from associating in any way on social networking web sites with attorneys who may appear before them. Stated another way, in terms of a bright-line test, judges may only "friend" attorneys as to whom they would recuse themselves when those attorneys appeared before them.
In reaching this decision, the Committee finds instructive two opinions of Florida 's Judicial Ethics Advisory Committee ("Fla. JEAC"): Opinion No. 2009-20, dated November 17, 2009; and Opinion 2010-06, dated March 26, 2010. In both opinions, the Fla. JEAC considered the propriety of a judge's adding lawyers as "friends" on a social networking site when those lawyers may appear before the judge. The Fla. JEAC concluded that this action would violate Florida's Canon 2B - identical to the second and third sentences of Section 2B of our Code - which states that "[a] judge shall a not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge."
The aspect of the "friending" process that renders it impermissible, the Fla. JEAC found, is the selection and rejection process of friending some and not others, and the communication of that selection in the "public forum" of a social networking site, because it "conveys or permits others to convey the impression that they are in a special position to influence the judge." Fla. JEAC Op. 2010-06; Fla. JEAC Op. 2009-20. In this respect, friending "creates a class of special lawyers who have requested this status [of `friend']" and "these lawyers as a group, in contrast to other lawyers who do not participate in social networking sites or who choose not to ask the judge to accept them as the judge's `friend', would appear to the public to be in a special relationship with the judge." Fla. JEAC Op. 2010-06.(5)
A minority of the Fla. JEAC opined that "social networking sites have become so ubiquitous that the term `friend' on these pages does not convey the same meaning that it did in the pre-internet age" and that a "friend" may be merely an acquaintance. While this Committee does not dispute that the ubiquity of social networking sites has made the word "friend" into a term of art, it does disagree that it negates the possible appearance of impropriety. See Commentary to Section 2A (explaining that appearance of impropriety arises when "the conduct would create in reasonable minds a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality and competence is impaired"). As support for this disagreement, this Committee points to the observation that the California Judges Association made in Judicial Ethics Committee Opinion 66, dated November 23, 2010: given "the peculiar nature of online social networking sites, . . . evidence of the connection between the lawyer and the judge is widespread but the nature of the connection may not be readily apparent." (Emphasis added); see New York Opinion 08-176 ("[T]he public nature of such a link (i.e., other users can normally see the judge's friends or connections) and the increased access that the person would have to any personal information the judge chooses to post on his/her own profile page establish, at least, the appearance of a stronger bond.").
III. Conclusion
The Code does not prohibit judges from joining social networking sites, thus you may continue to be a member of Facebook, taking care to conform your activities with the Code. A judge's "friending" attorneys on social networking sites creates the impression that those attorneys are in a special position to influence the judge. Therefore, the Code does not permit you to "friend" any attorney who may appear before you,(6) The pervasiveness of social media in today's society makes this situation one which requires a judge to "accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen." Commentary to Section 2A.
