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Letter Opinion of the Committee on Judicial Ethics
You have asked the CJE to advise you on the extent to which the principles and guidelines set forth in CJE Op. No. 2011-6 (“Facebook: Using Social Networking Website”) remain valid under the Massachusetts Code of Judicial Conduct in effect as of January 1, 2016 ("Code" or "2016 Code").
The fundamental principles of the 2016 Code are consistent with those of the predecessor Code. A judge must, at all times, uphold and promote the independence, integrity, and impartiality of the judiciary, and avoid impropriety and the appearance of impropriety. A judge must, at all times, maintain the dignity of judicial office and aspire to conduct that ensures the greatest possible public confidence in the judge's own conduct and in the legal system. A judge must avoid engaging in extrajudicial activities that are reasonably likely to interfere with the proper performance of the judge’s judicial duties or to lead to recurrent disqualification of the judge. A judge should expect to be the subject of public scrutiny that might be viewed as burdensome if applied to other citizens.
While the underlying principles remain the same, we are aware of the rapid growth and evolution in the use of electronic social media, such as Facebook. Judges newly-appointed to the bench may arrive with a Facebook account containing many hundreds of “friends,”(1) so we must offer guidance that addresses both the status of pre-existing friends and the possible acquisition of new friends. It is also generally known today that Facebook members use that social media platform in very different ways. Some users post regularly, while others post rarely or never. Some users limit their Facebook friends to family and close, personal friends, while others have many acquaintances among their Facebook friends. Some users accept the vast majority of friend requests they receive, while others screen them carefully. Some users regularly review the postings and profiles of their friends, while others do not.
Moreover, we have the benefit of reviewing the many ethics opinions that have been issued by other jurisdictions, as well as the American Bar Association, since 2011. Almost without exception, these opinions all note that a judge’s use of electronic social media (many of these opinions are not limited to Facebook) is, while permissible, “fraught with peril.” We agree.
Disagreement among jurisdictions continues, however, concerning whether a judge may be a Facebook friend with a lawyer who may appear before the judge. Several jurisdictions (e.g., Connecticut, Florida, and Oklahoma) prohibit judge-lawyer Facebook friendship on the grounds that it can convey the impression that the lawyer is in a special position to influence the judge. Several other jurisdictions permit it, having concluded that Facebook friendship does not by itself convey the impression of being in a special position to influence the judge. Many jurisdictions have not specifically addressed the subject, and California appears to be the only jurisdiction to have specifically considered when a judge may need to “unfriend” a Facebook friend. As always, we are aware that jurisdictions in which judges stand for election often permit a degree of interaction with lawyers that is not permitted in Massachusetts.
I. Relevant Portions of the Code
Because Facebook is a medium for communication, a judge’s Facebook use may implicate many Code provisions, including the following:
Improper use of Facebook may also implicate other provisions of the Code, such as the prohibitions on solicitation in Rule 3.7 and on practicing law in Rule 3.10.
II. General Guidelines
A judge who uses Facebook must avoid violating the Code’s restrictions, including those enumerated above. This requires a judge to be cautious concerning the judge's Facebook communications, that is, to think before engaging in electronic speech. A judge must avoid conduct that may interfere with the duties of judicial office (e.g., making improper comments on pending or impending matters, engaging in ex parte communications, suggesting that any person or party has special access to the court) or conflict with the dignity of judicial office (e.g., posting inappropriate photos). A judge must avoid any conduct that suggests that any person or organization is in a position to influence the judge. A judge must not use Facebook to endorse (e.g., "like" or "follow") commercial entities or political candidates, or otherwise violate the Code's restrictions on abusing the prestige of judicial office and participating in political activity.
Moreover, a judge must consider all of the judge's Facebook communications to be potentially public and, once made, wholly outside of the judge's control. Postings, including comments on other’s posts, may be transmitted without the judge’s permission or knowledge to unintended recipients, and Facebook communications may be taken out of context or relayed incorrectly. Facebook communications may be saved indefinitely.
The above guidelines are all consistent with CJE Op. No. 2011-6. We depart from that Opinion, however, when it comes to the monitoring and control that we may reasonably expect a judge to exercise over the judge’s Facebook friends. A judge must not, of course, authorize others to depict the judge or the judiciary in a manner that negatively impacts the integrity or impartiality of the judiciary. However, we are aware that a Facebook user often has no knowledge concerning the communications made by Facebook friends, and do not believe that a reasonable person would consider a judge to have endorsed a Facebook friend's communication unless the judge has so indicated by taking some affirmative action (e.g., "liking," "following," commenting, or reposting). If, however, a judge becomes aware that a Facebook friend's communications negatively impact the integrity or impartiality of the judiciary, a judge must "unfriend" that person. Similarly, a judge may not reasonably be expected to monitor all postings and comments on a Facebook page that the judge "likes" or "follows," but if the judge becomes aware of content that negatively influences the integrity or impartiality of the judiciary, the judge must stop "liking" or "following" that page.
We also part ways with CJE Op. No. 2011-6 because we do not believe that the Code requires a judge who uses Facebook to conceal the judge's judicial identity. A judge's appropriate use of Facebook should not threaten the dignity of judicial office, constitute an abuse of the prestige of judicial office, or otherwise violate the Code. It is reasonable to assume that a judge's Facebook friends will be aware of the judge's judicial office, and the Code governs a judge's personal as well as professional life. A judge may, of course, choose not to identify himself or herself as a judge on Facebook and may request that others do the same. Indeed, there may be sound reasons apart from ethical considerations for a judge to refrain from identifying his or her judicial role on social media -- such as the judge's concerns over the personal safety of the judge or the judge's family members. More generally, we recommend that judges consider carefully the benefits and attendant risks of being Facebook friends with more than a carefully-circumscribed circle of family and close friends.
III. Lawyers as Facebook Friends
The issue of a judge’s being a Facebook friend with lawyers is complex, particularly as the degree to which Facebook friendship signifies genuine personal friendship varies widely. Nonetheless, we agree with the conclusion of CJE Op. No. 2011-6 that a lawyer who is a Facebook friend with a judge may appear to others to be in a special position to influence the judge. Even the most casual of Facebook friends may, for example, acquire personal information about the judge (e.g., celebration of a family event, a vacation destination) that could be used to convey the impression that the Facebook friend has special knowledge about and access to the judge.
In our judgment, the Code prohibits a judge from being Facebook friends with any attorney who is reasonably likely to appear before that judge. This bars a judge from making friend requests to or accepting friend requests from any lawyer reasonably likely to appear before the judge. This conclusion also requires that a judge review the judge's Facebook friends and "unfriend" lawyers who are reasonably likely to appear before the judge. If a judge knows(2) that a lawyer appearing before the judge is a former Facebook friend, the judge should disclose the existence and nature of that past Facebook friendship even if the judge believes there is no basis for disqualification. See Rule 2.11, Comment .
Despite a judge’s best efforts to comply with the foregoing guidance, there may be instances where, unexpectedly, a lawyer whom the judge knows to be a Facebook friend appears before the judge. Because of the wide variability in the nature of Facebook friendships, disqualification may or may not be required. The scope of the Facebook friendship is one factor for the judge to consider when determining whether disqualification is required under Rule 2.11(A)(1). Where disqualification is ultimately unwarranted, the judge should both "unfriend" the lawyer and disclose on the record the existence and nature of the Facebook friendship. See Rule 2.11, Comment .
Although a judge may use Facebook, the Code of Judicial Conduct limits the manner and extent of the judge's participation. Because of the presumptively public nature of Facebook communications, a judge must ensure that the judge's Facebook use does not undermine public confidence in the judge or the judiciary. To uphold public confidence in the judicial system, a judge must not be Facebook friends with a lawyer who is reasonably likely to appear before the judge.(3)(4)
(1) As of this writing, a Facebook friend is someone that the host (hereafter “the judge”) has given permission to view the judge’s Facebook page. Either the judge has sent a friend request that was accepted, or vice versa. While Facebook permits a judge to employ a variety of privacy settings to differentiate among Facebook friends, these settings may be used without the knowledge of the Facebook friend or others. Also, a judge may “unfriend” a Facebook friend; this results in the (now former) friend's loss of access to the judge’s page.
(2) The Code defines "knows" to require actual knowledge of the fact in question, although knowledge may be inferred from circumstances.
(3) The same standards applicable to a judge's Facebook friendship with a lawyer also apply to others who are reasonably likely to appear before the judge in an adversarial role, such as law enforcement personnel, expert witnesses, and parties.
(4) Social media changes rapidly. A judge who uses Facebook is expected to stay reasonably informed about changes to that social networking service and, as appropriate, reassess whether and how those developments might impact the judge's permissible Facebook use.