Social Media and Judges: Ethical Considerations

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1 Social Media and Judges: Ethical Considerations Prepared by Judges Sue Kurita and Paul Davis Presented by Judge Mark D. Atkinson

2 Code of Judicial Conduct 2

3 Canon 2 Avoiding Impropriety and the Appearance of Impropriety In All of the Judge s Activities Canon 2A A judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. 3

4 Canon 2B Judge shall not allow any relationship to influence conduct or judgment Judge shall not lend judicial office prestige to advance private interests Judge shall not convey nor permit others to convey they have special position to influence Judge 4

5 Canon 3B(5) Judge shall perform judicial duties without bias or prejudice 5

6 Canon 3B(8) Judge shall not permit ex parte communications 6

7 Canon 3B(10) Judge shall abstain from public comment about a pending or impending proceeding which may come before the judge s court 7

8 Canon 4A(1) Judge shall conduct extra-judicial activities so they do not cast reasonable doubt on judge s capacity to act impartially 8

9 Canon 4B(1) A judge may speak, write, lecture, teach, and participate in extra-judicial activities concerning the law 9

10 Electronic Social Media Terms: 1.SocialNetworking/Social Media profile sites Participation and interaction (wall, profile, posts, liking, friending ).

11 E Terms and definitions 2.Blogs from web logs 3. Micro blogs Twitter (Limited 140 characters participation with followers) 4. RSS (Rich Site Summary) News syndication and aggregation 5. Visual Media

12 Ethical Rules Still Apply in a High Tech World Ethics Advisory Opinions Code of Judicial Conduct Disciplinary Rules of Professional Conduct Case Law

13 Ethics Advisory Opinions Friending Lawyers

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15 ETHICAL ADVISORY OPINIONS 4 8

16 Ethical Opinions NO!!! 1. Florida 2. Oklahoma 3. Massachusetts 4. Connecticut

17 Connecticut Code does not prohibit participation in Facebook and other such social media Judge must not friend attorneys who may appear before the judge Judge must not friend law enforcement officials, social workers, or persons who appear frequently in court in adversarial role Judge must avoid contacts that erode confidence in judicial independence, must maintain dignity

18 Summary of Opinions May have page but not identify self as a judge No friending attorneys, even with disclaimer Conveys impression that lawyer is in position to influence judge Bright line No tweeting

19 Ethical Opinions Yes but California 2. Kentucky 3. New York 4. Ohio 5. Tennessee 6. Utah 7. Maryland 8. ABA Opinion

20 Summary of Opinions Friend is term of art Judge may be member of social networking site Nature of social networking page. Number of friends Judge s practice in deciding whom to friend

21 Summary of Opinions Judge may friend lawyers who may appear before the judge How regularly attorney appears before judge? Whether on-line connections rise to close social relationship Recuse

22 Summary of Opinions Judge may NOT friend lawyers who have case pending before the judge. Must unfriend and disclose Employ appropriate level of prudence, discretion & decorum Stay abreast of new features Monitor

23 Good Grief Opinion.I don t know why anyone would like to be 'friended' on the network. I mean, what kind of a narcissistic society is it that people want to put out there, This is my life, and this is what I did yesterday? I mean good grief. Doesn t that strike you as strange? I think it s strange. Justice Scalia October 2013

24 Opinions Elected Judges Reality that Kentucky judges are elected and should not be isolated from the community tipped the Committee s decision. Campaign committee may post material that does not violate code of Judicial Conduct Campaign committee may establish a page where people may like if not controlled by judge

25 What Not To Do On Social Media

26 Bored on the Bench A part-time Criminal Court Judge in Brooklyn was transferred to another court after supervisors learned of his online social networking activities. On his Facebook account, the judge provided details of his location and schedule, updating his profile and status while on the bench, and posting photos of his crowded courtroom on his account. The judge also invited several lawyers to be his friend.

27 Bored on the Bench Continues The judge also had a MySpace account, which, when accessed in August 2009, listed his mood as: amorous. His MySpace page also listed at least one lawyer among his friends. The lawyer was a candidate for the State Assembly. The judge s MySpace account provided a link to the attorney s campaign website and had several postings promoting his candidacy. Matthew Sciarrino, Jr (NY 2009)

28 Let s Be Facebook Friends

29 Let s Be Facebook Friends Georgia judge resigned after allegations about his alleged inappropriate contact with a defendant through Facebook postings Woods reportedly offered the woman behind the scenes help in a criminal case Allegedly used a photo taken from the woman s Facebook page as a basis for issuing a revocation against another defendant E.H. Bucky Woods (Georgia 2009)

30 So Judge, tell us how you really feel North Las Vegas Judge Pro Tem was fired over a MySpace page that was reportedly hostile to prosecutors and used graphic language. [You be the judge] On his MySpace page, MacArthur boasted his skills in the courtroom and listed his interests as:

31 So Judge, tell us how you really feel "Breaking my foot off in a prosecutor's ass, anything relating to the NFL, video games, sex and improving my ability to break my foot off in a prosecutor's ass. MacArthur, Nevada

32 A wise Judge???? Judge friended attorney in custody case Exchanged comments about case Attorney: How do I prove a negative? Attorney: I have a very wise judge Judge: I hope I am the last day of trial Public Reprimand of Terry (NC Comm n 2009)

33 Judge engaged in private chat with woman about her brother s DUI matter In re Bass (GA Comm n 2013)

34 Judge publicly commented about pending contempt proceedings against lawyer On Facebook page In to other judges In the Matter of Allred (AL Court of Judiciary 2013)

35 Judge engaged in inappropriate conduct with regard to messages sent on his Facebook account In re Holmes (Texas Comm n 2013)

36 When Magistrates Tweet A magistrate in England was turned in by a fellow magistrate for tweeting about his cases. After resigning his position, the magistrate defended himself with the following Twitter post: I didn t tweet whilst sitting in court but in the retiring room during the break and at the end of the hearing.

37 STRATEGIES: DOs and DON Ts for Ethical Use of ESM

38 DON T Do not engage in ex parte communications Disconnect from anyone who tries Do not conduct independent investigations Do not view litigants pages

39 DON T Do not provide legal advice Do not comment on pending cases Do not allow others to do so Do not access on bench

40 DON T Do not join online groups that practice invidious discrimination Do not join groups that would erode confidence in decisions Do not allow others offensive posts to appear on your page *Consider closing accounts if problems arise

41 DO Assume everything you say & do can become public Educate yourself on policies, privacy controls Up-date settings Keep track of contents of page Consider recusal implications

42 DO Monitor changes Monitor posts and tags Be aware of security settings Use disclaimer Monitor family use and photos

43 The Benefits & Challenges of Modern Technology

44 ESM Challenges Using technology to research and investigate cases Using technology to communicate during trial or deliberations Immoral online activities and privacy Improper use of government-owned equipment

45 Perils of an On-Line Presence

46 Benefits of Technology E-Filing High Tech Courtrooms Court Websites Emergency alerts Research Legal Blogs

47 STRATEGIES: Dos and Don ts for Ethical Use of Technology 47

48 DO Appreciate and Utilize the Benefits of Technology 48

49 DO Be Aware of Inadvertent Misdirection of s programs help by guessing the address you would like to send it to You have no control over subsequent forwarding of your message 49

50 DO Use a Disclaimer CONFIDENTIALITY NOTICE: This communication may contain private, confidential, or legally privileged information intended for the sole use of the designated and/or duly authorized recipient(s). If you are not the intended recipient or have received this in error, please notify the sender immediately by and permanently delete all copies of this including all attachments without reading them. If you are the intended recipient, secure the contents in a manner that conforms to all applicable state and/or federal requirements related to privacy and confidentiality of such information. 50

51 Some Food For Thought THINK before you post. Even with privacy settings, pictures and writings may become public and could come back years later to haunt you. If your post is something you would not want certain people to see, DON T POST IT. 51

52 A Final Thought Does ESM profile reflect the professional image you wish to project: -to the public? -to the legal community? -to the judiciary?

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