Bell & Thompson: 3 things to know about judges and the use of social media

The use of social media keeps growing. One presidential candidate is now on TikTok, another started his own platform, and we just read that 30% of adults get their news from Facebook. We also read that if you put your ear to the ground and listen closely, you can hear Walter Cronkite crying in his grave.

Many lawyers use social media to market their practice, to “humble brag,” and to vent about the practice of law. In utilizing social media, lawyers have violated the Indiana Rules of Professional Conduct by revealing confidential client information, providing false or misleading information about their practice, and by saying not-so-nice things about judges.

Some judges choose to be on social media, but in doing so, they likely take on more risk than lawyers do. This article will explain some of the reasons why this is true. Here are three things to know about judges and social media.

Judges don’t get a moment off

When does the Indiana Code of Judicial Conduct allow judges to take a break from being judges? In short: Never. It’s like being a Jedi. Yoda never took a moment off and according to the code, neither should judges.

If you don’t believe us, take a look at the preamble to the code which states that a judge “should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.” Preamble to Ind. Judicial Code (Emphasis added.)

Some of these principles are codified in Rule 1.2 which states that a “judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” (Emphasis added.)

Of course, it does not take a legal scholar to piece together that “at all times” would include any time a judge is on social media. In addition, while a judge should be able to avoid impropriety with minimal effort, creating an “appearance” of impropriety while online, can sometimes be unintentional.

Judges can have attorney ‘friends’ (if they really want them)

Judges are allowed to be on social media, and they are even allowed to have attorney “friends.” See ABA Formal Opinion 462. In the real world – where we interact in a face-to-face manner (and not on-line) – “’friendship’ alone may not be enough to require recusal.” L.G. v. S.L., 88 N.E.3d 1069, 1072-73 (Ind. 2018).

Given this, one might wonder whether a judge should “friend” other attorneys online, especially those who have cases pending before the judge. As it turns out, judges can connect with those lawyers, but in doing so, judges need to consider whether the “friend” connection necessitates disclosure to parties or possible disqualification.

According to the ABA, a “[s]imple designation as an ESM (Electronic Social Media) connection does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person.” ABA Formal Opinion 462 at pp. 2-3. A “judge who has an ESM connection with a lawyer or party who has a pending or impending matter before the court must evaluate that ESM connection to determine whether the judge should disclose the relationship prior to, or at the initial appearance of the person before the court.” Id. at 3. For example, “a judge may decide to disclose that the judge and a party, a party’s lawyer or a witness have an ESM connection, but that the judge believes the connection has not resulted in a relationship requiring disqualification.” Id.

Judges need to be boring in posts and watch what they ‘like’ and ‘share’

Although having “friends” online is not prohibited, judges should be careful in their interactions. For example, a judge “liking” a “friend’s” post can be viewed as an endorsement or support for that person, organization, or cause. See In the Matter of Whitmarsh, 2106 WL 7743777 (New York State Commission on Judicial Conduct December 28, 2016). Likewise, sharing or reposting another’s post can be viewed as adopting the statements contained within that post. See Lammey (Tennessee Board of Judicial Conduct November 15, 2019); See also Public Reprimand of Burkeen (Texas State Commission on Judicial Conduct February 21, 2018). Of course, the actions of “sharing” or “liking” can raise questions about a judge’s lack of impartiality or an appearance of impropriety.

Given the accessibility, widespread transmission, and permanence of material posted online, judges must also use caution when creating posts or commenting on social media – even if the posts are regarding matters in their personal lives. For example, In the Matter of Whitmarsh, the New York State Commission on Judicial Conduct disciplined a judge for making a Facebook post about a pending matter in a neighboring court. Judge Whitmarsh posted that she felt “disgust for a select few” that the defendant had been charged with a felony rather than a misdemeanor because of a “personal vendetta,” that the investigation was the product of “CORRUPTION” caused by “personal friends calling in personal favors,” and that the defendant had “[a]bsolutely” no criminal intent.” See also In re Bennington, 24 N.E.3d 958, 964 (Ind. 2015)(judge disciplined for posting an “injudicious comment” regarding her child’s father’s demeanor toward child support).

Conclusion

The lessons above are not limited to just interactions in social media. Judges are judges “at all times” and their interactions and extra-judicial activities can cause reasonable people to call into question the judge’s integrity and impartiality. However, given the public nature of social media, social media gathers more scrutiny than other activities because it is easy to view, monitor, prove, and question a judge’s interactions with others.•

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James J. Bell is a partner and Janet Lynn Thompson is an associate at Hoover Hull Turner LLP. Opinions expressed are those of the authors.