Nicole Black, BridgeTower Media Newswires
Ever since the November election, the political climate has been divisive and online rhetoric has heated up. The immediacy of social media has provided ample opportunities for people, including judges and lawyers alike, to sound off on political issues — and in many cases later regret their impulsive decisions. I’ve written about a few of those cases in my prior columns and have cautioned lawyers and judges to think before posting because, like it or not, the internet is forever.
Fortunately, now that social media is commonplace, ethics committees across the country have recognized the need to provide guidance to lawyers and judges regarding social media use. Case in point, Federal Judiciary Committee on Codes of Conduct Advisory Opinion No. 112 (online at p. 221: http:// www.uscourts.gov/sites/default/files/vol02b-ch02.pdf), which was handed down earlier this year and provides guidance for federal judges and their employees who seek to use social media.
At the outset, the committee wisely acknowledged the ever-changing nature of social media platforms and technology in general. Importantly, the committee echoed one of my oft-repeated pieces of advice regarding social media: the medium doesn’t change the message. The committee explained that “the Canons cover all aspects of communication, whatever form they may take, and therefore offers general advice that can be applied to the specific mode. In short, although the format may change, the considerations regarding impropriety, confidentiality, appearance of impropriety and security remain the same.”
Next the committee turned to online expression by judges and recommended that judges briefly pause prior to posting and consider the potential ramifications of their actions: “The committee therefore cautions judges to analyze the post, comment, or blog in order to take into account the Canons that prohibit the judge from endorsing political views, engaging in dialogue that demeans the prestige of the office, commenting on issues that may arise before the court, or sending the impression that another has unique access to the Court.”
Another important idea addressed by the committee was the need to avoid the appearance of impropriety when using social media. The committee took the more conservative stance in this regard and opined that “social media exchanges need not directly concern litigation to raise an appearance of impropriety issue; rather, any frequent interaction between a judge or judicial employee and a lawyer who appears before the court may ‘put into question the propriety of the judicial employee’s conduct in carrying out the duties of the office.’…With respect to judges, communication of this nature may ‘convey or permit others to convey the impression that they are in a special position to influence the judge.’”
Finally, the committee emphasized that judges and their employees must understand the permanent nature of social media, even when posts are made to purportedly “private” forums. The committee reiterated the concept that the internet is forever and as a result, online posting made be made with that principle in mind: “Due to the ubiquitous nature of information transmitted through the use of social media, judges and employees should assume that virtually all communication through social media can be saved, electronically re-transmitted to others without the judge’s or employee’s knowledge or permission, or made available later for public consumption.”
In other words, the committee’s recommendations mirrored those of many other judicial ethics committees that have opined on these matters. The bottom line for judges: The online is simply an extension of the offline. The internet is forever, so think before you post, avoid controversial topics and avoid the appearance of impropriety when posting or interacting online.
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycase.com.
