I’ve posted several blogs recently about the impact and implications of modern technology for neutrals, such as the judiciary’s use of sophisticated Information Technology (IT) and internet sources in its decisions, and the increasing use and questionable reliability of internet-based primary sources. Now, I turn to social media.
I or my firm is a member of various social media: the ubiquitous Facebook; the quick & dirty Twitter; profile-building (I hope!) Blogger; and the imminently useful and informative LinkedIn. When signing up with LinkedIn, it automatically searched my email for contacts already on LinkeIn, and offered to extend an invitation to “connect” with the email “contacts.” I am a lawyer and a labor neutral, and my contacts not surprisingly included a number of labor and management representatives, and also lawyers from a number of different walks. Moreover, once on LinkedIn, I signed up to follow a variety of interest groups, some members of which—presumably those interested in my Twitter and/or Blogger postings—have since “connected” with or begun to "follow" me.... Have I committed ethics violations???
I ask this question half in sarcastic exasperation at the nay-saying “old guard” which would seem to urge me to sit in a dark closet eating dry wafers and waiting to be called for a job, lest I be tainted--or perceived as tainted--by some inadvertent social contact with a hypothetical or potential “party” to an existing or future dispute. But I also ask it in a spirit of honest, if slightly puzzled, self-reflection. Since signing up with LinkedIn, I’ve periodically wondered what other neutrals and/or prospective parties would think of it. However, my concerns came to a head recently as I read, "The Black Hole Effect: When Internet Use and Judicial Ethics Collide," by Judge Herbert B. Dixon, Jr. (Fall 2010 ABA Judges' Journal). My curiosity piqued, I researched further and realized this is a timely topic that has spawned a spate of other articles, as well as another Advisory Commission Opinion, various formal Guidelines, and so forth. So, I’d like to update Judge Dixon’s resources, and put my own observations and questions to you.
BACKGROUND STATISTICS
Before turning to specific cases and opinions, let’s first pause to put my—or your—social media use in context.
In a 2010 Report, “Social Media Ethical Traps…and how to avoid them,” Carole Levitt points to widespread use by lawyers and laypeople, citing a 2009 Internet for Lawyers survey, and a February 2010 Pew Internet & American Life Project survey. Sixty-two percent (62%) of the respondents to the (admittedly small) Internet for Lawyers survey stated they had a social media profile. The broader Pew survey indicated 47% of adults on line use social networking sites, and 52% of those have more than one such site.
Thus, lawyers appear to be prolific social media users, at a slightly higher rate than the larger lay population. But what about judges? Well, the Ohio Supreme Court’s website cites an unidentified national study, finding that 40% of judges report using social media today. See Advisory Opinion: Judges May ‘Fiend’ ‘Tweet’ if Proper Caution Exercised (Dec. 8, 2010).coming an issue.
In light of these statistics, it is not surprising that the implications for judicial ethics is increasingly being discussed and weighed.
CASES AND ADVISORY OPINIONS
In The Black Hole Effect, Judge Dixon discusses six jurisdictions in which a case, potential case, or advisory opinion has arisen in the last couple of years concerning judicial conduct on Facebook. Judge Dixon also comments on the mixed message these cases send. As he aptly puts it, “[w]here one jurisdiction might erect a wall to prevent a judge’s fall on the slippery slope beyond which there is no recovery, another jurisdiction may erect a caution sign that requires the judicial officer to exercise appropriate discretion.” Id.
Half of the six matters discussed by Judge Dixon Judge Dixon indicate judges should not use social media such as Facebook. Two of these three concerned actual conduct. One, from Georgia, was discussed in the news and lead to the judge’s voluntary early retirement after it was disclosed that he had been involved in ex parte Facebook communications with a defendant in a matter pending before him and also gave that party legal advice in the pending and other legal matters. The second was from North Carolina, and resulted in the reprimand of a judge who “friended” an attorney appearing before him on Facebook, and the two then proceeded to indirectly discuss the matter by posting and viewing updates on their respective Facebook “walls.”
In these two cases, the reprimand or threat of discipline was clearly based on the underlying facts. Only one jurisdiction to date has come unequivocally down on the "no" side of the line, and it has done so in purely advisory situations involving no precipitating misconduct.
In two opinions, the Florida Judicial Ethics Advisory Committee has nixed judicial use of Facebook. The first opinion, Advis. Op. No. 2009-20, forbade its judiciary from adding as friends any attorney who may appear before them. The subsequent opinion, Advis. Op. No. 2010-6, forbade its judiciary from such “friendship” even if all attorneys were invited to such friendship and/or the judge’s page included a disclaimer that the term “friend” merely means a professional acquaintance. In reaching these conclusions, the Florida Committee concluded that “the issue is not whether the lawyer actually is in a position to influence the judge, but instead whether the “proposed conduct, the identification of the lawyer as a ‘friend’ on the social networking site, conveys the impression that the lawyer is in a position to influence the judge.”
Like the way my—and your—50 to 500 best friends on Facebook are perceived to influence us, with their gifts of hearts and flowers, and their daily updates on their farm animals and mafia wars, no?
Well, that is pretty much the response of the other jurisdictions discussed in Judge Dixon’s article, as well as the Ohio disciplinary board in a subsequent Advisory Opinion. Other than in the Florida advisory opinion, and where the question is raised in the context of specific and egregious acts of misconduct, various ethics commissions appear to give a “qualified yes” to judges’ use of social media. See, e.g., Ethics Comm. of the Kentucky. Judiciary, Formal Jud. Ethics Op. JE-119 (2010).
The Kentucky Commission observed “the designation of a ‘friend’ on a social networking site does not, in and of itself, indicate the degree or intensity of the judge’s relationship with th[at] person,” and terms such as “friend,” “fan,” and “follower” are “terms of art used by the site, not the ordinary sense of those words.” Id. Similarly, the New York Committee pointed out there is nothing “inherently inappropriate about a judge joining and making use of a social network,” and “[a] judge generally may socialize in person with attorneys who appear in the judge’s court, subject to” the relevant rules of conduct. See NY. Advisory Comm. on Jud. Ethics Op. 08-176 (2009); see also Supreme Court of Ohio, Board of Comm. on Grievances and Discipline, Op. No. 2010-7 (Dec. 3, 2010).
The South Carolina Committee found the whole issue of judicial “friendship” with potential parties or witnesses so non-controversial that it could be dispatched in a single sentence: a magistrate judge “may be a member of Facebook and be friends with law enforcement officers … as long as they do not discuss anything related to the judge’s position as magistrate.” It added, quite insightfully, that “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.”
Even a minority of the members of the Florida Committee in Advis. Op. No. 2009-20 apparently did not agree with the majority’s restrictions. Judge Dixon reports they felt “the term ‘friend’ on these pages does not convey the same meaning that it did in the pre-Internet age” and instead now “merely conveys the message that the person so identified is a contact or acquaintance...” See Judge Dixon, The Black Hole Effect.
WHAT IS THE UPSHOT, AND ARE THESE CONCERNS
APPLICABLE TO ALJs AND ARBITRATORS?
Assuming the “qualified yes” view, rather than that of Florida’s unequivocal “no,” is more representative of the dominant view at this point in time, what is the upshot and does it apply to other neutrals as well?
I’d say it’s pretty clear that the rule is not clear and, as usual, all neutrals must be guided by their good judgment. There is a pretty wide swath of permissible ethical responses to any situation and your personal comfort level may well differ—and even pretty dramatically—from the neural standing next to you. That doesn’t mean if it feels good do it. My point is, rather, that we should not get wigged out just because we do have a different comfort level. At the same time, however, we should all continue to “reality check” ourselves and our personal comfort level by discussing these issues with our colleagues. And, as the New York Committee observed, we must stay abreast of the features and mores of, and changes to, these emergent new forms of social media, with a constant eye towards our ethical duties and public perceptions.
Even if we were all to agree that neutrals may participate in social media, I don’t think anyone would disagree with the Kentucky's caution that “social network sites are fraught with peril for judges,” and any qualified acceptance of their usage by does not thereby mean the neutrals “may participate in such sites in the same manner as members of the general public.”
And here I stress “neutral,” because Administrative Law Judges (ALJs) and Arbitrators are generally subject to the same relevant rules of conduct as members of the judiciary. All the opinions discussed here base their prohibitions or cautions on the following essential rules, as pointed out by the U.S. Judicial Conference’s Committee on Codes of Conduct, in the related context of conduct by judicial employees:
- maintenance of confidentiality;
- avoiding impropriety in all conduct;
- not lending the prestige of the office;
- not detracting from the dignity of the court or reflecting adversely on the court;
- not demonstrating special access to the court of favoritism;
- not commenting on pending matters; … [and]
- avoiding association with certain social issues that may be litigated or with organizations that frequently litigate.
Id., Resource Packet for Developing Guidelines on Use of Social Media by Judicial Employees (2010), at 7; see also Uniform Code of Judicial Conduct.
Notably, all of these rules apply equally well to other neutrals. See, e.g., Uniform Code of Ethics for Administrative Law Judiciary; and Federal Mediation and Conciliation Service (FMCS) and American Arbitration Association Codes.
SPECIFIC GUIDELINES OFFERED
Having covered the sure pitfalls and perilous risks, you—like I—may be feeling a little overwhelmed, and daunted if you are engaged at all in social media. However, we can all take heart in the extraordinarily clear and thoughtful guidelines recently provided by the Supreme Court of Ohio, Board of Comm. on Grievances and Discipline, after review of the foregoing cases and opinions:
- a judge must maintain dignity in every comment, photograph, and other information shared on the social networking site…;
- a judge must not foster social networking interactions with individuals or organizations if such communications erode confidence in the independence of judicial decision making…;
- a judge should not make comments on a social networking site about any matters pending before the judge—not to a party, not to a counsel for a party, not to anyone…;
- a judge should not view a party’s or witnesses’ pages on a social networking site and should not use social networking sites to obtain information regarding the matter before the judge…;
- a judge should avoid making any comments on a social networking site about a pending or impending matter in any court…;
- a judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer for a party, …[but] [t]here is no bright-line rule: not all social relationships, online or otherwise, require a judge’s disqualification …;
- a judge may not give legal advice to others on a social networking site …; [and]
- [t]o ensure compliance with all of these rules, a judge should be aware of the contents of his or her social networking page, be familiar with social networking site policies and privacy controls, and be prudent in all interactions on a social networking site.
Id., Op. No. 2010-7 (Dec. 3, 2010), at 8-9.
If you are interested in ethical, tech savvy arbitration, mediation, or contract ALJ services, please contact Pilar Vaile, P.C. at (505) 247-0802 or info@pilarvailepc.com. (Do not contact me via Linked In or Facebook please...)
Resources:
Judge Herbert B. Dixon, Jr., "The Black Hole Effect: When Internet Use and Judicial Ethics Collide," Fall 2010 ABA Judges' Journal.
Carole Levitt, “Social Media Ethical Traps…and how to avoid them” (2010), available at http://www.abanet.org/labor/lel-aba-annual/2010/materials/data/papers/Levitt.pdf.
“Advisory Opinion: Judges May ‘Friend’ ‘Tweet’ if Proper Caution Exercised “(Dec. 8, 2010), available at http://www.supremecourt.ohio.gov/PIO/nerws/2010/BOCadvisoryOp_
Kathryn Hayes Tucker, “Ga. Judge Steps Down Following Questions About Facebook Relationship with Defendant,” Law.com (Jan. 7, 2010), http://www.law.com/jsp/article.jsp?id=1202437652986&hbxlogin=1.
N.C. Jud. Standards Comm’n Public Reprimand, Inquiry No. 08-234 (2009), available at http://www.aoc.state.nc.us/www/public/coa/jsc/publicreprimands/jsc08-234.pdf.
Fla. Judic. Ethics Advisory Comm., Op. No. 2009-20 (2009), available at http://www.jud6.org/LegalCommunity/LegalPractice/opinions/jeacopinions/2009/2009-20.html.
Fla. Judic. Ethics Advisory Comm., Op. No.2010-06 (2010), available at http://www.jud6.org/LegalCommunity/LegalPractice/opinions/jeacopinions/2010/2010-06.html.
Ethics Comm. of the Ky. Judiciary, Formal Jud. Ethics Op. JE-119 (2010), available at http://courts.ky.gov/NR/rdonlyres/FA22C251-1987-4AD9-999B-A326794CD62E/0/JE119.pdf.
NY. Advisory Comm. on Jud. Ethics Op. 08-176 (2009), available at http://www.nycourts.gov/ip/judicialethics/opinions/08-176.htm.
S.C. Advisory Commm. on Standards of Jud. Conduct, Advisory Op. No. 17-2009 (2009), available at http://www.judicial.state.sc.us/advisoryOpinions/displayadvopin.cfm?advOpinNo=17-2009.
Supreme Court of Ohio, Board of Comm. on Grievances and Discipline, Op. No. 2010-7 (Dec. 3, 2010), available at http://www.supremecourt.ohio.gov/Boards/BOC/Advisory_Opinions/2010/op_10-007.doc.
Resource Packet for Developing Guidelines on Use of Social Media by Judicial Employees, Committee on Codes of Conduct, Judicial Conference of the United (2010).
