The American Bar Association weighs in on judges' use of social media in a recent opinion.

The American Bar Association weighs in on judges' use of social media in a recent opinion.

Judges’ use of social media doesn’t compromise their ethical obligations any more than other modes of social interaction if they’re careful, according to recent opinion from the American Bar Association. The ABA opinion’s conclusions are very similar to an Ohio advisory opinion from 2010.

In addition to addressing the issue in general terms in relation to the ABA Model Code of Judicial Conduct, Formal Opinion 462 also discusses social media use in judicial campaigns.

As for disclosure or disqualification concerns, the opinion bases that line call on the context of the situation.

“A judge who has an ESM (electronic social media) 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,” according to the opinion. “Simple designation as an ESM connection does not, in and of itself, indicate the degree or intensity of a judge’s relationship with a person.”

The opinion includes several precautions for judges or judicial candidates running for election:

• Avoid personally creating or maintaining social media campaign sites by leaving those duties to campaign committees.
• Be aware that clicking “like” on other sites may run afoul of prohibitions against endorsing or opposing candidates.
• Manage privacy settings to restrict how many people can access the judge’s or judicial candidate’s site.

“A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety,” the opinion’s headnote states. An accompanying footnote points out that “the laws, court rules, regulations, rules of professional and judicial conduct, and opinions promulgated in individual jurisdictions are controlling.”

A December 2010 advisory opinion from the Ohio Supreme Court’s Board of Commissioners on Grievances & Discipline came to similar conclusions as the ABA opinion. The Ohio opinion advised judges that social media use is permitted but must be done with caution, and it offered wide ranging, specific guidance to judges on how to navigate the new waters of social media without violating judicial canons that require judges to avoid even the appearance of bias or impropriety.

A 2012 national New Media and the Courts survey by the Conference of Court Public Information Officers showed that more judges and courts report using social media like Facebook and Twitter. The survey also showed that the percentage of judges who strongly agree that their own use of the technologies poses no threat to professional ethics has doubled since the first year of the survey. This applies whether the technologies are used in personal or professional lives.

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