During the course of their professional lives, judges often have ethical questions about the application of the Code of Judicial Conduct to particular situations. Should a judge disqualify from a particular case? May a judge attend and participate in a specific fundraiser? What should a judge do about an ex parte communication that the judge just received? As Counsel to the Indiana Commission on Judicial Qualifications, I am available to provide advisory assistance to Indiana judges whenever they have ethical issues or questions. Any judge can call on me for help in navigating through the Judicial Code.
After providing advice to judges over the last year, I’ve noticed a number of recurring questions from judges around the State. The purpose of this column is to address some of these routine ethical questions.
In this inaugural column, I am picking up on an article in the most recent issue of Court Times concerning the use of social networking sites, Social Media and the Employer, by Brenda Rodeheffer. She explored the idea of examining such sites as an employment tool. Undeniably, these sites can be a wealth of information relevant to employment issues, and using these sites for that purpose certainly comports with the Code of Judicial Conduct. A number of judges, however, have asked whether it is ethically permissible for judges to join internet-based social networks and to create personal and/or professional profiles? And, if it is generally acceptable, are there any ethical considerations that judges should be aware of when using these networks?
The quick answer to the first question is that judges generally can join internet social networks. Under Rule 3.1 of the Indiana Code of Judicial Conduct, judges are permitted to engage in extrajudicial activities so long as the activities do not otherwise violate the Code. The mere fact that the activity involves communication through advanced technology does not make it inherently problematic under the Code.
However, when deciding whether to join a specific internet social network, a judge should consider whether participating in the network could lead to frequent judicial disqualification in matters pending before the judge. For example, a judge who regularly hears debt actions would want to avoid an internet network group that is devoted to the interests of debt collection attorneys.
Judges also should consider whether joining certain networks would give the appearance of undermining the judge’s independence, integrity, or impartiality. By way of example, while joining a network devoted to various social interests certainly is permissible, a judge might want to think twice about joining a group called “Legalize Marijuana” or “Alcohol Improves My Foreign Language!” Even when a judge uses only general network groups (e.g. LinkedIn or a personal profile page on Facebook), the judge should always be mindful of the public aspect of these networks and adjust his/her postings accordingly so as to not run afoul of a judge’s ethical obligation to act at all times in a manner that promotes confidence in the judiciary.
A judge likewise should consider the appearance created when an attorney or someone else appearing in the judge’s court is connected to the judge through networks like Facebook or MySpace. Although the relationship may not be close enough to require disqualification, an opposing party may have questions or concerns about the potential for inadvertent ex parte communications on the network about the case. To avoid issues, the judge may want to remove the attorney or party as a “friend” from his Facebook or MySpace list until the case is over.
Although LinkedIn also allows for attorneys and judges to network, it is not necessary for a judge to remove an attorney from a LinkedIn group simply because the attorney has a case pending before the judge. LinkedIn limits the ability to post anything more personal than the same information that can be found on a resume or curriculum vitae, so concerns about an appearance of impropriety are lessened. Essentially, the level of connection on LinkedIn is more akin to what is seen between participants in a bar association subsection or an alumni association. Additionally, the danger of receiving an inadvertent ex parte communication is lessened on LinkedIn since there is not the ability to post daily musings.
Even the most considerate judge who has taken steps to minimize conflicts and other ethical issues when using social networking sites should be prepared to deal with unexpected issues that may arise. For example, upon learning the judge’s identity, other users of the network may ask for legal advice or seek comment about a pending matter. Worse yet, a judge occasionally may find himself or herself receiving ex parte information about a pending case (even if the person is not a party or attorney on the case). The judge may want to have pattern responses for dealing with these situations and, if an ex parte communication is received, take whatever corrective action is necessary.
In short, there is no reason that the technologically-savvy judge cannot enjoy internet social networking so long as certain precautions are taken. As a sister judicial ethics advisory commission in New York noted, at a baseline, judges should “employ an appropriate level of prudence, discretion and decorum in how they make use of this technology.” (See New York Advisory Opinion 08-176 at www.nycourts.gov/ip/judicialethics/opinions/08-176.htm). That’s a pretty good rule of thumb for anyone using the Internet.