Proponents of this sentencing practice argue that requiring a defendant to make a charitable contribution more effectively forces the defendant to accept responsibility for his or her actions. One minority view is found in State v. Peiger, 692 A.2d 1273 (Conn. 1997), in which the Connecticut Supreme Court affirmed a defendant’s sentence which included a condition that he make a $2,500 contribution to the hit-and-run victim’s treating hospital. The court noted that the contribution was “an effective rehabilitative penalty because it force[d] the defendant to confront, in concrete terms, the harm his actions have caused” and likely would affect him differently than a “traditional fine, paid to the State as an abstract and impersonal entity.” Id. at 1278.

Former Indiana Court of Appeals Chief Judge Wesley Ratliff, however, viewed the issue differently. In Ratliff v. State, 596 N.E.2d 241, 243 (Ind. Ct. App. 1992), the Indiana Court of Appeals determined a trial court judge did not err when he ordered two defendants to make contributions to a charity of their choice as they had agreed to do in their plea agreements. Chief Judge Ratliff (no relation to the defendant) reluctantly concurred, reasoning the defendants could not propose the charitable alternative in their plea agreements and then later claim error. Id. at 244. Nonetheless, he warned that, “But for the invited error rule, I would not concur, because I see a great potential for mischief in permitting a criminal defendant in effect to buy his way out of trouble by making a charitable contribution….Therefore, I believe plea agreements proposing a charitable contribution in lieu of penalty should not be accepted.” Id.

Judicial ethics committees and judicial conduct organizations that have weighed in on the matter have echoed Chief Judge Ratliff’s concerns and urged judges to discontinue such sentencing practices. See “Charitable Contributions as Part of a Sentence,” Judicial Conduct Reporter, Vol. 21, No. 4 (Winter 2000). In 1986, the Indiana Commission on Judicial Qualifications expressed its disapproval of a plea agreement that required a defendant to contribute to a county victim fund in lieu of paying a fine. (Ind. Adv. Op., December 16, 1986). The Commission “likened the practical effect of this sentencing practice to a ‘payoff’ in order to receive decisional favor.” See Ratliff, 596 N.E.2d at 242; see also Campbell v. State, 551 N.E.2d 1164, 1171-72 (Ind. Ct. App. 1990) (Sullivan, J., dissenting).

In Public Warning of McDougal (Texas, June 30, 1999), the Texas Commission on Judicial Conduct issued a public warning to a judge who had given traffic defendants the option of making donations to a private charity in exchange for dismissal of their tickets. By agreement with the city attorney, the judge routinely advised defendants during arraignment that the city attorney could offer them a plea bargain to make a donation to a charity of the city attorney’s choice in exchange for a dismissal of their tickets. The judge was aware that in virtually all cases the city attorney selected the city public safety committee as the designated charity, which was an organization that assisted in providing services and contributions to the city’s police department. The Texas Commission found that each time the judge granted a motion to dismiss he implicitly approved the city attorney’s selection of the public safety committee and risked creating the public perception that the police department was in a position to influence him. Id.

In addition to those scenarios, other ethics committees have disapproved of judges requiring a defendant to make a charitable contribution directly as part of a sentence (Florida Adv. Op. 84-11, 87-6; Missouri Adv. Op. 172 (1998)); as an option in lieu of performing community service or paying a fine (Michigan Adv. Op. JI-48 (1992); Missouri Adv. Op. 180 (2002); Kansas Adv. Op. JE-108 (2001) but cf. Campbell, 551 N.E.2d at 1169 and Ratliff, 551 N.E.2d at 243); as a condition of community supervision (Texas Adv. Op. 241 (1999)); or as an option for paying a civil contempt citation (Hawaii Adv. Op. 01-1).

Typically the rationale for these advisory opinions is that such sentencing practices violate ethical rules prohibiting judges from organizational fundraising and are inconsistent with a judge’s duties to avoid the appearance of impropriety and to not abuse the prestige of office to advance other’s private interests. Id. A Missouri judicial ethics committee additionally reasoned that providing defendants with the option of making a charitable donation in lieu of community service potentially could have a disparate impact and result in “unfair justice” because only wealthier defendants would have the ability to buy out the community service term. (Missouri Adv. Op. 173 (1999).

So what should a judge do when faced with a situation in which the parties propose that the defendant make a charitable contribution instead of receiving some other penalty? My best piece of advice is to refer the parties to the advisory opinions in this area in the hopes that they will see that agreeing to a charitable donation as a sentence alternative rarely is a wise idea (in fact, it is almost never a good idea).

If that doesn’t alleviate the problem, then the judge should look carefully at the proposed term and consider the potential ethical ramifications. Is the amount of the donation particularly significant? Did the defendant have the option as to where the donation should go? Is the charitable donation reasonably related to the crime committed and, thus, arguably could further defendant’s rehabilitation? Does the prosecutor, the court, law enforcement or a related office have an interest in the charity or could benefit from the gift? What penalty is the donation in lieu of? Will acceptance of the agreement lead to public distrust of the court system? After that analysis, the judge also might want to consult with several judicial colleagues on the trial bench (or staff for the judicial qualifications commission) about the propriety of the proposed disposition. If the judge finds that his colleagues raise their eyebrows, then he has a pretty good idea as to what the public, appellate court, and judicial qualifications commission also might think.

In the end, the prudent judge who wants to avoid the ethical heartburn that arises with these situations likely will come to the following conclusion—when it comes to the judge’s sentencing orders, charity is better left at home.

If any judge needs consultation regarding the subject of this article or any other matter involving judicial conduct, contact the author at 317-232-4706 or adrienne.meiring@courts.in.gov.

Specifically, Rule 2.13(A) of the Code of Judicial Conduct provides that a judge:

shall exercise the power of appointment impartially and on the basis of merit; and

shall avoid nepotism, favoritism, and unnecessary appointments.

Appointees of a judge include assigned counsel, referees, commissioners, special masters, receivers, special advocates, guardians, and other court personnel. Jud. Cond. R. 2.13, Comm. 1. “Nepotism” is defined in the Code of Judicial Conduct as “the appointment or hiring of any relative within the third degree of relationship of either the judge or the judge’s spouse or domestic partner, or the spouse or domestic partner of such relative.” Jud. Cond. R. 2.13, Comm. 2. Persons within the third degree of relationship include great-grandparents, grandparents, parents, uncles, aunts, siblings, children, grandchildren, great-grandchildren, and nieces and nephews. Jud. Cond. Terminology.

Most judges are aware of these restrictions and readily avoid hiring or appointing relatives and friends. However, from time to time, even the most ethically-cautious judge may find herself faced with the situation of wanting to hire a relative or friend because that person is well-suited for an available position. In limited circumstances (and I cannot stress the word “limited” enough), the Code of Judicial Conduct allows for a judge to hire or appoint a relative.

To decide whether hiring or appointing a relative or friend may be justifiable under the circumstances, a judge first should examine Advisory Opinion #2-98 (Note: in Advisory Opinion #2-98, Canon 3C(4) is now Rule 2.13 and Canon 2B is now Rule 2.4, available on the Court’s website at courts.IN.gov/jud-qual) and ask himself the following questions:

What is the degree, extent, or depth of the relationship of the prospective employee to the judge?

Is the position considered relatively lucrative?

Is the position permanent or temporary, full-time or part-time?

What is the amount of day-to-day supervision and contact the judge would have with the prospective employee?

Was the position announced or advertised in the same manner as other vacancies within the court?

Were other qualified applicants considered?

Close familial or social relationships between a judge and a prospective employee are more likely to lead the public to believe that factors other than merit influenced the employment decision. In these situations, not only does the judge risk damaging the public’s trust by hiring the individual, but he also risks a spill-over effect, as the public also may question the judge’s impartiality to decide cases, given their mistrust of his administrative decision-making. For these reasons, the Commission on Judicial Qualifications repeatedly has advised judges in the past that employment or appointment of a spouse likely will never be appropriate.

Similarly, the more lucrative the position, the more likely that the public will be uneasy if a judge employs or appoints a relative. In contrast, a temporary position is less likely to draw concern.
A judge should announce or advertise the position and consider other qualified applicants. If a judge has not complied with either of these prongs yet hires the relative or friend, he is opening himself to public criticism and a possible ethics investigation.

After the judge has advertised the position, considered other applicants, and carefully evaluated the other factors above, she should re-examine the qualifications of the family member (or friend). If the judge still believes that the relative (or close friend) is uniquely qualified for the position, then the judge should consult with Commission staff and consider requesting a written advisory opinion from the Commission about the propriety of hiring the individual.

Assuming that the Commission agrees that hiring the individual is acceptable, the judge should take one last step before making the final hiring or appointment decision: consider the worst case scenario. What if the employment relationship does not work out? How will that affect the judge’s family/social/work/community relationships? What if other employees do not get along with the prospective employee and those employees need to complain about that person’s performance or actions? What if the judge has to take disciplinary action against the employee? A judge would be wise to consider the potential negative consequences of hiring a relative or friend, as the failure to do so can have disastrous results.

Ultimately, here are the three best pieces of advice I can offer to a judge who is considering whether to hire a relative or friend. First, be honest with yourself. Is the individual really the best person for the job or are you motivated to hire them for other reasons? Second, make a list of all the reasons you believe this person is more qualified than all other applicants. Would your reasons withstand the scrutiny of an objective observer? And, finally, proceed with extreme caution. After all, as Aldous Huxley once noted, “Hell isn’t merely paved with good intentions, it is walled and roofed with them.”

If any judge needs a consultation regarding hiring or any other matter involving judicial conduct, contact Adrienne Meiring at 317-232-4706 or ameiring@courts.state.in.us.

Rule 3.10: Practice of Law

Rule 3.10 of the Code of Judicial Conduct provides that full-time judges may practice law only in three types of situations:

A judge may represent himself/herself on the judge’s own legal matters;

A judge may practice law pursuant to military service; and

A judge may give legal advice to and draft or review documents for family members as long as the judge does not receive compensation, does not serve as the family member’s lawyer before a tribunal, and does not sign any pleadings.

The rationale behind the general prohibition against practicing law is that the “likelihood of conflicts of interest, the appearance of impropriety, and the appearance of a lack of impartiality – all have their greatest potential in the practice of law by a full-time judge.” E. Wayne Thode, Reporter’s Notes to the Code of Judicial Conduct 90, 91 (ABA 1973). Nonetheless, both the Indiana Code of Judicial Conduct and the Model Code of Judicial Conduct attempt to balance the judge’s professional and personal roles by permitting judges to provide behind-the-scenes legal assistance to family members.

Who is defined as a “family member” under the Code?

The Terminology Section of the Indiana Code of Judicial Conduct defines “member of the judge’s family” to include “a spouse, domestic partner, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship.” The family-member exception does not apply to a close friend, even if the individual has been like a member of the family.

What is considered a “tribunal”?

Although the term “tribunal” is not defined in the Code of Judicial Conduct, use of the term in other court rules suggests that the term applies to entities besides courts of record. Rule of Professional Conduct 1.0(m) defines “tribunal” as “a court, an arbitrator, or any other neutral body or neutral individual making a decision, based on evidence presented and the law applicable to that evidence, which decision is binding on the parties involved.” Further, in Black’s Law Dictionary, “tribunal” is defined as “a court or other adjudicatory body.”

Black’s Law Dictionary, 9th ed. (2009). Given these interpretations, it is likely that the term “tribunal” includes most, if not all, administrative bodies that perform adjudicatory functions as well as courts of law.

What constitutes “behind the scenes”?

As a rule of thumb, judges should try to limit their legal activities for family members to behind-the-scenes assistance. Under Rule 3.10, a judge comfortably may provide the following legal services for family members:

Draft a will or trust agreement;

Draft or review documents incidental to a real estate transaction;

Draft letters for the family member’s signature;

Offer informal legal advice and opinions;

Conduct legal research for the family member to use.

Other situations require the judge to proceed with more caution, particularly those which would require direct contact with a party whose interest is adverse to the family member’s (i.e. attending an insurance settlement meeting when there is a dispute about a family member’s coverage). Although the Code does not prohibit a judge’s attendance when a family member is informally meeting with a legal opponent, the judge will need to exercise care to not refer to his title or office during such meetings. To further avoid any appearance that the judge is attempting to trade on the prestige of office, the judge should likewise instruct the family member to not refer to the judge’s title. For judges in smaller counties where the opposing party already knows the judge’s occupation, the judge might be wise to indicate that he is attending the meeting merely as a family representative.

Can a judge attend a court hearing with a family member to provide moral support?

Although Rule 3.10 restricts a judge from serving as the family member’s lawyer before a tribunal, a judge is not prohibited from attending a family member’s court hearing to lend emotional support to the family member. Again, the judge needs to be careful to not act in a manner that would give the impression that she is attempting to use her judicial position to influence the proceedings. To safeguard against such appearance issues, the judge attending the hearing should not refer to herself as “judge” while in the courthouse and should not permit others to do so either. The judge should not interact with others in the courthouse in a way that conveys that she has the status of an insider. The judge should not wear her robe to the proceeding.

Understandably, when family members have legal problems, judges want to help. The Code of Judicial Conduct attempts to provide some leeway so that a judge can give some support to family members while maintaining the integrity and impartiality of the judiciary. With appropriate consideration, a judge should find that he or she successfully can navigate both roles when faced with these situations.

If any judge needs a consultation regarding whether the judge may provide specific legal assistance to family members, contact Adrienne Meiring at 317-232-4706 or ameiring@courts.state.in.us.

What is the Judicial Nominating Commission?

In 1970, the Indiana Constitution was amended to create the Indiana Judicial Nominating Commission.  By Constitution and statute, the Nominating Commission is charged with vetting applications and submitting a list of the three most qualified applicants to the Governor for each vacancy that occurs on the Supreme Court, Court of Appeals, or Tax Court.  The Governor then appoints an individual from that list to fill the vacancy.

How does the Nominating Commission select its nominees?

Typically, the Commission first publicly announces the vacancy and solicits applications for the position.  After selecting appropriate applicants for further consideration, the Commission conducts background checks, publicly interviews the selected candidates, and deliberates in private about the candidates’ qualifications.  I.C. § 33-27-3 et seq.  By statute, the Commission is required to consider each candidate’s legal education, legal writings,  reputation in the practice of law, physical ability to do the job, financial interests (for conflict-of-interest purposes), public service activities, and any other pertinent information the Commission feels is important to select the most qualified candidates.  See I.C. § 33-27-3-2.  The Commission then votes in a public session for the three top nominees and submits a report to the Governor with a summary of the three nominee’s qualifications.  The Governor then has 60 days to make the final appointment.

Are there any procedures that the Governor must follow before making his selection?

No, the Governor has no restrictions in the steps he may use in making his appointment. He may interview each of the three candidates and conduct whatever process he deems appropriate in making his final decision.

What happens if the Governor doesn’t make a selection within 60 days?

Indiana Code § 33-27-3-4 provides that if the Governor does not make an appointment within 60 days, then the Chief Justice of Indiana is required to make a selection from the list of three nominees.  To date, this section has never been invoked, as no Indiana Governor has forfeited his power to appoint a justice of the Indiana Supreme Court.

How are the members of the Judicial Nominating Commission selected?

The composition of the Commission is governed by Article 7, Section 9 of the Indiana Constitution and I.C. § 33-27-2 et seq.  The Nominating Commission consists of seven members:  three attorney members, three non-lawyer members, and the Chief Justice of Indiana, who is the ex officio Chairman of the Commission.  An attorney and a non-attorney representative are chosen from each of three geographic districts of the Court of Appeals.  Attorney members serve three-year staggered terms, after being elected by the attorneys in their respective districts.   The Governor appoints the non-attorney members, one from each of the Districts, to serve three-year terms.  Other than the Chief Justice, all Commission members must reside during their tenure within the district from where they were appointed or elected.

Are there any limits on who can be a member of the Nominating Commission?

The State Constitution sets other limits regarding who may serve on the Nominating Commission.  No member of the Nominating Commission, other than the Chief Justice, may hold any other salaried public office, and no member may hold an office in a political party or organization.  Article 7, Section 9 of the Indiana Constitution further indicates that no member of the Nominating Commission is eligible for appointment to a judicial office during the member’s tenure with the Commission and for a period of three years after the expiration of his/her term.

Who is currently on the Nominating Commission?

Christine Keck, an Evansville resident and the Director of Strategy and Business Development for Renewable Energy at Energy Systems Group in Newburgh, and James O. McDonald, Esq. of Terre Haute serve as the Commission’s First District representatives.  Fred McCashland, an Indianapolis resident and retired government teacher from Brebeuf Jesuit Preparatory School, and John C. Trimble, Esq., a senior partner at Lewis Wagner, LLP in Indianapolis, serve as its Second District representatives.  Mike Gavin, a Warsaw resident and Senior Vice President, Credit Administration, at Lake City Bank in Warsaw, and John O. Feighner, Esq., a partner at Haller & Colvin, P.C. in Fort Wayne, serve as the Third District representatives.  Indiana Supreme Court Chief Justice Randall T. Shepard is the Chair.  All members have voting rights.

How many Indiana justices have been appointed under the merit selection system?

Eight.  Justice Alfred Pivarnik, who joined the Indiana Supreme Court in 1977 and served through October 1993, was the first justice selected under the nonpolitical merit selection system.  Besides the five current justices, the other justices selected under this system are Justice Jon Krahulik, who served from December 1990 to October 1993, and Justice Myra C. Selby, who served from January 1995 to October 1999.

Over the years, what has been the gender distribution of the Nominating Commission’s Supreme Court nominees?

Since 1985, the Judicial Nominating Commission has nominated eight women and sixteen men to the Indiana Supreme Court.  (Judge Betty Barteau was nominated by the Commission twice.)

How many of the Commission’s nominees were sitting judges?

Since 1985, thirteen individuals who were selected as the Commission’s final nominees were sitting judges at the time of their nominations.  (Judge Barteau was an Indiana Court of Appeals judge at the time of both her nominations.)

Given the role that recommendations play in the selection process, are current judges permitted to submit recommendation letters on behalf of a particular candidate?

Ok, so I sneaked in an ethics question, but I have been asked this one a lot in the last few months.  Yes, judges may participate in the selection process by writing letters of recommendation for particular candidates or by otherwise initiating communications or responding to inquiries from Commission members about the professional qualifications of a person considered for judicial office.  See Ind. Judicial Conduct Rule 1.3, Comment 3.  Judges even may use official court letterhead for these recommendations.

Trial courts can seek advice on judicial ethics issues
by contacting Adrienne Meiring directly at
(317) 232-4706 or ameiring@courts.state.in.us.

As a day-to-day observer of other judges and attorneys, judges often have the best vantage point to notice patterns of recurring ethical violations, to observe substance abuse or mental health problems, or to learn about serious wrongdoing which might otherwise go undetected.  Not only is it desirable for judges to take appropriate action in such circumstances, but it is critical to maintain the public’s respect for our justice system.

Exactly when am I obligated to report alleged ethical violations that come to my attention?

Of course, as most judges know, not all ethical violations are created equally and addressing ethical misconduct suitably is not always a simple equation.  While a judge often can effectively resolve minor violations with a sincere and frank discussion with the judicial colleague or attorney, the judge may find that a series of minor violations is indicative of a bigger problem which requires more significant action.  Similarly, although a judge may find that a referral to the Judges and Lawyers Assistance Program (JLAP) usually is a humane and just way to handle a judge’s or lawyer’s substance abuse problem, there certainly are times when the contemporary’s substance abuse is so pronounced and so detrimental to the public that a judge must elevate his or her response.

A judge may also struggle with the fact that not all information received about the alleged ethical misconduct of another judge or attorney is of the same caliber.  For instance, a letter penned by a disgruntled litigant who has been known to stretch the truth does not carry the same weight as a trusted staff person who reluctantly discloses information about misconduct he or she observed.

In balancing these considerations, many judges are left wondering:  Exactly when am I obligated to report alleged ethical violations that come to my attention?  Under Rule 2.15 of the Code of Judicial Conduct, a judge is required to inform the appropriate disciplinary authority when the judge has knowledge that another judge or lawyer has committed an ethical violation that “raises a substantial question regarding the judge’s [or lawyer’s] honesty, trustworthiness, or fitness as a judge [or lawyer].”  However, the judge only must take “appropriate action” if the judge receives credible information which indicates a substantial likelihood that another judge or lawyer has violated the Code of Judicial Conduct or Rules of Professional Conduct.

Additionally, Rule 2.14 of the Code of Judicial Conduct further specifies that, when addressing issues of professional impairment due to substance abuse or mental, emotional, or physical conditions, “appropriate action” may include a confidential referral to JLAP.  Comment 2 to Rule 2.14, however, warns that, “Depending upon the gravity of the conduct [resulting from the impairment] …the judge may be required to take other action, such as reporting the impaired judge or lawyer to the appropriate authority, agency, or body.”

This means  that, as a general rule, a judge will want to consider the following five variables when deciding whether he or she is ethically obligated to report the alleged ethical violations of a fellow judge or lawyer to a disciplinary body:  1) the amount and quality of a judge’s information (rumor vs. firsthand knowledge); 2) the seriousness of the offense (technical vs. substantial violation); 3) the impact of the offense (substantial harm could or did result vs. no harm); 4) the possible remedial measures a judge could take; and 5) whether prior attempts to address the violation have gone unheeded by the offending judge or lawyer.  The first three variables carry more weight than the latter two, as a judge bears a higher burden to report serious misconduct which harms others, even if there are other remedial options that the judge could take.

So what types of conduct raise a “substantial question regarding the judge’s [or lawyer’s] honesty, trustworthiness, or fitness” to serve or practice?

The Indiana Code of Judicial Conduct does not provide specific examples of the types of conduct that constitute serious misconduct, but other jurisdictions, such as Arizona and Massachusetts have published lists of ethical violations which activate the duty to report.  (See Arizona Advisory Opinion 03-3 and Massachusetts Code of Judicial Code, commentary to Section 3D).  Similar to the examples found in the Arizona and Massachusetts commentary, the following conduct is sufficiently serious that it likely triggers the reporting requirement in Indiana:

• Criminal or Deceitful Conduct – Deceitful conduct may include giving false testimony under oath or tampering with or falsifying court papers;
• Sexual Misconduct/Harassment – This includes unwanted, overt sexual advances to staff, colleagues, or members of the public that rises to the level of harassment, but more minor misconduct, such as isolated inappropriate comments, may be handled by taking other appropriate measures;
• Abuse of the Prestige of Office/Abuse of Power – This includes misusing  appointment power to show favoritism, attempting to use judicial status to receive favorable treatment during a traffic encounter, and tampering with or attempting to influence improperly the judicial action of another judge or a pending police investigation;
• Pattern of Substance Abuse or Serial Neglect – While taking other actions may be appropriate initially, a judge’s duty to report commences when a lawyer’s or judge’s substance abuse or neglect becomes routine or threatens to injure others;
• Repeated Profane or Abusive Behavior in Court/Conduct Bringing Judiciary into Disrepute – While an occasional language slip-up may not merit the attention of a disciplinary body, repeated abusive behavior by a judge or lawyer affects public perceptions of justice and tarnishes the reputation of the legal system as a whole.

Certainly, this list is not meant to be exhaustive, as other situations may arise which prompts a judge’s reporting obligation.  Ultimately, for judges who are wrestling with the decision whether to report particular misconduct, the best advice may be Jiminy Cricket’s words to the wise to “always let your conscience be your guide.”* After all, if a judge finds himself or herself deeply bothered by information, then likely others will view the matter equally as troubling.  Of course, judges are always welcome to call me for assistance with evaluating these issues.  I promise not to whistle.

Trial courts can seek advice on judicial ethics issues by contacting Adrienne Meiring directly at (317) 232-4706 or ameiring@courts.state.in.us.

*Lyric from “Give a Little Whistle” (performed by Jiminy Cricket, voice of Cliff Edwards) in Disney’s cartoon classic, Pinocchio (1940).

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. 