Advisory Opinion: Judges May 'Friend' 'Tweet' if Proper Caution Exercised

In one of the most comprehensive and detailed examinations in the nation, the Supreme Court of Ohio’s disciplinary board has issued an advisory opinion examining the ethical implications of judges using social media sites like Facebook and Twitter.

The opinion from the Board of Commissioners on Grievances & Discipline advises judges that social media use is permitted but must be done with caution, and it offers 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.

“This is a topic of great interest to the legal community because, like the rest of the nation, more judges are experimenting with social media in both their personal and professional lives,” said Jon Marshall, the board’s secretary. “For those judges who choose to use this technology, we hope this opinion gives them practical guidance on how to do so and maintain their obligations under the Code of Judicial Conduct.”

A recent national study found that 40 percent of judges report using social media profile sites like Facebook and LinkedIn, a proportion roughly equal to that in the general U.S. adult population. Smaller numbers reported using microblogging sites like Twitter and other less popular social media, but the numbers are expected to grow.

Opinion 2010-7 finds that a judge may be a “friend” on a social networking site with a lawyer who appears as counsel in a case before the judge, but cautions: “As with any other action a judge takes, a judge’s participation on a social networking site must be done carefully in order to comply with the ethical rules in the Code of Judicial Conduct.”

Among the restrictions the opinion noted judges must observe:

To comply with Jud. Cond. Rule 1.2., a judge must maintain dignity in every comment, photograph, and other information shared on the social networking site.
To comply with Jud. Cond. Rule 2.4(C), a judge must not foster social networking interactions with individuals or organizations if such communications erode confidence in the independence of judicial decision making.
To comply with Jud. Cond. Rule 2.9 (A), 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.
To comply with Jud. Cond. Rule 2.9 (C), 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.
To comply with Jud. Cond. Rule 2.10, a judge should avoid making any comments on a social networking site about a pending or impending matter in any court.
To comply with Jud. Cond. Rule 2.11 (A)(1), 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 or party. There is no bright-line rule: not all social relationships, online or otherwise, require a judge disqualification.
To comply with Jud. Cond. Rule 3.10, a judge may not give legal advice to others on a social networking site.
The opinion concluded: “To 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 the social networking site policies and privacy controls, and be prudent in all interactions on a social networking site.”

A copy of the opinion is available at: http://www.supremecourt.ohio.gov/Boards/BOC/Advisory_Opinions/2010//op_10-007.doc.

Contact: Ruth Bope Dangel at 614.387.9370 or Chris Davey at 614.387.9250.

Canon 2 (C) (5) of the Ohio Code of Judicial Conduct

I recently attended a seminar on ethics that dealt with whether a judge or judicial officer can ethically receive any sort of gift. The giving of gifts is covered by Canon 2, (C) (5) of the Ohio Code of Judicial Conduct. Here is a copy of that Canon:

(5) A judge shall not accept and shall urge members of the judge's family residing in the judge's household not to accept a gift, bequest, favor, or loan from anyone except for:

(a) A gift incident to a public testimonial, books, tapes and other resource materials supplied by publishers on a complimentary basis for official use, or an invitation to the judge and the judge's spouse or guest to attend a bar-related function or an activity devoted to the improvement of the law, the legal system, or the administration of justice;

(b) A gift, award, or benefit incident to the business, profession, or other separate activity of a spouse or other family member of a judge residing in the judge's household, including gifts, awards, and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award, or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties;

(c) Ordinary social hospitality;

(d) A gift from a relative or friend for a special occasion such as a wedding, anniversary, or birthday if the gift is commensurate with the occasion and the relationship;

(e) A gift, bequest, favor, or loan from a relative or close personal friend whose appearance or interest in a case would in any event require disqualification under Canon 3(E).

(f) A loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges;

(g) A scholarship or fellowship awarded on the same terms and based on the same criteria applied to other applicants; or

(h) Any other gift, bequest, favor, or loan, only if the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge and, if its value exceeds one hundred fifty dollars, the judge reports it in the same manner as the judge reports compensation in division (D) of this canon.
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