By Hon. Julie J. Bernard and Keith R. Fisher
Social media has become part of life, and judges are not expected to live and work in isolation of the world around them. Facebook, X (formerly known as Twitter), Snapchat, Instagram, and LinkedIn are now household words. These platforms play an increasing role in social and professional intercourse, as well as the dissemination of information (and sometimes disinformation). Since most people consume their information online, courts are now connecting with the public in real time on social media to increase public awareness and understanding of the judicial system. The Massachusetts Trial Court uses X and has a Facebook page to share public information, resources, and announcements.
Individual judges can partake in the social media conversation, too, if their actions are consistent with the Massachusetts Code of Judicial Conduct (“CJC”). Other jurisdictions have reached the same conclusion. Wearing a robe is an honor but also entails certain responsibilities to the judiciary as an institution. Judges’ personal use of social media can cause problems by creating an appearance of bias or impropriety, and erode public trust and confidence in the judicial system.
This article is intended to highlight several common pitfalls and perils for judges of social media use in an increasingly discordant milieu.
Assume Nothing Is Private!
CJC Rule 2.5 requires competence in performing judicial and administrative duties.[i] Judges using social media should acquaint themselves with the security and privacy policies, rules, and settings, periodically review them, and exercise caution.[ii] Even seemingly “private” posts and messages, some of which might prove embarrassing (individually or to the judiciary as a whole) if publicly revealed, can easily be captured by a screenshot.
Do not rely on the privacy settings: Once you have posted something, you lose control of it and very likely will not be able to retract it. Social media posts may be disseminated to thousands of people without your knowledge or consent.[iii] Worse yet, these data have long, perhaps permanent, digital lives and may be recovered, circulated, or printed years after being sent. Moreover, electronic communication, devoid of in-person visual or vocal cues, can readily be taken out of context, misinterpreted, or altered. Some representative disciplinary matters include:
- In the Matter of Bearse, Public reprimand (Minn. Bd. Jud. Standards, Nov. 20, 2015) (judge erroneously believed his account could be viewed only by approximately 80 family members, friends, and members of his church).
- In the Matter of Whitmarsh, Determination (N.Y. Comm’n Jud. Conduct, Dec. 28, 2016) (judge intended her criticism of felony complaint to be seen only by her 352 Facebook “friends” but forgot she had set her privacy settings to “public”).
- In the Matter of Quinn, Public reprimand (Minn. Bd. Jud. Standards, Mar. 9, 2021) (although judge maintained a private Facebook page, he had 70 “friends”; operating a private Facebook page with “friends” provides no shield for violating Code of Judicial Conduct).
The Poison of Politics
Particularly toxic to public perceptions of judicial impartiality and fairness is offering political statements, opinions, or rants. Judges must be aware of this in their personal capacity, but there is also a trap for the unwary regarding those they supervise, including court staff, law clerks, and judicial externs.[iv] Massachusetts ethics opinions have been clear there is an ethical obligation to report another judge’s social media misconduct. A judge who views another judge’s profile on Facebook and learns that it displays political posts, media coverage and bias, links to articles about politics, internet memes about politics, expressions of political opinions, or exchanges about politics has “knowledge” for purposes of CJC Rule 2.15(A) of violations that raise a substantial question regarding the other judge’s fitness as a judge and is required to report it.[v] Judges should also advise family and friends they are connected with to exercise caution in their online posts and musings.
The political divisiveness of recent years has been mirrored in judicial disciplinary cases:
- In the Matter of a Judge, SJC No. OE-150 (Mass. Dec. 22, 2022) (public reprimand for “making posts on social media that expressed views on political candidates, political figures and issues, and posts that could create the appearance of bias based on gender, ethnicity, or immigration status”)
- In re Kwan, 443 P.3d 1228 (Utah 2019) (6-month suspension without pay for, inter alia, asking in a Facebook post about then-presidential candidate Donald Trump: “Is the fact that the IRS has audited you almost every year when your peers hardly ever or never have been, something to be proud of? What does that say . . . about your business practices?”)
- Matter Concerning Gianquinto (Cal. Comm’n Jud. Performance Aug. 22, 2018) (public censure and debarment for (1) posts and re-posts on his public Facebook page that reflected anti-Islam, anti-illegal immigrant, anti-Native American, anti-gay marriage and transgender, anti-liberal, and anti-Democrat sentiment, and (2) representing that he had taken the posts down when that was not true, although he believed the posts were no longer publicly viewable).
- In the Matter of Quinn, Public reprimand (Minn. Bd. Jud. Standards, Mar. 9, 2021) (publicly reprimand for “liking” Donald Trump’s Facebook page, “liking” a post which said that Joe Biden is a “disgrace,” and posts on the page and posting screenshots of newspaper photos of himself piloting a boat in the Trump Boat Parade).
- In re Mark B. Cohen (Penn. Ct. Jud. Discipline, Complaint filed Feb. 23, 2023) (pending) (alleging dozens of improper political posts on judge’s personal Facebook page supporting the left and disparaging the right).
Social Media Relationships and Opinions
A judge must be wary of endorsing posts by others through “some affirmative action” which can create the impression that the judge has adopted the comments.[vi] If something written online by someone else would be inappropriate for you to say as a judge, then it’s wrong to “like,” “follow,” repost, or otherwise endorse it.[vii] Posting a heart, a “thumbs up,” or some similar type of emoji will be deemed endorsement or adoption of the comment or statement in question.
Online reviews can also lead to difficulties. When in doubt, don’t. But if so inclined, be sure that nothing in your review can identify you as a judge.[viii] Otherwise, you could run afoul of abusing the prestige of judicial office under CJC Rule 1.3. Reviews should only be posted to “crowdsourced”[ix] sites (like Yelp, TripAdvisor, or Open Table), not to other sites.[x] Were a judge to write a review appearing on the website of the business itself, that would violate the rule.
When it comes to “friending” attorneys, different jurisdictions have adopted significantly different approaches. Some prohibit it on the grounds that it can convey the impression that the lawyer is in a special position to influence the judge.[xi] Perhaps the broadest view was taken by Utah, which has permitted “liking” and “following” on Facebook (even “liking” law firms) and even “following” on X, all on the rationale that these practices don’t “convey much about a judge’s thoughts on a topic.”[xii]
The Massachusetts Committee on Judicial Ethics initially adopted a firm position against judges “friending” attorneys online,[xiii] interpreting the CJC to “prohibit a judge from being Facebook friends with any attorney who is reasonably likely to appear before that judge.”[xiv] The Committee went even further and ruled that judges must affirmatively review their lists of “Facebook friends and ‘unfriend’ attorneys who are reasonably likely to appear before [them].”[xv] Given the proliferation of Facebook “friends” and the onerousness of monitoring them, however, the Committee has revised its initial opinion requiring disclosure of “former Facebook friends”;[xvi] judges are no longer “presumptively” required to make that disclosure but should “exercise sound discretion based on all the facts” to make that decision.[xvii]
Social media and technology have changed society in positive ways. It has also changed judicial practice. Social media use and the consequences of it are sometimes present in our courtrooms every day. If a judge is an active social media user, they have an obligation to keep abreast of developments with ethical rules, including the evolving landscape of social media use and technology. While social media use can better connect judges to their communities, one must be mindful of the perils of reckless or careless personal use of this dynamic technology.
[i] In 2015, Comment 8 to Rule 1.1 of the MA Rules of Professional Conduct was amended to state: “to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, and engage in continuing study and education.” All Massachusetts lawyers therefore have a professional obligation to stay current with emerging technologies relevant to the practice of law and their individual areas of practice.
[ii] See N.Y. Jud. Ethics Adv. Op. 08-176 (2009) (judge using social media should exercise appropriate degree of discretion in how to use the social network and stay abreast of features and new developments that may impact judicial duties).
[iii] Cf. ABA Standing Comm. on Ethics & Prof. Responsibility, Formal Op. 462 (2013) (observing that judges have to assume that things posted to a social media site will not remain within the judge’s social circle).
[iv] CJC Rule 2.12(A).
[vii] CJE Adv. Op. 2016-1, supra.
[viii] An online review signed “Jane, a diner in Boston” or “Dick, a customer from Lenox” would not be problematic in that regard.
[ix] Merriam Webster Online defines “crowdsourcing” as “the practice of obtaining needed services, ideas, or content by soliciting contributions from a large group of people and especially from the online community rather than from traditional employees or suppliers.”
[xii] Informal Op. 12-01 (Utah Jud. Ethics Adv. Comm. Aug. 31, 2012); accord N.Y. Jud. Adv. Op. 08-176, supra (observing that judges “generally may socialize in person with attorneys who appear in the judge’s court”).
[xiv] CJE Adv. Op. 2011-6, supra; CJE Adv. Op. 2016-1, supra. Similarly, a judge who uses LinkedIn must disconnect with any attorney reasonably likely to appear before that judge. CJE Adv. Op. 2016-08 (Mass. Sup. Jud. Ct. Comm. Jud. Ethics Sept. 6, 2016).
[xv] CJE Adv. Op. 2016-1, supra.
Hon. Julie J. Bernard is an Associate Justice of the Massachusetts District Court. She has previously served as member and Chair of the Massachusetts Commission on Judicial Conduct. She is an Access to Justice Commissioner, and Chair of the District Court Committee on Alternative Dispute Resolution. Judge Bernard currently serves as Chair of the Flaschner Judicial Institute.
A former law professor and an expatriate from private practice in what is nowadays referred to as “Big Law,” Professor Fisher is the first Distinguished Fellow at the National Judicial College. He has served on the Standing Committee on Ethics and Professional Responsibility of the American Bar Association (A.B.A.) and is a former chair of the Professional Responsibility Committee of the A.B.A. Business Law Section, where he is also Executive Editor for Professional Ethics and Legal Opinions for Business Law Today. The author of two treatises on banking law and numerous law review articles on business law topics and legal and judicial ethics, Professor Fisher lectures frequently on ethics topics. His work in Judicial Ethics includes innovative and tailored in-person and virtual ethics trainings for judges at all levels, both across the United States and around the world, including service on the U.N.’s Global Judicial Integrity Network. Between 2002 and 2004, Professor Fisher served as the Official Reporter for the Boston Bar Association Task Force on Corporate Governance.