The American Bar Association has just released a timely ethics opinion regarding the issues that may arise when a judge engages in social media, such as “friending someone” on Facebook. In Formal Opinion 462, dated February 21, 2013, the ABA opines that 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”.
However amorphous that standard may be, the opinion continues by allowing for use by members of the bench of electronic social media, which the opinion refers to as ESM. For judges and lawyers who might interact on ESM, this recent ABA ethics opinion is worthwhile reading.
The opinion takes the position that the mere existence, without more, of an ESM connection is not problematic, though frequent interaction may require closer scrutiny. The ABA also explains that:
A judge should disclose on the record information the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification even if the judge believes there is no basis for the disqualification.16 For example, a judge may decide to disclose that the judge and a party, a party’s lawyer or a witness have an ESM connection, but that the judge believes the connection has not resulted in a relationship requiring disqualification. However, nothing requires a judge to search all of the judge’s ESM connections if a judge does not have specific knowledge of an ESM connection that rises to the level of an actual or perceived problematic relationship with any individual.