Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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Judges and social media use: Drawing the line in New York

In 2020, it’s safe to say that I no longer need to convince lawyers that social media is here to stay, since nearly everyone – including lawyers – regularly interacts on least social media site. And by “lawyers” I’m referring to pretty much anyone with a law degree, including judges.

That being said, judges are unique. When they accept the position of a judgeship, they agree to walk a fine line in both their public and private lives in order to maintain the appearance of impropriety. As a result, given the very public nature of most social media interactions and the ease of accessing the same, this particular medium of communication can sometimes prove to be problematic for judges.

Case in point: a part-time judge who hoped to personally publish online decisions handed down by the judge. Specifically, in New York Judicial Ethics Opinion 20-58, which was handed down earlier this month, the enquiring judge sought input on whether it was permissible to “post his/her published judicial decisions on his/her personal social media website by listing the ‘case name, citation and link to the Official Reporter website’…(and also) comment on the decision either on social media or elsewhere.”

In reaching its decision, the Advisory Committee on Judicial Ethics noted that it was limiting its opinion to items posted to judges’ personal social media websites and was not addressing the issue of whether judges’ campaign committees can post links to the judges’ published decisions as part of a judicial campaign.

The Committee explained that as it related to the question raised by the enquiring judge, there were two different issues under consideration: 1) whether there was a material, relevant difference between judges posting judicial decisions on personal social media websites as opposed to providing them to a third-party news entity for publication in print or online, and 2) whether part-time judges posting their judicial decisions on a personal social media website might create an impression that they were indirectly using their judicial status to promote their law practices.

In regard to the first issue, the Committee explained that although the publication of decisions online is not inherently inappropriate, the primary concern was that doing so could, in some situations, be seen as inviting or encouraging interaction with the judge. The Committee opined that “there is a material, relevant difference in a judge posting his/her own judicial decisions on his/her personal social media website, rather than providing them to a third-party news entity that may publish them in print or online.”

According to the Committee, in many cases, online postings by judges are rarely problematic if judges post solely about “hobbies, social events or milestones with friends or family, and a wide variety of other such ordinary, non-political topics unrelated to his/her judicial office.” But the Committee concluded that when judges post their judicial decisions online, it runs the risk that doing so “may be seen as implicitly inviting discussion, comment, or other input on it from friends, family, or other members of the public.” As such judges should refrain from doing so.

Next, the Committee turned to the second issue, and determined that if part-time judge  s who also practice law were to post their judicial decisions to personal social media sites, it could impermissibly create an impression the judge is indirectly using his/her judicial status to promote his/her law practice.”

Thus, the Committee concluded that for multiple reasons judges should refrain from posting their judicial decisions on their personal social media websites.

In an effort to provide additional guidance to judges regarding permissible online interactions and where to draw to the line, the Committee explained that “the more frequently and prominently a judge references his/her judicial position on his/her personal social media website, the greater the risk he/she will be seen as using that judicial position to advance his/her private interests.”

In other words, New York judges are not banned from interacting online. Instead, they should carefully consider the ways in which they’d like to interact, and then ensure that they walk that fine line between permissible interactions and those that either advance their private interests or invite impermissible online discussions related to their position as a judge.

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.