I recently published an article in the American Bar Association’s TYL publication regarding the ethical implications of connecting with judges on social media – Hypothetically Speaking . . . What if I’m Friends with a Judge on Facebook? While TYL is geared toward lawyers in practice 10 years or less, the topic is of import to practitioners of all ages and experience levels.
Since the inception of social media over a decade ago, and the ever-increasing popularity of sites such as Facebook, LinkedIn and Twitter, states have adopted various rules on whether an attorney may maintain a social media connection or friendship with a judge. While most states permit lawyers to connect with judges, a few states (e.g., California and Florida) prohibit judges from making online connections with lawyers who may appear before the judge in court.
Recently, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 462 (2013) that requires judges to evaluate their online connections “to determine whether the judge should disclose the relationship prior to, or at the initial appearance of the person before the court.” Formal Opinion 462 explains that, “context is significant”; a connection in and of itself does not necessarily create the appearance of impropriety.
Of course, Formal Opinion 462, as well as most states’ rules, focus on the ethical obligations of the judge – not the lawyer. However, the rationale behind these rules is equally applicable. Like judges, lawyers should not be commenting on pending cases. Similarly, lawyers should not be disparaging opposing parties or counsel in online posts or comments. The rules of professionalism extend beyond traditional forums. Therefore, like most ethical conundrums, you must check your local rules and ethics opinions to know where your state stands on the issue.