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Judicial Edge
Social media do’s and don’ts

By Justice Daniel J. Crothers

By Justice Daniel J. Crothers

Judges often wonder if they may join online social networks. Jurisdictions universally say yes, but they either prohibit or urge extreme caution when posting with people who appear before the judge.

Below are some tips for social media participation.

DO…

1. Know which rules apply to you

Florida, Oklahoma, Massachusetts and Connecticut generally do not permit social media relationships between judges and those regularly appearing in the judge’s court. The American Bar Association, the Federal Judicial Conference and more than a dozen states allow those relationships but urge caution.

2. Maintain integrity and impartiality

Comments, pictures and other social networking posts that might be acceptable for members of the general public may be inappropriate for judges. This may seem like common sense, but there are many examples of judges who didn’t follow this principle.

3. Control your privacy settings

All social networking platforms have privacy settings allowing users to control the extent of posted information seen by other participants. This page shows many of Facebook’s privacy settings. Adjust the size and composition of your social media connections if you’re worried about what might be discussed. For instance, if you’re using social media to connect with family, keep your followers just to that group.

4. Control your friends

Mere “friending” (adding someone as a social media connection) between you and others usually does not convey an impression that the “friend” is in a special position to influence you. Monitor posts to make sure your “friends” are not suggesting otherwise.

5. Disqualify when necessary

When you or a social media associate say or do something that reasonably calls into question your independence, impartiality or integrity, consider disqualifying yourself from a case. Then think about whether it’s worth it to stay on social media

DON’TS…

1. Don’t build social networks that could raise eyebrows

A judge with lawyer “friends” would not want them all to be prosecutors and no defense counsel.

2. Don’t engage in ex parte communications

Forming social media relationships with those appearing before you opens the door to improper communication about a pending or impending matter. Monitor your surroundings to minimize or eliminate the risk.

3. Don’t give legal advice

Full-time judges may not give legal advice. Some part-time judges are allowed to, but they must know who their clients are, and they must safeguard information relating to representation of the client. Legal advice shared on a social media platform rarely satisfies either requirement.

4. Don’t conduct independent judicial investigations

Social media sites provide a treasure trove of information, much of which would be relevant to current trials. Judges are prohibited from conducting independent investigations into adjudicative facts, and that includes surfing the web.

5. Don’t discuss pending matters

Ethics rules prohibit you from making public statements about pending or impending matters. That includes commenting online, and it includes posting about past cases, which may be subject to appeal or other post-trial review.

Daniel J. Crothers has served the North Dakota Supreme Court as a justice since 2005. He is an alumnus of the NJC and joined its faculty in 2006.

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