Why Can’t We Be “Friends”?

You’ve been assigned your first major oral argument in front of a recently appointed judge, and you are stoked! You have carefully prepared by re-reading all of the briefs, double-checking case citations, and researching the judge on the internet. Lucky stars! You got the judge to accept your “friend” request on Facebook. Excited and optimistic, you arrive early and, in a pause in the proceedings, mention that you share the judge’s interest in kayaking, a fact which you gleaned from her Facebook page. For some reason, the expression on the judge’s face does not indicate that she is thrilled you are “friends” with her. Hmmm. What seems to be the problem?

Headed out to your second hearing of the day in a neighboring county, you appear in front of a judge who lives in your neighborhood. That judge has quite a presence on Twitter as well as the local social media site, NextDoor. The judge “tweets” frequently and “likes” assorted posts, comments on neighborhood issues from complaints about dumping to homelessness and recommends local businesses. You “follow” this judge’s Twitter feed and know his preferences. Another ideal opportunity to win points with a judge! However, when you arrive, you see several counsel conspiratorially huddling outside the courtroom. When asked for the scoop, an attorney informs you that today’s paper had an article about a public admonishment of the judge by the Commission on Judicial Performance because of his inappropriate social media behavior. Hmmm. Do judges have to think about what they post? Are there ethical implications if a judge writes an online review? And, how, exactly, should an attorney interact with a judge on social media, if at all?

Social media sites such as Facebook, LinkedIn, Twitter and Instagram have much of the world’s population on them. Why not judges? These platforms have staggering user numbers (Facebook — close to 3 billion monthly active users[1]; LinkedIn — 800 million total users[2]; Twitter – 211 million daily active users[3]; and Instagram — over 1 billion[4]), so there are plenty of daily communications shared amongst billions of people, including within networks of individuals, groups and organizations with shared relationships, interests or activities.

Perhaps one would reason, if Facebook allows users to “friend” other users, to add photos, post status updates, share connections with relatives and friends, express interests in books, articles, movies, TV shows and music, then why should judges’ use of Facebook pose complexities? And why should an attorney care about judges’ presence on social media? And, finally, should an attorney assume that a judge checks social media pages of litigants – or follows social media commentary on a high profile case?

The answer is complicated and it resides within the ethical constraints which undergird all aspects of the professional tasks the judge performs as a dispenser of justice. When the internet was new, judges were pretty much on their own trying to apply the Canons of Judicial Ethics to their social media presence.

In 2018, 2020 and 2021 the California Supreme Court updated the Code of Judicial Ethics to add explicit advice on internet conduct and social media. Judges were reminded about the accessibility and durability of electronic communications, and that the same ethical canons that regulate judicial activity traditionally also apply virtually. Because an independent, impartial, and honorable judiciary is indispensable to justice in our society, a judge’s presence on the internet must be carefully conveyed. A judge is expected to participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary is preserved. See Canon 1 of the California Code of Judicial Ethics. An Advisory Committee comment to Canon 1 states, “violations of this code diminish public confidence in the judiciary and thereby do injury to the system of government under law.” Further in the canons, it is noted that all the canons apply to both the professional and personal conduct of a judge[5]. Judges understand that they should maintain dignity and exercise caution in every comment, “tweet”, “like”, photograph, and any other information shared on a social networking site. Judges are barred from making any statements on social media (or otherwise) which would jeopardize their impartiality, denigrate the judiciary, or constitute forbidden political commentary[6].

Therefore, judges are permitted to use social media to make legal declarations in the same way they do in traditional venues, as long as they carefully consider what they want to post and monitor responses to assure continued compliance.

It all boils down to maintaining respect for our system of justice. If a judge’s involvement on social media sites raises suspicions of bias in the minds of those who come before him or her, it can cause harm which brings disrespect to the entire judicial system.

If you are concerned a judge might review social media on high profile cases, this is highly unlikely. Unless otherwise authorized by law, a fact finder, including a judge, has no authority to independently investigate the facts in a case.[7], [8] That doesn’t mean a judge may never use the internet to conduct research. The judge is permitted to educate themselves on general topics they may encounter in their assignments, but, without permission of counsel, seeking specific answers to facts presented in the matter before them is off-limits. So, it is not likely that the judge presiding over your case will be reading an internet troll’s blog or tweets concerning the case.

Now, understanding the constraints on a judge’s social media presence, what should a well-meaning attorney do? After all, we live in an age where people the world over can readily share information so long as they have an internet connection. This explosion of connectivity has provided a wonderful marketplace of ideas and mutuality of interests. Judges, aware that a tweet, heart or thumbs up logo on a post could violate the Code of Judicial Ethics, may be extraordinarily circumspect in their social media presence and likely to reject your “friend” request. As an attorney, consider whether any contact (at all) would be considered ex parte. Perhaps it is best to just thoroughly prepare for a court appearance by using the internet to do your research on the law and not seek a “virtual connection” to the judge.

[1] https://investor.fb.com/investor-news/press-release-details/2021/Facebook-Reports-Third-Quarter-2021-Results/default.aspx.
[2]https://news.linkedin.com/about-us#Statistics.
[3]https://s22.q4cdn.com/826641620/files/doc_financials/2021/q3/Final-Selected-Metrics-and-Financials.pdf.
[4]https://about.instagram.com/about-us
[5]Cal. Code Jud. Ethics, canon 2, Advisory Committee Commentary.
[6]Id.
[7]Cal. Code Jud. Ethics, canon 3B(2).
[8]Rothman, Judicial Conduct Handbook (4th ed. 2017) §2.20.