The Maryland Judicial Ethics Committee gave sparse guidance for Maryland state judges who are interested in expanding their electronic footprint through social media like Facebook, Twitter and Google+. The June 12, 2012 published opinion first warned judges to “proceed cautiously.”
The opinion examined what other states do, noting that in some states judges are prohibited from friending lawyers who do or might appear before them in court.
Realistically, the important concern for a judge is whether the existence of an online friendship could create the appearance of impropriety. Ordinarily, that would be a simple matter. However, Maryland judges have one special circumstance that should be considered: judicial elections.
Judges are initially appointed by the governor to fulfill vacancies. After that appointment, though, judges in Maryland are forced to run for office—that is, they must be re-elected to the position. I think most lawyers in Maryland think this is a terrible idea. Here’s why:
- Judges have better things to do than run for office
- Judges have historically been insulated from politics, which allows them the freedom to make rulings with political ramifications. Judicial elections are a major step in the wrong direction.
- If you’re looking to avoid the appearance of impropriety, judicial elections is the wrong answer. In order to succeed, judges must schmooze with voters, raise money from people, organizations and corporations, and then somehow not be influenced (overtly or sub-consciously) when those supporters have cases in front of the judge. That’s ridiculous.
The reality is that Facebook, Twitter and other forms of electronic social media are important political tools. We witnessed that with Obama’s election. Several legislators in Maryland use the tool to connect with their supporters and potential supporters. Judges, who are forced to occasionally play politics, should be allowed to friend just about everyone in the Twitterverse in order to raise money and stay in the game. But, that doesn’t exactly smack of impropriety. Perhaps one way around this is to use a separate Facebook page/Twitter handle for the judge’s election committee, but that’s really just a shell game.
Applying the new opinion to prospective judicial conduct, I think the real analysis is going to be what judges are doing with social networking, and the relationship of that online presence to the courtroom. Judges should pay particular attention to their friend lists—if one of those friends is a lawyer or party or witness before the judge, he or she needs to decide whether recusal is necessary and, if not, the issue should be at least raised to the lawyers who can then decide whether a motion for recusal is appropriate. Just like law firms need to perform conflicts checks, the judges should have a way to cross-reference their friends with the people walking into their courtrooms.
It’s likely that most judges will refrain from any social media comments about pending cases. Even though some comments are likely to be insignificant, the risk of exposing too much or revealing any biases is simply too great. But you can expect that some judges will cross the line the further we proceed into this brave new world.