The North Carolina State Bar recently adopted 2014 FEO 8, an ethics opinion concerning lawyers’ and judges’ use of social media. The opinion answers some questions, but raises others.
Background. In recent years, a number of states have addressed whether and to what extent lawyers and judges may interact on social media. Florida doesn’t allow the two to be “friends” online at all, while other states generally do allow lawyers and judges to connect online, subject to various limitations. My colleague Michael Crowell wrote a paper summarizing the relevant rulings.
North Carolina inquiry. The inquiry that resulted in 2014 FEO 8 asked, in essence, (1) whether a lawyer and a judge may “connect” on LinkedIn; (2) whether a lawyer may endorse or recommend a judge on the site; and (3) whether a judge may endorse or recommend a lawyer on the site (technically, whether a lawyer may accept an endorsement or a recommendation from a judge on the site).
North Carolina ruling. In a nutshell, the bar ruled that lawyers and judges may connect; that lawyers may endorse or recommend judges; and that judges may not endorse or recommend lawyers, because such an endorsement or recommendation may “create the appearance of judicial partiality.” The opinion also states that lawyers and judges should be careful not to use social media to engage in ex parte communications, echoing a point made in a 2009 Judicial Standards Commission reprimand concerning a judge who communicated with a lawyer via Facebook about a pending case. Finally, the opinion notes that the principles it enunciates are not limited to LinkedIn, but apply to other social networks as well.
Implications. Based on the opinion, it appears to be clear that lawyers and judges may be Facebook friends and may follow one another on Twitter. But it seems to me that the opinion leaves important questions unresolved. For example, does the opinion apply when a judge endorses or recommends an attorney for a skill that is not directly related to the law, like “public speaking” or “community outreach”?
More importantly, LinkedIn is unique, as far as I know, in allowing users officially to endorse or recommend other users for specific skills or tasks. The opinion is likely to be much more difficult to apply with social media sites such as Facebook, where most interactions are in the forms of posts and comments, which are free-form, often short, and frequently susceptible to multiple interpretations. Consider a few possible fact patterns:
- A defense lawyer finishes a trial and gets a not guilty verdict. The lawyer posts the result on her Facebook page, and the presiding judge, who is a Facebook friend, comments, “You were well-prepared today and gave a good closing argument.”
- A prosecutor posts that he is emotionally exhausted by his daily contact with crime victims and is considering changing jobs. A judge who is a Facebook friend comments, “You make a difference!”
- A defense lawyer publishes an article about jury selection in a legal magazine and posts about it when the magazine comes out. A judge who is a Facebook friend comments, “Saw the article. Thorough treatment of a challenging topic.”
Which, if any, of these comments constitutes an endorsement or recommendation such that the lawyer is obliged to remove it from his or her Facebook page? How different are some of the above comments from the sorts of things that judges say to lawyers every day in court? Lawyers may be well-advised to err on the side of caution, or to contact the State Bar’s ethics staff for guidance.
Those interested in further reading or in a judge’s perspective may want to review Justice Barbara Jackson’s article about judges’ use of social media in the Judges’ Journal.
As always, I’m interested in your comments. How are lawyers and judges interacting online? What types of interactions are worrisome? Does the ethics opinion provide helpful guidance?