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Friday, March 20, 2015

State Bar: judges and lawyers may communicate on social media

Posted by on Fri, Mar 20, 2015 at 7:00 AM

Judges and lawyers in North Carolina may hobnob on social media sites such as Facebook and Twitter as long as they don't communicate about ex parte matters (private issues in pending cases), the State Bar declared in a recent ethics opinion.

In addition, lawyers may endorse or recommend judges, but they may not accept endorsements or recommendations by judges, so as not to create the appearance of judicial partiality, the Bar said. 

The Bar's opinion, which originated as an inquiry about whether lawyers and judges may endorse each other on the networking site LinkedIn, was published earlier this year. It comes at a time when many states are debating the limits of communication between judges and lawyers on social media. Some states, like Florida, Oklahoma and Massachusetts, don't allow lawyers and judges to be Facebook friends, let alone interact on networking sites. 

The UNC School of Government's criminal law blog offers a good synopsis of the Bar's opinion here.

The Bar's opinion states that "Interactions with judges using social media are evaluated in the same manner as personal interactions with a judge, such as an invitation to dinner. In certain scenarios, a lawyer may accept a judge's dinner invitation."

The opinion goes on to note that if a lawyer represents clients in proceedings before a judge, the lawyer is subject to the following duties:
—to avoid conduct prejudicial tot he administration of justice
—to not state or imply an ability to influence improperly a government agency or official
—to avoid ex parte communications with a judge regarding a legal matter or issue the judge is considering

In the UNC School of Government blog post, author Jeff Welty contends that the opinion left certain questions unanswered, considering that many Facebook posts are left open to interpretation. Regarding Llinkedin endorsements, Welty asks, "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'?"

Alice Mine, staff counsel to the Bar's Ethics Committee, says the answer is yes; endorsements are not limited to legal endorsements. "The issue is the creation of an impression that the lawyer has an ability to influence the judge improperly," she said.

As of 2012, nearly half of all judges maintained a social networking presence, according to a Conference of Court Public Information Officers report. The North Carolina Bar's opinion, however, governs lawyers, but not judges, whose ethics are monitored by the Judicial Standards Commission. In other words, the Bar's ethical mandates for lawyers are distinct for the commission's ethical mandates for judges.

[NOTE: This paragraph has been updated to correct an error.] In 2009 the State Bar commission reprimanded an Iredell County judge for posting detailed status updates like "two good parents to choose from" in a custody case over which he was presiding. One of his "friends," a lawyer in the case, posted, "I have a wise Judge."

Chris Heagarty,  the commission's executive director, is aware of the Bar's opinion, but says it would be imprudent to offer his position on specific social media actions like accepting a LinkedIn endorsement.

“The commission has not interpreted the Code of Judicial Conduct to prohibit a judge from connecting or communicating with attorneys on LinkedIn, Facebook, or through other forms of social media, but it has advised caution in ensuring that any material posted is appropriate," he said. "Whether you call a communication a 'like,' a 'post,' an 'endorsement' or a 'tweet,' each situation would have to be reviewed in context, and the judge’s comments or actions would be evaluated to make sure that they don’t constitute improper out-of-court communications with litigants or imply an unfair bias or favoritism.”
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