Tag Archives: model rules

Judicial Ethics and Social Media

On February 21, 2013, the American Bar Association released a formal opinion (#462) regarding judicial ethics in the social media context.  The ABA concluded,

A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impartiality.

So what does this mean?

Electronic Social Media and the Judicial Independence, impartiality, and integrity

The ABA recognized that social networking is a part of worldwide culture and that electronic social media interactions might be beneficial to judges in order to prevent them from being thought of as isolated or out of touch.

So how should judges then behave in this electronic environment?  Given the oath and importance of promoting public confidence in the independence, integrity, and impartiality,” the judge must be sensitive to the appearance of relationships with others.

It is important to understand that relations over the internet are difficult to manage because messages may be taken out of context, misinterpreted, or relayed incorrectly.

In other words, judges must assume that comments, images, or profile information, as well as any other information, might be publicly revealed without the judge’s permission.

In addition, judges should not form relationships with persons or organizations that might be violative of Judicial Ethics because these relationships convey that the individuals or organizations are in a position to influence the judge.

Furthermore, there might be disclosure or disqualification concerns regarding judges when the sites that were “friended” or “liked” which are used by lawyers or others who may appear before the judge.  The context is important here when assessing the judge’s relationship to attorneys or others who may appear before them.

Electronic Social Media and Election Campaigns

In the ABA Model Code (which may be adopted as a whole or in part by states), a judge or judicial candidate may engage in political or campaign activity with certain enumerated exceptions.

Of great importance is that judges and judicial candidates must “be free and appear to be free from political influence and political pressure.” ABA Model Rule 4.1 [1].

Similarly of equal importance, the judge or judicial candidate is prohibited from personally soliciting or accepting campaign contributions other than through a campaign committee.  ABA Model Rule 4.1(A)(8); see also ABA Model Rule 4.4.  In the Model Rules, the method of communication is not addressed or restricted.

In addition, judges and judicial candidates are prohibited from “publicly endorsing or opposing a candidate for any public office.” ABA Model Rule 4.1(A)(3).  This means that judges or judicial candidates should be aware that by “liking” or becoming a “fan” of, or by “sharing” messages, photos, or other content, this Model Rule might be violated.

In sum, judges and judicial candidates can use social media but must be aware of the potential pitfalls that might arise. These might arise from “friending,” “liking,” “sharing,” being a “fan” of, and posting comments, photos, or other information that might be distributed.  It is also important for judges and judicial candidates to be aware that any information on the Internet might be distributed by others and made public with or without their consent.

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ABA Model Rules and Technology

The ABA Commission of Ethics has submitted proposals for amendments for the Model Rules, in order for the rules to adapt to the changing technology environment.  These changes affect confidentiality, competence, client development, lawyer mobility, and outsourcing.

These amendments will be presented at their August meeting.  To get more information about these changes, please click on the link below.

via ABA Commission on Ethics 20/20 | ABA Board of Governors / Commission on Ethics 20 20.

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Be Nice: More States Are Treating Incivility as a Possible Ethics Violation

The ABA Magazine has an interesting article regarding lack of civility and how it is being addressed by different States and organizations, such as the ABA:

Incivility among lawyers is not a new concern. But as the general tone of public discourse in the United States becomes more heated, the issue of civility—or lack thereof—within the legal profession appears to be moving to the front burner.

“Civility used to be inherent in public discourse. Where did we go wrong?” said then-ABA President Stephen N. Zack in a speech during the 2011 ABA Annual Meeting in Toronto. “As lawyers, we must honor civility,” said Zack, the administrative partner at Boies, Schiller & Flexner in Miami. “Words matter. How we treat others matters.”

Lawyers engaging in uncivil behavior run the risk of court sanctions, but in a growing number of jurisdictions, incivility also may land them in front of their state disciplinary bodies on charges of violating ethics rules.

The ABA Model Rules of Professional Conduct don’t specifically address civility. Nevertheless, a lawyer’s alleged incivility may implicate the competence provisions in Model Rule 1.1 or, more often, Rule 8.4, which contains broad provisions covering misconduct—including dishonesty, fraud, deceit or misrepresentation—and, as stated in Rule 8.4(d), conduct “that is prejudicial to the administration of justice.”

via Be Nice: More States Are Treating Incivility as a Possible Ethics Violation – Magazine – ABA Journal.

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