On June 16, 2020, a 4-3 majority of the Supreme Court of Wisconsin ruled that a judge’s decision to become friends on Facebook with a woman whose child custody case the judge was hearing created the appearance of bias. The Wisconsin court found the judge’s conduct violated the other litigant’s right to due process because “the extreme facts of this case rebut the presumption of judicial impartiality.” The court also strongly urged Wisconsin judges to “weigh the advantages and disadvantages of using electronic social media like Facebook.” In contrast, the Supreme Court of Florida (also in a 4-3 decision) held in a 2018 decision that it was all right for judges to be Facebook friends with attorneys who have cases before them. In reaching that decision, the court noted that a Facebook friendship “does not objectively signal the existence of the affection and esteem involved in a traditional ‘friendship’” and that “not every relationship characterized as a friendship provides a basis for disqualification.”

To date, there have been no New Jersey court decisions or ethics opinions written about how judges in New Jersey should use social media. However, two of the seven Canons of the New Jersey Code of Judicial Conduct, which can be found in the Appendix to Part I of the New Jersey Court Rules, seem to suggest that if judges do make use of social media, they should do so very carefully.

Canon 2 of the Code of Judicial Conduct provides that, “A judge shall avoid impropriety and the appearance of impropriety.” The Official Comment to Rule 2.1 of this Canon makes clear that Canon 2 applies “to both the professional and personal conduct of a judge.” Indeed, the Comment expressly states, “A judge must therefore accept restrictions on personal conduct that might be viewed as burdensome to the ordinary citizen and should do so freely and willingly.” Similarly, Canon 5 provides that “A judge shall so conduct the judge’s extrajudicial activities as to minimize the risk of conflict with judicial obligations.” Rule 5.1(A) to this Canon also expressly states, “Judges shall conduct their extrajudicial activities in a manner that would not cast reasonable doubt on the judge’s capacity to act impartially as a judge . . .”

According to Forbes.com, there are 3.8 billion active social media users, which represents 49% of the planet’s population, so it is not reasonable to expect judges to avoid social media. Indeed, the dissent in the Wisconsin court’s decision noted, “Judges are people too.” Judges though should be mindful about how they use social media so the public remains confident in the judiciary. The American Bar Association recognized the importance of this concern when it issued a Formal Opinion back in February 2013 to address judges’ use of electronic social media. However, the Chief Justice of the Supreme Court of New Mexico may have said it best when he devoted several pages of a 2016 opinion to the issue of social media ethics for judges: “A judge must understand the requirements of the Code of Judicial Conduct and how the Code may be implicated in the technological characteristics of social media in order to participate responsibly in social networking. Members of the judiciary must at all times remain conscious of their ethical obligations.”

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            For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.