Social Media and the Code of Judicial Conduct

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.

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Social Media Collides with New Jersey’s RPCs

Facebook launched in February 2004.  Twitter launched in July 2006. Instagram launched in October 2010. But New Jersey Rule of Professional Conduct 4.2 (Communication with Persons Represented by Counsel) predates all of the above social media platforms. Adopted originally in 1984 and amended in June 1996 and again in November 2003, RPC 4.2 currently provides in relevant part as follows:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter.

On April 30, 2020, a four-person majority of the New Jersey Supreme Court’s Disciplinary Review Board (“DRB”) recommended to the Supreme Court that a New Jersey attorney receive an admonition for instructing a paralegal to “friend” an adverse, represented party on Facebook in order to gather non-public information about the individual, a plaintiff in a personal injury action. That plaintiff ultimately became aware that the attorney’s office had contacted him through Facebook without first contacting his attorney, and, claiming that the contact violated the RPCs, filed an ethics grievance against the lawyer.

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Counsel’s Social Media Posts Lead to Monetary Sanctions

28 U.S.C. § 1927 provides that “An attorney or other person admitted to conduct cases in any court of the United States or any territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, and attorneys’ fees reasonably incurred by such conduct.

Image of Polaroid CameraVery recently, in Ha v. Baumgart Café of Livingston, No. 15-5530, 2018 U.S. Dist. LEXIS 70781 (D.N.J. Apr. 28, 2018), a district court in New Jersey relied on Section 1927 to impose a $10,000 sanction against the plaintiffs’ attorney because of her social media posts. The attorney filed a motion beyond the time when she had been ordered by the court to file it and, to explain its untimeliness, she wrote a letter stating that she missed the deadline because of a family emergency that required her to leave the country. Her social media posts, however, proved that her excuse for missing the deadline was not true. After receiving a copy of the explanatory letter, opposing counsel objected to the untimely filed motion because, among other things, the attorney’s public Instagram page contained photographs of her in Miami and New York City during the time she claimed to have been out of the country. Screenshots of the Instagram pages were included with defense counsel’s objection.

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