Note – Why Can’t We Be “Friends”? A Call for a Less Stringent Policy for Judges Using Online Social Networking

Judges are increasingly using social networking websites like Facebook, Twitter, LinkedIn, MySpace, and Google+, and, naturally, the question arises: What are the ethical limits for judges doing so? A number of judicial ethics committees and others knowledgeable about judicial ethics have analyzed this question. Not all, however, were familiar with the nuances of online social networking. The California Judges Association falls into both of these categories. In November 2010, it released an advisory opinion, Opinion 66, describing its views on judges using social networking sites. This Note details the views expressed by Opinion 66 and by opinions from Florida, Indiana, Kentucky, New York, Ohio, Oklahoma, and Wisconsin. Opinion 66 stated that a judge may not include an attorney in her online social network if the attorney is appearing before the judge—a view shared by Florida and Oklahoma but rejected by Indiana, Kentucky, New York, Ohio, and Wisconsin. This view typifies the failure of Opinion 66 to appreciate that the current ethical rules allow a judge to be online “friends” with an attorney appearing before her. This failure stemmed in part from a lack of recognition that an online connection is not indicative of a close connection. Other analytical flaws were the inexplicably higher standard for online contact and the lack of appreciation of how social networking sites work. Opinion 66—and all of the other opinions on this subject—also failed to appreciate the benefits of allowing judges to use online social networking, including transparency, outreach, and even enforcing the ethical rules. This Note argues that the California Judges Association can, and should, release a new opinion further analyzing the use of social networking sites by judges