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    With the advent of electronic social media “ESM”, Judges are no stranger to communications through social media sites such as Facebook. Judges who utilize social media networking sites are bound by the American Bar Association (“ABA”) Model Code of Judges (the “Code”). The Code states that judges should avoid any contact that could jeopardize, or appear to jeopardize, the judge’s impartiality or independent decision making. To address this issue, the ABA Standing Committee on Ethics and Professional Responsibility released a Formal Opinion (the “Opinion”) on February 21, 2013 regarding social media. The Opinion acknowledges the many benefits a judge could obtain through the use of ESM, such as public outreach. The Opinion also states that a judge’s use of ESM does not automatically “compromise” the judge’s duties under the Model Code of Ethics. However, there are certain factors that a judge must consider when using ESM.

    According to the Opinion, judges cannot publicly present their political endorsements for, or oppositions to, political candidates. Judges should be aware that even a click of the “like” button on these types of campaigns could result in a violation of the rules. In addition, Judges should not friend request or accept friend requests from groups or persons that could be perceived as influential on the judge. Nor should judges engage in ESM communications that could be perceived as ex parte communications or case investigations. Also, a judge who has friends that are lawyers or parties in pending matters should determine whether or not such relationships should be disclosed and whether recusal is warranted. The opinion states that in deciding disclosure or recusal due to ESM contacts, “context is significant” due to ESM’s general form as “open and casual communication.” Therefore, disclosure would be necessary if the judge knows that a certain ESM relationship would be perceived as the type of social relationship necessary for disclosure or recusal.  Finally, judges should be cognizant of the manner in which their ESM profile is maintained because any images or information from the profile could be extracted and provided to others. Due to this possibility, judges should be mindful to not have anything on their profiles that could jeopardize their integrity to the public or their independent rule making.

    If you or your company has any questions or concerns regarding the discovery of social media content, or any other e-discovery related questions, please e-mail Justin F. Capuano at jcapuano@cullenanddykman.com or call him at (516) 357-3708.

    A special thanks to Melissa Cefalu a law clerk at Cullen and Dykman LLP, for help with this post.