As reported by Larry Bodine on Law Marketing Portal, in a very thorough analysis of a judge's use of social media, the Supreme Court of Ohio's disciplinary board has issued an advisory opinion outlining some of the ethical implications involved.
- To comply with Jud. Cond. Rule 1.2., a judge must maintain dignity in every comment, photograph, and other information shared on the social networking site.
- To comply with Jud. Cond. Rule 2.4(C), a judge must not foster social networking interactions with individuals or organizations if such communications erode confidence in the independence of judicial decision making.
- To comply with Jud. Cond. Rule 2.9 (A), a judge should not make comments on a social networking site about any matters pending before the judge – not to a party, not to a counsel for a party, not to anyone.
- To comply with Jud. Cond. Rule 2.9 (C), a judge should not view a party’s or witnesses’ pages on a social networking site and should not use social networking sites to obtain information regarding the matter before the judge.
- To comply with Jud. Cond. Rule 2.10, a judge should avoid making any comments on a social networking site about a pending or impending matter in any court.
- To comply with Jud. Cond. Rule 2.11 (A)(1), a judge should disqualify himself or herself from a proceeding when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer or party. There is no bright-line rule: not all social relationships, online or otherwise, require a judge disqualification.
- To comply with Jud. Cond. Rule 3.10, a judge may not give legal advice to others on a social networking site.
To me, this is a opinion represents a core understanding that social media and social networking tools are just that, tools. While they provide a new means by which to communicate, they do not require an entirely new set of regulations dedicated specifically to social media.
I have always thought that attempts to create new regulations for the legal profession's use of social media and other online marketing techniques is analogous to creating a separate set of rules for television, radio, phone, email, etc. The truth is, that the existing ethical rules are applicable to all forms of communication including social media and other online marketing and networking sites.
The idea of creating a separate set of rules for social media, to me, reflects a lack of understanding of the nature of these new technologies. While there is no doubt that the use of social media by judges and lawyers should be subject to ethical regulations (just as every other form of communication should be), developing a unique set of new rules for each form of communication is likely to lead to confusion, unnecessary compliance difficulties, and is more likely to restrict the public's access to legal information rather than protect it from false of misleading information.