April 30, 2020
Digest: A part-time lawyer judge must not publish his/her judicial decisions on his/her personal social media website, where doing so may appear to (1) invite discussion, comment, or other input from members of the public or (2) indirectly promote his/her law practice.
Rules: 22 NYCRR 100.0(U)-(V); 100.2; 100.2(A)-(C); 100.3(B)(1); 100.3(B)(6); 100.3(B)(8); Opinions 14-158; 12-146; 12-35; 10-172; 09-59/09-86; 08-176; 98-125; 90-67.
A part-time lawyer judge asks if he/she may post his/her published judicial decisions on his/her personal social media website by listing the “case name, citation and link to the Official Reporter website.”1 Nor may he/she comment on the decision either on social media or elsewhere.
A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must “not lend the prestige of judicial office to advance the private interests of the judge or others” (22 NYCRR 100.2[C]). A judge also must “not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment” (22 NYCRR 100.2[B]) and must “not be swayed by partisan interests, public clamor or fear of criticism” (22 NYCRR 100.3[B]). Unless an exception applies, a judge must not “initiate, permit or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding” (22 NYCRR 100.3[B]) nor “make any public comment about a pending or impending proceeding in any court within the United States or its territories” (22 NYCRR 100.3[B]).2
We’ve said a judge may submit his/her judicial decision to a newspaper for publication, subject to any applicable statutory provisions concerning sealed records, after the judge files the decision with the clerk of the court and without commenting about the decision in any way (see Opinions 12-146; 98-125). The initial issue is thus whether there is a material, relevant difference in a judge posting his/her own judicial decisions on his/her personal social media website, rather than providing them to a third-party news entity that may publish them in print or online.
While there is nothing inherently inappropriate about a judge maintaining a personal social media website (see Opinion 08-176), specific features of these sites can raise additional concerns not present in traditional news entities. In particular, a judge’s personal social media website is likely to be seen as inviting or encouraging interaction with the judge. Such interaction is unlikely to be problematic when a judge posts about his/her hobbies, social events or milestones with friends or family, and a wide variety of other such ordinary, non-political topics unrelated to his/her judicial office.
However, in our view, a judge who posts his/her own judicial decisions on social media may be seen as implicitly inviting discussion, comment, or other input on it from friends, family, or other members of the public. Thus, even if the judge is careful not to comment on the decision in any way, the public is likely to perceive that they are encouraged to reach out to the judge personally to discuss the decision.3 Thus, if the matter is still “pending or impending” (for example, if the time for appeals has not yet been exhausted), there is a risk of being seen to encourage ex parte communications about the case (22 NYCRR 100.3[B]). Even if the matter is fully concluded and no further proceedings are reasonably foreseeable, however, the judge’s choice to post his/her own judicial decisions on his/her personal social media website could create an impression that the judge is sensitive to favorable or unfavorable public reception of his/her decisions and thus, inadvertently, create the impression the judge may be “swayed by ... public clamor or fear of criticism” (22 NYCRR 100.3[B]).
Assuming the judge’s personal social media website can be viewed or accessed by current or prospective clients, we must also address a second issue. A part-time lawyer judge must “avoid the appearance that the judge’s judicial position is being used to promote either the law firm or the judge’s own legal services” (Opinion 09-59/09-86). Thus, we have said that, while a judge may briefly mention his/her judicial position in his/her online law firm biography,4 he/she “should not describe his/her judicial duties or significant cases over which he/she has presided” (id.).
On these facts, if current or prospective clients may view the judge’s personal social media website, we believe posting his/her judicial decisions on the site may create an impression the judge is indirectly using his/her judicial status to promote his/her law practice. Thus, it is also impermissible for this reason as well.
Finally, our conclusion here is further buttressed by Opinion 10-172, where we advised he/she may not maintain “a personal judicial website.”5 Among other concerns, we noted “a judge who creates his/her own personal judicial website may appear to be using the prestige of judicial office to advance his/her own private interests, which is prohibited by the Rules” (Opinion 10-172, citing 22 NYCRR 100.2[C]). In general, the more frequently and prominently a judge references his/her judicial position on his/her personal social media website, the greater the risk he/she will be seen as using that judicial position to advance his/her private interests (cf. Opinion 08-176 [urging judges to “employ an appropriate level of prudence, discretion and decorum” online]).6
For clarity, we note the present opinion addresses only a judge’s personal social media website. It does not address whether a judge’s campaign committee’s social media website may, during the applicable window period, post links to the judge’s published decisions as part of his/her judicial campaign (cf. Opinion 90-67 [a judge in his/her window period may “may refer to the judge’s own previous decisions, where an appeal is not pending, but the discussion should not go beyond the judge’s published decisions”]).
1 Presumably, the judge would link to the full-text opinion as posted on the Law Reporting Bureau’s website (www.nycourts.gov/reporter).
2 A “pending or impending proceeding” encompasses one that “has begun but not yet reached its final disposition” (22 NYCRR 100.0[U]) or “is reasonably foreseeable but has not yet been commenced” (22 NYCRR 100.0[V]).
3By contrast, if a newspaper publishes the judge’s decision online, anyone who chooses to comment on the decision knows they are commenting on the newspaper’s website; the judge has not created any appearance that he/she is inviting communications on the decision.
4 A judge may include a judicial designation only within the body of his/her online biography; it should not be displayed “in the heading” or “in the firm’s list of attorneys” (Opinion 14-158).
5 Opinion 12-35 reaffirms and clarifies Opinion 10-172 on grounds not relevant here.
6 In our view, a judge may ethically post his/her published opinions, without comment, on an official web page for his/her court, whether hosted on the Unified Court System’s website or on the municipality’s website.