ABA opinion

American Bar Association Formal Opinion 462 issued on Feb. 21:

“A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impropriety.”

Circuit Judge Roger Young loves Facebook. It led him to his wife.

Survey

According to a 2012 American Bar Association technology survey:

96% of attorneys surveyed use social media on a personal basis.

47% reported their firms have policies in place regulating social media use.

Source: ABA

The pair had dated in law school, then went their separate ways. He married someone else and divorced. Then, about 15 months ago, Young reconnected with his law school love.

“We have not had any contact in 30 years. It was kind of like, ‘This could be interesting, wonder how she’s doing,’ ” he said.

The two met and had a “wonderful reunion date” and were later married. “I’m a big fan of Facebook,” Young said.

But last year Young deactivated his account because he said there still is no clear rule for judges. The American Bar Association recently published an opinion about the matter, and South Carolina issued one in 2009, both stating that it’s OK for judges to use the sites as long as they follow certain parameters.

For Young, an opinion is not enough for him to reactivate his account, he said. Until the S.C. Supreme Court hears a case and makes an official ruling, goodbye Facebook.

Tweet or not to tweet?

More than 1 billion people use Facebook. Inevitably, lawyers and judges are among those updating their statuses, “friending” and “defriending,” or “liking” pages.

Whether their thoughts and relationships should be highlighted or exposed on social media sites is the subject of debate nationally and within South Carolina.

James Gosnell, Charleston County associate chief magistrate judge, uses Facebook. Mostly, he writes about his camping trips, he said. In the age of online sharing, he doesn’t understand why some people post what they had for lunch. “My friends tell me I don’t ever post anything,” he said.

Recently, Gosnell decided he’s getting rid of his Facebook page.

“It’s not what I put out there that I’m afraid of, but it’s what others will do to misconstrue something you may have posted,” Gosnell said.

Even an innocent photo or posting can be misconstrued, misinterpreted or misrepresented by someone with an agenda, he said. That’s why Facebook soon will lose another judicial member.

That doesn’t mean Gosnell is against judges being a part of the social media world. He’s just very careful about how he lives in that world, he said.

“Being a judge doesn’t mean you can’t have a life outside your courtroom, office or your chambers,” Gosnell said. “What I think some judges don’t understand is that if you send it — words, pictures, illustrations — it is being memorialized forever.”

Ninth Circuit Solicitor Scarlett Wilson, who herself uses Facebook, said it’s fair for judges to use those sites. “They do have certain obligations regarding their behavior as judges, but social media is like rock ’n’ roll. It’s here to stay.”

Rules of the bench

The ABA opinion published Feb. 21 said judges can use social media, but under certain rules already outlined in their code of conduct — avoid any conduct that would undermine independence, integrity or impartiality, or create an appearance of impropriety.

South Carolina published an opinion on the matter in 2009 and was one of only three states to do so at the time. The state’s Advisory Committee on Standards of Judicial Conduct outlined similar guidelines to those published by ABA last month.

It said judges can be members of social networking sites as long as they don’t discuss anything related to the judge’s position as a magistrate.

“A judge should not become isolated from the community in which the judge lives,” stated the opinion.

Last October, S.C. Supreme Court Chief Justice Jean Toal and Justice Costa Pleicones addressed the American Bar Association’s Young Lawyers in Charleston.

“We can’t stay back in the dark ages for ways to communicate, but we have to use some caution,” Toal said. She said she is wary of judges’ use of those sites. Toal did not respond to a request for comment on the recent ABA opinion.

That wariness is the reason Young has opted out of Facebook, he said. It’s only a matter of time before a “disgruntled litigant” who gets an unfavorable ruling from a judge files a complaint with the state Supreme Court, citing the judge’s bias because he is “friends” on Facebook with the attorney on the opposing side. Young doesn’t want to be that judge, he said.

For now, his friends must communicate with him the old-fashioned way, like it or not.

Reach Natalie Caula at 937-5594 or Twitter.com/ncaula.