Judicial Social Media—Frequently Asked Questions

Many judges are using internet-based social networking sites such as Facebook, LinkedIn, Twitter, and Instagram. However, the Michigan Code of Judicial Conduct does not provide very much needed guidance as to how a sitting judge may use social media platforms to comply with the Michigan Code of Judicial Conduct.

Social media are websites and applications that enable users to create and share content or to participate in social networking.1 For example, Facebook is an internet based social networking site where acquaintances and other users with similar interests and backgrounds can communicate with each other. All users must register before using the site, after which they may create a personal profile, add other users as friends, and exchange messages.2 LinkedIn is a professional networking platform whose mission is to connect the world’s professionals to make them more productive and successful.3 Twitter users “follow” other users, meaning they select others whose “tweets” will appear in their Twitter feeds.4 Instagram is a photo and video sharing network.5

A connection6 on a social networking site may or may not be a friend or close acquaintance in the traditional sense of those terms. Any member of the public that has an account on the respective social media platform and depending on the user’s privacy settings may find the user and request to become a connection. The judicial officer must then determine if he or she will accept the connection also depending on the connection settings of the platform.

The American Bar Association Formal Opinion 462 analyzes a judge’s participation in electronic social networking. ABA Op 462 examines to what extent a judge’s participation in electronic social media raises concerns under the Model Code of Judicial Conduct. However, the Michigan Code of Judicial Conduct does not provide much needed guidance for sitting judges and how they take part in electronic social networking sites while also following the Code. As a result of the growth and use of electronic social networking sites, this committee has received numerous ethical questions from judges regarding their use and/or participation with electronic social media. This opinion will answer some of the questions and provide some guidance to judges who participate and use internet-based social networking sites.

Please note that even though questions received requested advice on current social media platforms citing specific sources, the answers provided pertain to all social media platforms that are currently in use and may become available for use in the future. Paramount to note, judges in the State of Michigan are bound to observe the Michigan Code of Judicial Conduct when engaging in all activities in and out of their course of duties.

Frequently Asked Questions:


Is it permissible for a judge to be a Facebook “friend,” a Twitter “follower,” or a “connection” on LinkedIn, with an attorney, if that attorney is appearing before that judge on a pending case?

Qualified “Yes.” However, judges should use extreme caution when using “social networking sites because they are fraught with peril for judges.”7 And judges who choose to participate in online social networks should be very cautious.8

Ethics opinion JI-44 states “[a] judge’s ‘personal acquaintance’ with an advocate […], without more information indicating the nature of the acquaintance which gives rise to a presumption of bias, is insufficient grounds for a judge’s automatic recusal.” An analysis of the nature of the acquaintance and the appearance of impropriety must be made.

A judge should participate in establishing, maintaining, enforcing, and should personally observe high standards of conduct so that the integrity and independence of the judiciary may be preserved. MCJC1. A judge must avoid all impropriety and appearance of impropriety. A judge must accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen. A judge should not allow family, social, or other relationships to influence judicial conduct or judgement. MCJC2. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding. A judge should abstain from public comment about a pending or impending proceeding in any court. A judge should raise the issue of disqualification whenever the judge has cause to believe that grounds for disqualification may exist under MCR 2.003(B). MCJC3. A judge should regulate extrajudicial activities to minimize the risk of conflict with judicial duties. MCJC4.

The mere fact that an attorney who is appearing before a judge on a pending case who also happens to be a “connection” to that judge on a social networking site is not automatic grounds for disqualification. MCJC3. Being a “connection” to a judge before whom an attorney has a pending case does not automatically create the appearance that the social networking connection the judge and attorney share puts the attorney in a special position to influence the judge’s conduct or judgment. MCJC2. Attorneys and judges interact in public and private settings repeatedly.9 Some of those events may appear to create opportunities for attorneys to attempt to influence judges; however, those public and private interactions between judges and attorneys do not give those attorneys any special position to influence the judge’s conduct or judgment. These electronic social networking sites are simply another type of public setting. Hence, being a “connection” on an electronic social networking site does not in itself put that attorney in a special position that would influence judicial conduct or judgment. However, being a “connection” to a judge before whom an attorney has a pending case is a factor to consider by the judge when deciding whether to recuse. MCJC3. Further, in deciding whether to recuse, a judge should consider the frequency of the interaction (i.e., comments, shares, etc.) with the attorney on social media. In addition, judges should not expect that their use of social media should be the same as members of the general public. A judge should participate in establishing, maintaining, enforcing, and should personally observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. MCJC1. Judges must accept restrictions on their conduct that might be viewed as burdensome by the ordinary citizen. MCJC2.

 

Is it permissible for a judge to be a Facebook “friend,” a Twitter “follower,” a LinkedIn “connection,” or a similar social media outlet with a party who is appearing before that judge in a pending case?

Qualified “Yes.” A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. MCJC2. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding. A judge should abstain from public comment about a pending proceeding in any court. A judge should raise the issue of disqualification whenever the judge has cause to believe that grounds for disqualification may exist under MCR 2.003(B); Ethics Opinion J-006 provides a thorough evaluation of MR 2.003 and an analysis of impartiality and bias. MCJC3. A judge should regulate extrajudicial activities to minimize the risk of conflict with judicial duties. MCJC4.

A “connection” on a social networking site is but one factor the judge should consider along with the frequency and the substance of their communications in deciding whether to recuse. It is the nature of the interaction that should govern the analysis, not the medium in which it takes place.10 The nature of the relationship must also be evaluated. This analysis should include how the interactions and relationship would be evaluated by an objective and reasonable observer.

 

Is it permissible for a judge to engage in communications through a social media account with an attorney who will be appearing before that judge in a pending case?

Qualified “Yes.” A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding. However, a judge may allow ex parte communications for scheduling, administrative purposes, or emergencies that do not deal with substantial matters or issues on the merits provided under the following circumstances: (1) the judge reasonably believes that no party or counsel for a party will gain a procedural or tactical advantage as a result of the ex parte communication, and (2) the judge makes provision promptly to notify all other parties and counsel for parties of the substance of the ex parte communication and allows an opportunity to respond. See also JI-44. The responsibility is extended to include staff in JI-134, which states “[a] judge has a duty not to initiate or permit ex parte communications with the judge directly or through court personnel.… A judge does not perforce violate MCJC 3A(4) whenever a member of his or her court personnel has received an improper communication.”

 

If the judge is a Facebook “friend” with an attorney before the case is assigned, and the attorney’s case is later assigned to that judge’s docket, is recusal required?

Qualified “No.” A judge should raise the issue of disqualification whenever the judge has cause to believe that grounds for disqualification may exist under MCR 2.003(B). MCJC3. Being a Facebook “friend” or a connection on any social media account is but one factor the judge should consider, along with the frequency and the substance of their communications in deciding whether to recuse. See J-006 for additional information.

 

May a judge “recommend” attorneys on LinkedIn or other social media sites?

No. A judge may not recommend an attorney on social media sites. Canon 2(A) states “[p]ublic confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and the appearance of impropriety. A judge must expect to be the subject of constant public scrutiny.” Canon 2(B) states “[a]t all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary.” Further, Canon 3 states “[a] judge should perform the duties of office impartially and diligently.” Further, Canon 3(A)(7) states “[a] judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.” Ethics Opinion J-008 states “[a] judge may participate in civil and charitable activities [where]… the activities may not reflect adversely on the judge’s impartiality … [and] the activities may not give the appearance of impropriety.” This also seems to be in line with the use of social media where the judge’s social media activities may bring about the appearance of impropriety and/or impartiality. A judge should regulate extrajudicial activities to minimize the risk of conflict with judicial duties. MCJC4. Therefore, judges may not recommend lawyers because such a recommendation may create the appearance of judicial partiality. It should be noted that once a judge takes the bench, the judge should remove all previous social media recommendation(s).

 

May a judge support a business on social media?

No. Canon 2(C) provides that a judge may not use the prestige of office to advance a business interest. Ethics Opinion JI-121 provides “[j]udges are not permitted participate in civic activities that reflect adversely on the judge's impartiality or that in any manner inhibit performance of judicial duties. Judges cannot engage in proceedings that are likely to come before the judge when sitting as a judicial officer.”

 

May a judge support a judicial candidate on social media?

Yes. However, the judge may not “publicly endorse a candidate for nonjudicial office.” Canon 7(A)(1)(b). However, this does not include private donations. JI-145 states “a sitting judge may make private monetary donation to a nonjudicial candidate’s campaign … the contribution would not amount to a ‘public endorsement’ of the candidate.”

 

May a judge support a charitable organization on social media?

Qualified “Yes.” Judges may support charitable organizations on social media as long as the organization will not likely be engaged in proceedings before the judge, the judge does not publish donations that they make to the organization, does not appear to be a judge’s personal solicitation for funds, does not coerce participation, and does not compromise the integrity of the court. See JI-148.


1. Cambridge Dictionary.

5. Wikipedia.

6. The term “connection” will be used throughout as the general term to describe “friend,” “follower,” or any other term used to describe a social media connection.

7. Maryland Judicial Ethics Committee, Number 2012-07; A judge has been publicly reprimanded for social networking misconduct.  Public reprimand of Terry, North Carolina Judicial Standards Comm’n, Inquiry No. 08-234, April 1, 2009; in addition, a Georgia judge resigned after questions were raised about his Facebook contact with a defendant’ see Debra Cassens Weiss, ABA Journal.com., Jan. 7, 2010. Please also see Kentucky Judicial Ethics Opinion JE-119: Judge’s Membership on Internet-Based Social Networking Sites.

8. “Although the committee has concluded it is permissible for a judge to be a member of an online social networking site and that under some limited circumstances it is permissible to interact with attorneys who may appear before the judge on an online social networking site, it is impermissible for judges to interact with attorneys who have cases pending before the judge, and judges who choose to participate in online social networks should be very cautious.”  California Judges Association, Judicial Ethics Committee, Opinion 66.

9. Events include State Bar activities and committees, local bar association committees and events, and local community events.


Last updated: September 2020

These FAQs are neither legal advice nor an ethics opinion, and are not a substitute for your obligation to review and adhere to the requirements of the Michigan Code of Judicial Conduct (MCJC), ethics opinions, statutes, court rules, and/or case law.