On February 21st, the American Bar Association released Formal Opinion 462, Judge's Use of Electronic Social Networking Media. It offers a new acronym, ESM, meaning electronic social media. Judges are allowed to participate in ESM so long as they "comply with the 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."
Nothing new there but I did note this paragraph:
A judge should disclose on the record information the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification even if the judge believes there is no basis for the disqualification. For example, a judge may decide to disclose that the judge and a party, a party’s lawyer or a witness have an ESM connection, but that the judge believes the connection has not resulted in a relationship requiring disqualification. However, nothing requires a judge to search all of the judge’s ESM connections if a judge does not have specific knowledge of an ESM connection that rises to the level of an actual or perceived problematic relationship with any individual.
That is indeed new. I like the practicality of that advice. In the same way, we have had judges note on the record, "I know Mr. Simek of Sensei Enterprises and have had some social interactions with him - does (the other side) have any objection to proceeding in this case with Mr. Simek as an expert?" Invariably, the answer is "No, your Honor" but I love the transparency.
Judges who are active on social media will certainly want to read this opinion carefully.
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