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New Mexico Judges Warned to Use Social Media With Caution

New Mexico's highest court did not ban judges from websites like Facebook and Twitter, but warned about the appearance of impropriety and offered guidelines that some observers worry may go too far.

by Andrew Oxford, The Santa Fe New Mexican / June 22, 2016

(TNS) -- Leaving a friend request on Facebook unanswered can be awkward, even for judges, but posting too much information can be especially tricky for members of the judiciary.

In a decision issued Monday, the New Mexico Supreme Court cautioned judges to think carefully about what they share and who they “friend” online, citing a series of cases around the country where social media drama spilled into the courtroom.

The decision in State v. Truett Thomas reverses an Albuquerque man’s convictions for murder and kidnapping because of the admission of Skype testimony that the court said denied the man his constitutional right to confront an adverse witness. The case was remanded for a new trial on the murder charge.

But Facebook posts about the case by a judge who presided over Thomas’ trial spurred Chief Justice Charles W. Daniels to devote several pages of a 38-page decision to social media ethics and etiquette.

The state’s highest court did not ban judges from websites like Facebook and Twitter but warned about the appearance of impropriety and offered guidelines some observers worry may go too far.

The court said judges should not post personal messages to the social media accounts or websites of their election campaigns except for statements about their qualifications. Judges should not allow public comments on those same accounts, the court said, and should not engage in dialogue with other users. The court also said campaign websites and social media profiles should be set up and maintained by campaign committees rather than judges themselves.

Chief Justice Charlie Daniels wrote in the opinion that judges should consider every comment on social media as public, and he called on judges to use their privacy settings and exercise care when accepting requests to “friend” or connect with others.

Daniels cited a Florida case in which a lawyer asked to disqualify a trial judge because the lawyer did not respond to the judge’s friend request on Facebook, creating what the lawyer argued was a reasonable fear of offending the judge and not receiving a fair trial.

In Thomas’ case, it was not long after a jury convicted him of murder and kidnapping that the presiding judge typed out a post on Facebook.

“Justice was served,” Judge Samuel L. Winder wrote on a page for his election campaign. “Thank you for your prayers.”

Thomas’ attorneys asked for a new trial, raising concerns about the online commentary from Winder during election season. Winder lost the election, and his successor denied the request for a new trial.

The state Supreme Court did not comment on the Facebook post in its ruling, but it turned it into a lesson — a social media “don’t” for judges, who are typically prohibited from discussing cases.

“Members of the judiciary must at all times remain conscious of their ethical obligations,” Daniels concluded, urging judges to apply their codes of conduct to the digital world.

In a blog post Tuesday, an Albuquerque lawyer responded that prohibiting judges from being personally involved in their own campaigns’ social media accounts defeats one of the main purposes of websites like Facebook and Twitter: personal engagement.

Voters are interested in candidates’ records, experience, temperament and personality — not those of the judge’s campaign committee, Emil Kiehne wrote.

A lawyer at the firm Modrall Sperling and author of the blog, Kiehne said he is glad the court is addressing the ethical questions social media poses in the legal community. But he hopes the state’s judges do not take too conservative an approach to new means of communication.

Kiehne sees a positive role for social media in the courts.

“It helps to humanize judges and lets people know judges are people like them and are not divorced from the rest of the population,” he said. “It’s a way for judges to connect with the people they serve.”

Kiehne points to judges like Texas Supreme Court Justice Don Willett, who has cultivated more than 52,000 followers on Twitter, sharing a combination of legal news and witty, sometimes goofy, musings about sports, culture and parenthood.

Willett touts his social media savvy as breaking down a bit of the mystery surrounding a branch of government shrouded in legalese. In states where judges are elected, he also argues staying off social media is foolish.

“Not only is there nothing wrong with judges being good digital citizens and being active on social media, but for certain aspects of a judge’s professional life, it can be vital, particularly in the states where judges are elected,” said John G. Browning, a partner at the Dallas law firm Passman & Jones who has written extensively about social media in the judiciary.

“Judges certainly need to be tech conversant,” he added, noting social media often arises in cases.

The state Supreme Court’s Advisory Committee on the Code of Judicial Conduct issued an advisory opinion on social media in February, providing a primer for judges on the care needed when clicking “like” on Facebook and “connect” on LinkedIn.

The committee said judges should not hide behind aliases or pseudonyms and discouraged endorsing candidates or using websites like Yelp to recommend businesses.

The committee primarily took a hands-off approach, however, urging judges to use their own discretion in applying their code of conduct to social media.

Some states, such as Florida, have taken a tough stance on social media, prohibiting judges from online connections with lawyers who might appear in their court, for example.

But many states are adopting looser policies.

While best practices are often hammered out on a case-by-case basis, courts can be proactive by offering training to judges, said Greg Hurley, an analyst at the National Center for State Courts.

Courts face a challenge in keeping up with technology that is constantly changing, he added.

“For the younger generation, Facebook is passé,” Hurley said. “But for the legal community, it’s still new.”

Kiehne said he hopes the court will revisit the issue of social media soon. But Browning said courts do not necessarily need new policies.

“We don’t need any sort of new rules that directly or specifically address social media,” he said. “We just need to be mindful that the existing rules of judicial conduct apply to activities online.”

©2016 The Santa Fe New Mexican (Santa Fe, N.M.) Distributed by Tribune Content Agency, LLC.

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