Ethical Obligations Regarding Social Media: The Next Legal Frontier Issues for Neutrals

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1 Keith D. Greenberg, Esq. Impartial Arbitrator and Mediator 6117 Calwood Way, North Bethesda, Maryland Telephone: (301) Facsimile: (240) PRACTICE LIMITED TO ARBITRATION AND MEDIATION Ethical Obligations Regarding Social Media: The Next Legal Frontier Issues for Neutrals The vast majority of practicing private neutrals are bound by disclosure requirements and prohibitions on most ex parte communications under their applicable professional codes. 1 For those arbitrators who hear cases arising under the Federal Arbitration Act, 9 U.S.C. 1 et seq., failure to disclose may result in a finding of evident partiality or corruption in the arbitrator sufficient to permit a court to vacate an arbitration award. 2 Similarly, state statutes, particularly those incorporating the Revised Uniform Arbitration Act, may place additional disclosure requirements upon arbitrators, or restrictions on their communications. In addition, the rules of appointing agencies, such as the American Arbitration Association or JAMS, applicable to a given dispute may require disclosures or prohibit certain communications between neutrals and parties or their advocates. These statutes, codes, rules, and standards require disclosure, of varying degrees, of personal, professional, business, representative, and/or consultative relationships with the parties to a dispute that the neutral has been retained to resolve. In light of these obligations, the use of Facebook, LinkedIn, and other social media platforms by arbitrators and mediators presents a unique problem of balance. Private neutrals have business development considerations that others in similar positions of authority, such as judges or court-annexed mediators, do not, but both have the same obligations of neutrality and impartiality to the parties who appear before them. It is easy to imagine how these interests might conflict. 1 See, e.g., Section 2(B), Code of Professional Responsibility for Arbitrators of Labor-Management Disputes; Canon II, The Code of Ethics for Arbitrators in Commercial Disputes; Standard III, Model Standards of Conduct for Mediators. 2 9 U.S.C. 10(a)(2) (2014).

2 Ethical Obligations Regarding Social Media: The Next Legal Frontier Issues for Neutrals Page 2 of 8 What is a neutral to do with regard to disclosure, and what are parties to expect of their neutrals? Some neutrals have addressed this issue with a vow of online silence, choosing to eschew any social media presence at all. While this approach is perfectly appropriate and may work for some, social media profiles provide neutrals with an online presence a place for easy access to a CV or biographical sketch, a means to contact the neutral, and, often, a way to provide an additional (if sometimes marginal) degree of legitimacy to the neutral and his or her practice. From a practical perspective, it may be difficult for younger neutrals, who may have been effective and prodigious online networkers as advocates, to shed a career s worth of electronically-supplemented relationships and connections as they transition into the neutral role, where those networks may be crucial as they break into their new field. In fact, some advocates have noted their preference for an arbitrator with a presence on social media because of the easier access to information about the arbitrator and the increased transparency regarding at least some of the arbitrator s social connections. 3 The use of social media may even lead to improved attorney-client relations; because a client can have the same access to information about the neutral as his or her attorney, the client can more knowledgably participate in the neutral selection process. Some professional organizations have promulgated their own guidance on this issue, 4 though such guidance is not necessarily binding on labor and employment neutrals. In the absence of more specifically tailored discussion on social media disclosure by private neutrals, perhaps the best sources for guidance are ethics opinions regarding the juxtaposition of the judiciary and social media. Many also address the extent to which social media activity may be viewed as improper or, in some cases, permissible ex parte communications. However, even these sources are far from consistent. While, among others, Arizona, 5 California, 6 the District of 3 See, e.g., Michelle Sherman, Why Companies Want Arbitrators Who Have a Public Profile on LinkedIn and the Internet, Sheppard Mullin Social Media Law Blog, March 9, 2011 (available at 4 Chartered Institute of Arbitrators, New York Branch Social Media Guidance Note, 5 Arizona Supreme Court Judicial Ethics Advisory Committee, Use of Social and Electronic Media by Judges and Judicial Employees, Advisory Opinion (May 5, 2014) 6 California Judges Association Judicial Ethics Committee, Online Social Networking, Opinion 66 (November 23, 2010) ( While it may be permissible for a judge to interact on a social network site with an attorney who may appear before the judge, it is not permissible to interact with attorneys who have matters pending before the judge. When a judge learns that an attorney who is a member of that judge s online social networking community has a case pending before the judge the online interaction with that attorney must cease (i.e. the attorney should be

3 Ethical Obligations Regarding Social Media: The Next Legal Frontier Issues for Neutrals Page 3 of 8 Columbia, 7 Kentucky, 8 Maryland, 9 Massachusetts, 10 New York, 1112 Ohio, 13 Pennsylvania, 14 South Carolina, 15 and Utah, 16 have issued opinions expressly permitting judges to make use of social media platforms, generally on the theory that judges are not prohibited from socializing in unfriended ) and the fact this was done should be disclosed along with the disclosure discussed above. Regardless of the nature of the social networking page, maintaining online contacts while a case is pending creates appearance issues that cannot be overcome through disclosure of the contacts. ). 7 District of Columbia Bar Ethics Opinion 371, Social Media II: Use of Social Media in Providing Legal Services (November 2016) ( When no case or proceeding involving a lawyer is pending, Rule 3.5 does not forbid the lawyer from becoming a friend of judges, arbitrators, regulators, or other neutrals. Nor does it forbid public or private social media communication with such persons, as long as Rule 3.5(a) is not violated. When a case or matter is pending before a decision-maker, the prohibition of ex parte communication in Rule 3.5(b) applies to all communication, including by social media. In such a circumstance a lawyer should consider whether to remove, at least temporarily, the decision-maker as a friend or other connection on social media. (citations omitted)). 8 Ethics Committee of the Kentucky Judiciary, Judges Membership on Internet-Based Social Networking Sites, Formal Judicial Ethics Opinion JE-119 (January 20, 2010) ( While the nomenclature of a social networking site may designate certain participants as friends, the view of the Committee is that such a listing, by itself, does not reasonably convey to others an impression that such persons are in a special position to influence the judge. Certainly, judges have many extra-judicial relationships, connections and interactions with any number of persons, lawyers or otherwise, who may have business before the judge and the court over which he or she presides. These relationships may range from mere familiarity, to acquaintance, to close, intimate friendship, to marriage. Not everyone of these relationships necessitates a judge s recusal from a case. ). 9 Maryland Judicial Ethics Committee, Judge Must Consider Limitations on Use of Social Networking Sites, Opinion Request No (June 12, 2012) ( There is thus a concern that being designated as a friend of a judge on a social networking site might be perceived as indicating both that the person is in a position to influence the judge, and may have ex parte communications with the judge via that medium. The Committee, nevertheless, notes that there is no rule prohibiting judges from having what traditionally has been thought of as friends, be they attorneys or laypersons. (internal citations omitted). 10 Massachusetts Committee on Judicial Ethics, Facebook: using social networking web site, Opinion No (December 28, 2011) ( The Code does not prohibit judges from simply being members of a social networking site such as Facebook. As a Facebook member, you may post on your Facebook wall (e.g., photos, videos, comments, and links to articles found elsewhere on the Internet), and you may like posts that others have made. The substance of those activities, however, must be consistent with the Code. (internal citations omitted)). 11 New York State Advisory Committee on Judicial Ethics, Opinion (January 29, 2009) ( The Committee cannot discern anything inherently inappropriate about a judge joining and making use of a social network. ) 12 New York State Advisory Committee on Judicial Ethics, Opinion (May 28, 2013) ( The Committee believes that the mere status of being a Facebook friend, without more, is an insufficient basis to require recusal. Nor does the Committee believe that a judge s impartiality may reasonably be questioned or that there is an appearance of impropriety based solely on having previously friended certain individuals who are now involved in some manner in a pending action. (emphasis in original) (internal citations omitted)). 13 Supreme Court of Ohio Board of Commissioners on Grievances and Discipline, Opinion (December 3, 2010) ( A judge may be a friend on a social networking site with a lawyer who appears as counsel in a case before the judge. As with any other action a judge takes, a judge s participation on a social networking site must be done carefully in order to comply with the ethical rules in the Ohio Code of Judicial Conduct. ). 14 Pennsylvania Bar Association Formal Opinion , Ethical Obligations For Attorneys Using Social Media ( Attorneys may review a juror s Internet presence.... Attorneys may connect with judges on social networking websites provided the purpose is not to influence the judge in carrying out his or her official duties. ) 15 South Carolina Advisory Committee on Standards of Judicial Conduct, RE: Propriety of a magistrate judge being a member of a social networking site such as Facebook, Opinion No (October 2009) ( A judge may be a member of Facebook and be friends with law enforcement officers and employees of the Magistrate as long as they do not discuss anything related to the judge s position as magistrate. ). 16 Utah Judicial Conduct Commission, Informal Opinion (August 31, 2012).

4 Ethical Obligations Regarding Social Media: The Next Legal Frontier Issues for Neutrals Page 4 of 8 public, all have noted their concern regarding the potential for, at minimum, the appearance of impropriety and place great emphasis on the context of such interactions, with one state judicial ethics committee noting bluntly that social networking sites are fraught with peril for judges. 17 The Florida Judicial Ethics Advisory Committee, however, determined that a judge may not add lawyers who may appear before the judge as friends on a social networking site nor permit such lawyers to add the judge as their friend, 18 and, in later opinions, clarified that a judge may not friend an attorney who appears before him or her even if the judge posts a permanent, prominent disclaimer on the judge s Facebook profile page that the term friend should be interpreted to mean that the person is an acquaintance of the judge rather than a friend in the traditional sense, 19 and that LinkedIn connections with attorneys appearing before the judge are similarly impermissible. 20 The Oklahoma Judicial Ethics Advisory Panel went further still, determining that judges should not friend attorneys, social workers, law enforcement officers, or others who regularly appear in court in an adversarial role. 21 For neutrals who practice across state lines, attempting to comply with these guidelines could prove challenging, if not impossible. Several jurisdictions have also noted that a judge who provides a recommendation through social media, such as endorsements on LinkedIn, to an attorney who regularly appears before them might find their impartiality called into question, 22 though the various opinions do not necessarily take as negative a view on judges seeking recommendations or endorsements for themselves. 23 The American Bar Association Standing Committee on Ethics and Professional Responsibility summarized the views of many state bars when it opined that: All of a judge s social contacts, however made and in whatever context, including ESM [ electronic social media ], are governed by the requirement that judges must at all times act in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and must avoid impropriety and the appearance of impropriety. This requires that the judge be sensitive to the appearance of relationships with others. 17 Ethics Committee of the Kentucky Judiciary, Judges Membership on Internet-Based Social Networking Sites, Formal Judicial Ethics Opinion JE-119 (January 20, 2010). 18 Florida Judicial Ethics Advisory Committee, Opinion No (November 17, 2009). 19 Florida Judicial Ethics Advisory Committee, Opinion No (March 26, 2010). 20 Florida Judicial Ethics Advisory Committee, Opinion No (May 9, 2012). 21 Oklahoma Judicial Ethics Advisory Panel, Judicial Ethics Opinion (July 6, 2011). 22 See, e.g., Utah Judicial Conduct Commission, Informal Opinion (August 31, 2012); Arizona Supreme Court Judicial Ethics Advisory Committee, Use of Social and Electronic Media by Judges and Judicial Employees, Advisory Opinion (May 5, 2014). 23 Utah Judicial Conduct Commission, Informal Opinion (August 31, 2012).

5 Ethical Obligations Regarding Social Media: The Next Legal Frontier Issues for Neutrals Page 5 of 8. A judge who participates in ESM should be mindful of relevant provisions of the Model Code. For example, while sharing comments, photographs, and other information, a judge must keep in mind the requirements of Rule 1.2 that call upon the judge to act in a manner that promotes public confidence in the judiciary, as previously discussed. The judge should not form relationships with persons or organizations that may violate Rule 2.4(C) by conveying an impression that these persons or organizations are in a position to influence the judge. A judge must also take care to avoid comments and interactions that may be interpreted as ex parte communications concerning pending or impending matters in violation of Rule 2.9(A), and avoid using any ESM site to obtain information regarding a matter before the judge in violation of Rule 2.9(C). Indeed, a judge should avoid comment about a pending or impending matter in any court to comply with Rule 2.10, and take care not to offer legal advice in violation of Rule There also may be disclosure or disqualification concerns regarding judges participating on ESM sites used by lawyers and others who may appear before the judge. These concerns have been addressed in judicial ethics advisory opinions in a number of states. The drafting committees have expressed a wide range of views as to whether a judge may friend lawyers and others who may appear before the judge, ranging from outright prohibition to permission with appropriate cautions. A judge who has an ESM connection with a lawyer or party who has a pending or impending matter before the court must evaluate that ESM connection to determine whether the judge should disclose the relationship prior to, or at the initial appearance of the person before the court. In this regard, context is significant. Simple designation as an ESM connection does not, in and of itself, indicate the degree or intensity of a judge s relationship with a person. 24 In light of the current ambiguity of the law in many jurisdictions on this issue, the best approach appears to be over-disclosure of social media connections. Neutrals who elect to maintain a presence on social media may choose to utilize social media disclosures which address the nature of their contacts on a particular social media platform, such as LinkedIn, and explain the professional nature of their contacts with other users of that site as well as their view on endorsements or other possible indicia of a deeper relationship between users of such sites. Another option for neutrals may be to make their social networks transparent even to those outside of those networks, allowing parties a better view of those parties with whom the neutral has chosen to connect, though this approach may result in additional controversy. These approaches should supplement, rather than replace, the more traditional and specific disclosures typically expected by parties, but they represent some additional effort towards alerting parties of connections which in some cases may be more noteworthy to the parties than to the neutral. What is clear from discussion of the implications of social media for disclosure by neutrals is that disclosure remains the best means to protect the parties process and to combat any unfounded perception or appearance of bias which an arbitrator or mediator s social media 24 American Bar Association Standing Committee on Ethics and Professional Responsibility, Judge s Use of Electronic Social Networking Media, Formal Opinion 462 (February 21, 2013) (internal citations omitted).

6 Ethical Obligations Regarding Social Media: The Next Legal Frontier Issues for Neutrals Page 6 of 8 presence might create. As with all issues of disclosure by private neutrals, it is preferable to not be selected for work on the basis of over-disclosure than for parties to later question the integrity of their neutral upon discovery of relevant undisclosed information. As the ABA Standing Committee on Ethics and Professional Responsibility noted in Formal Opinion 462, Because of the open and casual nature of ESM communication, a judge will seldom have an affirmative duty to disclose an ESM connection. If that connection includes current and frequent communication, the judge must very carefully consider whether that connection must be disclosed. When a judge knows that a party, a witness, or a lawyer appearing before the judge has an ESM connection with the judge, the judge must be mindful that such connection may give rise to the level of social relationship or the perception of a relationship that requires disclosure or recusal. The judge must remember that personal bias or prejudice concerning a party or lawyer is the sole basis for disqualification under Rule 2.11 that is not waivable by parties in a dispute being adjudicated by that judge. The judge should conduct the same analysis that must be made whenever matters before the court involve persons the judge knows or has a connection with professionally or personally. 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. 25 In considering what counsel may be permitted to do with social media regarding neutrals, Formal Opinion 466, Lawyer Reviewing Jurors Internet Presence, issued by the Standing Committee on Ethics and Professional Responsibility in 2014, is instructive. It notes, as have many state bars, that: Passive review of a juror s website or ESM, that is available without making an access request, and of which the juror is unaware, does not violate Rule 3.5(b).... It is the view of the Committee that a lawyer may not personally, or through another, send an access request to a juror. An access request is an active review of the juror s electronic social media by the lawyer and is a communication to a juror asking the juror for information that the juror has not made public.... Some ESM networks have a feature that allows the juror to identify fellow members of the same ESM network who have passively viewed the juror s ESM. The details of how this is accomplished will vary from network to network, but the key feature that is relevant to this opinion is that the juror-subscriber is able to determine not only that his ESM is being viewed, but also the identity of the viewer. This capability may be beyond the control of the reviewer because the notice to the subscriber is generated by the ESM network and is based on the identity profile of the subscriber who is a fellow member of the same ESM network.... This Committee concludes that a lawyer who uses a shared ESM platform to passively view juror ESM under these circumstances does not communicate with the juror. The lawyer is not communicating with the juror; the ESM service is communicating with the juror based on a technical feature of the ESM. This is akin to a neighbor s recognizing a lawyer s car driving down 25 American Bar Association Standing Committee on Ethics and Professional Responsibility, Judge s Use of Electronic Social Networking Media, Formal Opinion 462 (February 21, 2013) (internal citations omitted).

7 Ethical Obligations Regarding Social Media: The Next Legal Frontier Issues for Neutrals Page 7 of 8 the juror s street and telling the juror that the lawyer had been seen driving down the street. 26 With regard to ex parte communications, neutrals should continue to comply with their ethical obligations regarding such communications and consider whether their social media activity might give the appearance of improper communications with a party or counsel. Another ethical issue for neutrals raised by the Internet, and social media in particular, is the availability of information relating to the facts of a matter, or of the participants in a dispute resolution process. Facebook or LinkedIn pages may, for example, provide information about grievants, witnesses, or counsel and advocates, as may a review of an individual s Instagram postings. In its Formal Opinion 478, Independent Factual Research by Judges Via the Internet, the American Bar Association Standing Committee on Ethics and Professional Responsibility reviewed the ethical parameters under the ABA Model Code of Judicial Conduct for conducting on-line independent fact-finding not tested by the adversary system. 27 In analyzing this issue, the Committee opined that: When deciding whether to independently investigate facts on the Internet, the judge should consider: 1. Is additional information necessary to decide the case? If so, this type of information generally must be provided by counsel or the parties, or must be subject to proper judicial notice. 2. Is the purpose of the judge s inquiry to corroborate facts, discredit facts, or fill a factual gap in the record? If the facts are adjudicative, it is improper for a judge to do so. 3. Is the judge seeking general or educational information that is useful to provide the judge with a better understanding of a subject unrelated to a pending or impending case? If so, the inquiry is appropriate. Judges may use the Internet as they would other educational sources, like judicial seminars and books. 4. Is the judge seeking background information about a party or about the subject matter of a pending or impending case? If so, the information may represent adjudicative facts or legislative facts, depending on the circumstances. The key inquiry here is whether the information to be gathered is of factual consequence in determining the case. If it is, it must be subject to testing through the adversary process. 28 The Formal Opinion presents a number of hypotheticals, including the following: Hypothetical #3: A social media-savvy lawyer just has been appointed to the bench. Before being appointed, this lawyer used social media to conduct extensive background research on potential jurors and opposing parties. The judge has been assigned to hear a complex, multiparty case involving lawyers from out of state. The judge wants to review the social media and websites of each of the parties and of the out-of-state lawyers to learn background information about the parties, to read the lawyers writings, and to review a list of the lawyers current and former clients. Does this action violate Rule 2.9(C) of the Model Code of Judicial Conduct? 26 American Bar Association Standing Committee on Ethics and Professional Responsibility, Lawyer Reviewing Jurors Internet Presence, Formal Opinion 466 (April 24, 2014) (internal citations omitted). 27 American Bar Association Standing Committee on Ethics and Professional Responsibility, Independent Factual Research by Judges Via the Internet, Formal Opinion 478 (December 8, 2017). 28 Id.

8 Ethical Obligations Regarding Social Media: The Next Legal Frontier Issues for Neutrals Page 8 of 8 Analysis #3: While the Model Code of Judicial Conduct does not prohibit a judge from personally participating in electronic social media ( ESM ), a judge must... avoid using any ESM site to obtain information regarding a matter before the judge in violation of Rule 2.9(C). On-line research to gather information about a juror or party in a pending or impending case is independent fact research that is prohibited by Model Rule 2.9(C). Gathering information about a lawyer is a closer question. The judge s informationgathering about a lawyer may be permissible if it is done merely to become familiar with counsel who appear before the court similar to how a judge may have, in the past reviewed a legal directory like Martindale Hubbell, or to determine whether the lawyer is authorized to practice in the jurisdiction. However, the judge s independent research about a lawyer is not permitted if it is done to affect the judge s weighing or considering adjudicative facts. If an otherwise permissible review results in a judge obtaining information about the existence or veracity of adjudicative facts in the matter, the judge should ask the parties to address the facts in the proceeding through evidentiary submissions. 29 The available guidance, therefore, suggests that neutrals should be cautious in their use of information found on social media and in choosing to actively search for case-related information online. 29 Id. (citations omitted).