CBA Record November-December 2022

become candidates for nonjudicial offices, new Rule 4.5(A) does not substantially alter what is currently found in Illinois Supreme Court Rule 67A(2), but the new version does provide clarification in defin ing when a judicial candidate actually becomes a candidate (by making a public announcement of candidacy, by declaring or filing as a candidate, by soliciting or accepting contributions or support, or by being nominated for election). Finally, new Rule 4.5(B) will explicitly state what is already implied in current Illinois Supreme Court Rule 67A(2) - that a judge does not have to resign as judge when they are applying for or being con sidered for a nonjudicial appointive office. The new rule reflects what has been the traditional practice throughout Illinois and the United States. Social Media A significant change throughout the new Code is the identification of instances in which judges should be thinking about their social media interactions. The new Code has the country’s most comprehen sive guidance for judges regarding social media. Indeed, the ABA’s Model Rules – published just after Facebook’s debut in 2006 – make no reference at all to social media. While “social media” was once limited perhaps only to Facebook or MySpace, social media now includes an ever-growing selection of platforms including TikTok, Twitter, Instagram, Snapchat, LinkedIn, Reddit, and many others. Each plat form caters to somewhat different audi ences, offers different tools, and in some cases, its own language. However, when stripped down to its core function, each social media site simply provides users a way to communicate directly with others around the globe. This phenomenon has resulted in significant uncertainty as to what types of interactions are appropriate for the judiciary. The new Code addresses social media concerns throughout, reminding judges of their obligations and providing exam ples of how those obligations interplay with a social media-driven world. To start,

Paragraph [4] in the Preamble reminds judges that Code violations can occur on the internet and on social media. A number of other places in the new Code remind judges about social media pitfalls. Rule 1.3 (Avoiding Misuse of the Prestige of Judicial Office) instructs judges that they should not misuse the prestige of judicial office to advance personal or eco nomic interests, and Comment [1] points out that the prohibition extends to social media interactions. Rule 2.1 (Giving Precedence to the Duties of Judicial Office) now includes Comment [1], which cautions judges that they should not use social media in a way that would result in frequent disqualifica tions. Rule 2.8 (Decorum, Demeanor, and Communication with Jurors) includes a Comment reminding judges that jurors should not be commended or criticized for verdicts on social media. Rule 2.9 (Ex Parte Communications) includes two Comments related to social media, the first instructing that judges should not make communications regarding a pro ceeding on social media platforms, and the second reminding judges that when they maintain a presence on social media platforms, they need to be aware of the danger of ex parte communications. Rule 2.10 (Judicial Statements on Pending and Impending Cases) includes a Comment that reminds judges who are active on social media that they should understand that their comments in those forums could be considered “public,” and that judges should be aware of the nature and efficacy of privacy settings on social media sites. Comment [7] in Rule 2.11 (Disqualification) notes that a judge’s use of social media can create the appearance of a relationship between a judge and a lit igant or lawyer who might appear before the judge, and provides guidance on when disqualification might be advisable. Rule 3.7 (Participation in Educational, Religious, Charitable, Fraternal, or Civic Organizations and Activities) includes new Comment [3A] providing that judges may not use social media to promote the activities of educational, religious, chari table, fraternal, or civil organizations

when a judge would otherwise be prohib ited from doing so using other means. Finally, Rule 4.1 (Political and Cam paign Activities in Public Elections) includes Comment [2A] noting that public endorsements can occur on social media. At a public hearing regarding the adop tion of the new Code, IJEC’s Chair Steve Pflaum noted that while the new Code is based on the ABA’s Model Code, “aspects of the Illinois Code can be expected to serve as a model for adoption in other states. The IJEC has seen firsthand that rules that were developed just a decade ago needed updating to clarify and define limits on the ways judges interact with the public on social media. The new Code is especially noteworthy for providing judges with guidance regarding how the ethics rules apply to the use of Facebook, Twitter, and other social media.”

Judge Jasmine V. Her nandez is an Associate Judge in the Circuit Court of Cook County, First Municipal District. Trisha Rich is a litigator and legal ethicist at Hol land & Knight and the President of the Asso ciation of Professional Responsibility Lawyers, the national bar associa tion for legal ethicists.

Parts of this article are adopted from IJEC materials related to the new Code, with IJEC’s permission. The current members of the Illinois Judicial Ethics Committee Members are John Cork ery, Hon. Eugene Doherty, Hon. Thomas Donnelly, Kevin Hopkins, Hon. Michael Hyman, Mia Jiganti, Hon. Ann Jorgensen, Hon. Mary Cay Marubio, Hon. Raymond McKoski (ret.), Charles Northrup, Steven Pflaum, Dennis Rendleman, Trisha Rich, Mary Robinson, Hon. Stacey Seneczko, Zachary Sorman, Hon. April Troemper, and Hon. Carl Anthony Walker. IJEC is chaired by Steven Pflaum and its Vice Chair is Hon. McKoski.

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