The Oklahoma Bar Journal August 2023

The court agreed with the inter mediate appellate court’s findings that judges may have hundreds of Facebook friends, ranging from old high school classmates to close, present-day friends, and “Facebook members often cannot recall every person they have accepted as ‘friends’ or who have accepted them as ‘friends.’” 17 The Supreme Court concluded, “No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and attorney appearing before the judge are Facebook ‘friends’ with a relationship of indetermi nate nature.” 18 The court noted that just as there are different degrees of traditional friendships varying in closeness, “the establishment of a Facebook ‘friendship’ does not objectively signal the existence of the affection and esteem involved in a traditional ‘friendship.’” 19 In the con text of a motion for disqualification, unless there are specific facts tending to show a particular friendship is close in nature, “the mere existence of a Facebook ‘friendship,’ in and of itself, does not inherently reveal the degree or intensity of the relationship between the Facebook ‘friends.’” 20 The Florida decision is consistent with the majority of states that recog nize that not all social media connec tions signify a close relationship. 21 Oklahoma’s rule discouraging judges from using Facebook is presently shared by a minority of other states. 22 The majority of states reject a bright-line rule of disqualification based solely on the existence of a friendship or virtual connection. Instead, they take a more permissive approach to judges using social media; judges may use social media but are encouraged to disclose to the litigants if they are friends or have some other social

in this Code are the precepts that judges, individually and collec tively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.” 24 For this reason, the Code of Judicial Conduct requires judges to “uphold and promote the inde pendence, integrity, and impar tiality of the judiciary” and “avoid impropriety and the appearance of impropriety.” 25 And pursuant to Rule 2.11 of the code, a judge is required to disqualify “himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned,” including cases where the “judge has a personal bias or prejudice concerning a party or a party’s lawyer.” 26 “Judges must apply extra caution when using social media because their online activ ity may be easily misconstrued or create an appearance of partiality requiring disqualification.” 27 These principles of avoiding impropriety, or the appearance of impropriety, and remaining impar tial should be the touchstone for

media relationship that is reason ably relevant to a possible motion for disqualification. Because these “interpersonal relationships are var ied, fact-dependent, and unique to the individuals involved[,] ... judges [ ] ultimately must determine the nature of their own specific relation ships with particular individuals and their ethical obligations result ing from those relationships.” 23 This approach recognizes that there is nothing inherently inappropriate about a judge making use of a social network. However, even in states with much more lenient opinions on the use of social media by judges, advisory panels and courts recom mend that judges exercise caution and avoid social media connections that may create an appearance of bias or impropriety. CODE OF JUDICIAL CONDUCT OKLAHOMA RULE 2.11 Oklahoma’s Code of Judicial Conduct contains canons and rules that should guide a judge in deter mining what is appropriate use of social media. The preamble states, “Inherent in all the Rules contained

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL