The Oklahoma Bar Journal August 2023

support personnel, we must consider the impact of our statements on the public. We must avoid the percep tion of showing favoritism toward any litigants or parties. We should not engage in polit ical discussion or otherwise make negative comments about the other branches of govern ment. We want to gain the trust and respect of the public. Likewise, we must show respect. Please remember that our non-partisan system of select ing judges was adopted at a time of great public mistrust of our state judicial system. We must be cautious in any public comment which suggests we no longer value our non-partisan status. Help all of us maintain high ideals. Thank you for your contin ued hard work and service to all communities in Oklahoma. Think before you post. You are the face of the judiciary. 43 Until such time that the panel reconsiders its opinion or the Oklahoma Supreme Court adopts the majority position allowing more flexible use of Facebook and other social media platforms, judges who decide to use social media to communicate and connect with others are wise to remem ber that less is best. Avoid liking, retweeting and commenting on others’ posts; if you must, exercise great caution. In choosing who you friend or follow or what groups to join, remember to “aspire at all times to conduct that ensures the greatest public confidence.” 44 Use privacy settings to control who sees your account and your posts. And remember that everything a judge posts on social media is a reflection

of not just the judge but also of the judicial system. Use social media to build confidence in the rule of law and the judiciary. Author’s Note: The author thanks the Oklahoma Bar Journal Board of Editors Chair Melissa DeLacerda for her solicitation and support of this article .

20. Id. at 897. 21. See also McGaha v. Commonwealth , 414 S.W.3d 1, 6 (Ky. 2013) (“It is now common knowledge that merely being friends on Facebook does not, per se , establish a close relationship”), Kirby v. Wash. State Dep’t. of Emp. Sec. , No. 70738-8-I, 214 WL7339610, at *1 (Wash Ct. App. Dec. 22, 2014) (“The words ‘post,’ ‘friend,’ and ‘friending’ used in the [Facebook] context merely refer to individuals communicating with those listed on a social networking website and do[ ] not, necessarily, imply any more significant relationship between those individuals.”) 22. Florida, Massachusetts and Oklahoma take a “strict approach.” California, Arizona, Utah, Texas, North Carolina and Florida take a “moderate approach.” Maryland, New York, Kentucky, Ohio, South Carolina, Georgia and Tennessee have taken a more “liberal approach.” Shaziah Singh, “Friend Request Denied: Judicial Ethics and Social Media,” 7 Case W. Reserve J.L. Tech. & the Internet 153, 167 (2016). 23. N.Y. Jud. Ethics Comm., Formal Op. 13-39, ¶3 (2013) (“the mere status of being ‘Facebook friend,’ without more, is an insufficient basis to require recusal”). 24. Okla. Stat. tit. 5 app. 4, §Preamble (OSCN 2023) (Code of Judicial Conduct). 25. Id . §Canon 1. 26. Id . §Rule 2.11(A)(1). 27. See In re Disqualification of Kerenyi , 2020-Ohio-1082, 160 Ohio St. 3d 1201, 1203, 153 N.E.3d 121, 123. 28. Okla. Stat. tit. 5 app. 4, §Rule 1.2 cmt. [2]. 29. See In re Webb , File No. B21-8602 and B21-8654, Tenn. Bd. of Jud. Conduct (Nov. 5, 2021) (Letter of Reprimand to Judge Gerald Webb). 30. See In re Johns , Opinion No. 28064 (S.C. Oct. 13, 2021). 31. See In re O’Gara , Cal. Comm. on Jud. Performance Decision and Ord. Imposing Pub. Admonishment (Sept. 14, 2021). 32. See In re Peck , N.Y. Comm. on Jud. Conduct (March 19, 2021). 33. See In re Young , File No. B20-8220, Tenn. Bd. of Jud. Conduct (Oct. 5, 2020). 34. See In re Lammey , File No(s). B19-7753 and B19-7777, Tenn. Bd. of Jud. Conduct (Letter of reprimand). 35. https://bit.ly/44vRRs4 (last accessed July 14, 2023). 36. See In re Lammey , File No(s). B19-7753 and B19-7777, Tenn. Bd. of Jud. Conduct (Letter of reprimand). 37. See In re Almase , 2017-099-P, Nev. Comm. on Jud. Discipline (Oct. 22, 2018). 38. See In re Boyd , File No. B22-9105, Tenn. Bd. of Jud. Conduct (May 8, 2023). 39. See In re Peterson , File No(s). 220-280, 2020-316, 2020-317, 2020-525, 2021-017, Jud. Qualifications Comm. (Ga. July 22, 2021). 40. Peter M. Reyes Jr., “To Post or Not to Post: Judges on Social Media,” Summer 2019 ABA The Judges’ Journal . 41. John G. Browning, “When All That Twitters Is Not Told: Ethical Risks in Judicial Use of Social Media,” Fall 2021 ABA The Judges’ Journal . 42. Okla. Jud. Ethics Advisory Panel, Formal Op. 11-3, ¶7 (2011). 43. Social statement from the Chief Justice Noma D. Gurich, Supreme Court of Oklahoma (November 2019). 44. Okla. Stat. tit. 5 app. 4, §Preamble [2] (OSCN 2023), Appendix 4 – Code of Judicial Conduct.

ABOUT THE AUTHOR

Judge Thad Balkman was appointed district judge for the 21st Judicial District (Cleveland County) in 2013. Judge Balkman

currently serves as presiding judge of the Oklahoma Court on the Judiciary, Trial Division, and chairman of the Rules of Professional Responsibility Committee. He has been the president of the Oklahoma Judges Association since 2018, and he is the past president of the Oklahoma Judicial Conference. He is a member of the Uniform Law Commission. 1. Survey by Thad Balkman of Oklahoma judges “Your Experience with Social Media” (May 23, 2023). 2. Britannica, https://bit.ly/3OguGfQ (last visited June 2, 2023). 3. Survey “Your Experience with Social Media,” supra note 1. 4. Okla. Jud. Ethics Advisory Panel, Formal Op. 11-3, ¶7 (2011). 5. Id. ¶¶1, 3. 6. Id . ¶7. 7. Id . ¶2. 8. Id. ¶6. 9. Id . 10. Id. 11. Mandamus, Clark v. Sullivan , FD-2017-38, No. MA-115029, (Okla. Order No. 116, 029 granted June 20, 2017). 12. Okla. Jud. Ethics Advisory Panel, Formal Op. 11-3, ¶7. 13. Id. 14. Id. at ¶8. 15. 271 So. 3d 889 (Fla. 2018). 16. Id. at 898-99. ENDNOTES

17. Id. at 892. 18. Id. at 897. 19. Id. at 896.

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