Monday, June 18, 2012

Maryland's Social Media Judicial Ethics Opinion

Since 2010, Maryland has taken the lead in social media law and compliance. In 2010, Maryland became the first state to draft (Full Disclosure: I worked with the Maryland Board of Elections to draft the regulations) social media election regulations. These regulations treat state office digital campaign materials in the same manner as traditional campaign materials and do not put any extra burdens on candidates and their campaigns.

In 2011, the judiciary flexed its social media wings in Griffin v. State of Maryland, when it stated that social media evidence must be properly authenticated when introduced during trial. In 2012, Maryland became the first state to create social media privacy legislation that protects both employers and employees (Full Disclosure: I worked with multiple state lawmakers to pass this legislation). This legislation was groundbreaking and has been used as a template by at least 15 other states and multiple members of Congress.

On June 12, 2012, the Maryland Judicial Ethics Committee published an opinion providing guidance regarding the judiciary's use of social media. The main point of the decision is that, "a judge must recognize the use of social media networking sites may implicate several provisions of the Code of Judicial Conduct, and, therefore, proceed cautiously."

The Florida Supreme Court's Judicial Ethics Advisory Committee's opinion that prohibited judges from adding lawyers who may appear before them as "Facebook Friends" demonstrated a lack of understanding of social media. If judges can be friends in the real world and join the same social clubs as lawyers who appear before them they should be able to be Facebook Friends. California, New York, Kentucky, Ohio and South Carolina have taken a different position than Florida and their rules appear to generally demonstrate a better understanding of how online relationships are analogous to real world relationships.

The Maryland Judicial Ethics Committee appears to have taken a position that generally follows California, New York, Kentucky, Ohio, and South Carolina. The Maryland Judicial Ethics Committee stated "the mere fact of a social connection does not create a conflict" while referring to online social media connections. The bottom line is that Maryland once again has demonstrated an understanding of how social media intersects with the law.

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