CJEO Oral Advice Summary No. 2020-037 — Judicial Obligations Relating to Social Media Comments by Appellate Court Staff

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street, Room 1144
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Oral Advice Summary 2020-037
[Issued October 23, 2020]
JUDICIAL OBLIGATIONS RELATING TO SOCIAL MEDIA COMMENTS BY
APPELLATE COURT STAFF
I. 	Questions
The committee has been asked for advice on what, if any, ethical obligations appellate
justices have once they become aware that a member of their staff has made inappropriate
comments online that would violate the canons.1
1 	All further references to canons, the code, advisory committee commentary and to
“Terminology” are to the California Code of Judicial Ethics unless otherwise indicated.

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II. 	Advice Provided
The canons mandate that appellate justices exercise reasonable direction and control over
the conduct of their staff to prevent them from making public comments that would violate the
canons. When a justice becomes aware that a staff member has used social media to post a
comment that violates the canons, the justice should immediately take steps to remedy the
ethical violation, including at a minimum requiring the staff member to take all reasonable steps
to have the post taken down and removed from the public domain.
III. 	Discussion
Social media has become a common way to communicate with colleagues, friends and the
world at large, a trend that has accelerated during the current pandemic as other avenues for
communicating have become more limited. In many ways, social media has taken the place of
both the proverbial office water cooler and the town square. As with any other members of the
general public who participate in social media to express themselves, appellate court staff can be
expected to post their thoughts, comments and opinions online. Perhaps not surprisingly, such
postings can, and frequently do, reference their employment at the court.
Appellate court staff are not prohibited from posting comments on social media about their
employment or about the courts in general.2 But, the canons constrain the content of any such
comments and obligate justices to require staff compliance with the canons. (Canons 3B(9) and
3C(3).)3 Accordingly, appellate court staff must refrain from posting comments on social media
that violate the canons.
2 	As a term of their employment, court staff are required to keep confidential the decision
making process of a court with respect to any pending matter.
3 	Canon 3B(9) states in pertinent part that “A judge shall not make any public comment
about a pending or impending proceeding in any court, and shall not make any nonpublic
comment that might substantially interfere with a fair trial or hearing. The judge shall require
similar abstention on the part of staff and court personnel subject to the judge’s direction and
control.” Canon 3C(3) states in full that “A judge shall require staff and court personnel under
the judge’s direction and control to observe appropriate standards of conduct and to refrain from

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Certain canons, including canons 3B(9) and 3C(3), require justices to exercise reasonable
direction and control over the conduct of the staff that they employ. The canons define the term
“required” to mean that justices are “to exercise reasonable direction and control over the
conduct of those persons subject to [their] direction and control.” Appellate justices face
discipline if they fail to exercise such “reasonable control and direction” over their staff to
prevent them from making inappropriate comments on social media. (Public Admonishment of
Commissioner Mark Kliszewski (2017) [commissioner’s failure to take sufficient corrective
action to stop court staff from making inappropriate comments violated canons 3B(4) and
3C(3)]; see also Geyh et al., Judicial Conduct and Ethics (5th ed. 2013) § 6.03 [compiling cases
outside of California in which judicial officers have been disciplined under similar canon
provisions as a result of the unethical conduct of their staff].)
Once a justice becomes aware that a staff member has posted a comment on social media
that violates the canons, the justice must take reasonable steps to remedy the ethical violation.
At a minimum, the justice should instruct the staff member to take all reasonable steps to delete
or to have removed from public view any improper comment that violates the canons, and then
follow up with the staff member to ensure that they have done so. If the justice becomes aware
that an improper comment has already been viewed by the public, republished or otherwise
disseminated, then depending on the circumstances, the justice may need to instruct the staff
member to correct or repudiate the comment on social media, particularly if the comment is
demeaning or offensive, or otherwise undermines the dignity of the court. Appropriate training
will assist appellate court staff in understanding the vital role that they play in maintaining
public confidence in the integrity of the judicial system, as well as the importance of
maintaining confidentiality and impartiality and of upholding the dignity of the court in their
postings to social media.
(a) manifesting bias, prejudice, or harassment based upon race, sex, gender, gender identity,
gender expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital
status, socioeconomic status, or political affiliation, or (b) sexual harassment in the performance
of their official duties.”

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This oral advice summary is advisory only. (Cal. Rules of Court, rule 9.80(a), (e); Cal.
Supreme Ct. Com. Jud. Ethics Opns. (CJEO), Internal Operating Rules & Proc. rule 1(a), (b).)
It is based on facts and issues, or topics of interest, presented to the California Supreme Court
Committee on Judicial Ethics Opinions in a request for an opinion (Cal. Rules of Court, rule
9.80(i)(3); CJEO rules 2(f), 6(c)), or on subjects deemed appropriate by the committee (Cal.
Rules of Court, rule 9.80(i)(1); CJEO rule 6(a)). The conclusions expressed in this summary
are those of the committee and do not necessarily reflect the views of the California Supreme
Court or any other entity. (Cal. Rules of Court, rule 9.80(b); CJEO rule 1(a)).)