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Can I Post This?: Law Clerks on Social Media

In late September, about one month into my second judicial clerkship, many of the law clerks for the judges and magistrate judges of the United States District Court for the District of Maryland collected in a conference room in the Clerk’s Office for a live-streamed training by a federal district court judge in another district.  The topic: What Every Law Clerk Needs to Know about Ethics When Starting a Clerkship.

The presentation covered several ethical topics before winding its way to some points about social media. The presenter informed us that we could not post anything disparaging about the court or that would detract from the court’s dignity. We nodded in agreement.  Sure, that made sense.  We were also told to not post anything about any pending cases or anything that would suggest that we engaged in favoritism or otherwise could influence a case.  More nods from the clerks.  Of course we would have access to confidential information in chambers that couldn’t be broadcasted.

But then the presenter commented on how law clerks should refrain from associating with or commenting on any politics and social issues that may be litigated by the court and she started listing a few current issues, including President Trump’s immigration and transgender military personnel bans and the white nationalist march in Charlottesville, Virginia.

Concerned expressions flashed across several law clerks’ faces as they racked their brains about their recent social media posts.  A law clerk posed a question about her posts from before she started clerking and was told that if there was anything on her feed that could call her impartiality as an employee of her judge and the court into question or possibly be challenged before the Court, she needed to make it private or delete it and refrain from commenting in the future until after the end of her clerkship.

I would bet that this was not the only law clerk in the room to realize that he or she had posted some inappropriate content on social media given his or her employment with the court.  Instead, this was just one law clerk’s moment of realization when she recognized that her use of social media undercut some of the aims and policies of the court, including the need to maintain the appearance of neutrality and impartiality within the judiciary.  It can be difficult in today’s media age to not engage when a young attorney hears about something he or she feels is right or wrong.  Attorneys are advocates and many feel an obligation to make their voices heard regarding legal issues, to inform and set their non-legal peers straight on the issues.

But there is a time and place for that.  That does not mean that current or future law clerks cannot express their views.  Instead, they just should not do so on social media where other people can see and possibly misinterpret their viewpoints and attribute them to the court or judge for which the law clerk works.  As difficult as it might be for any attorney to refrain from posting, liking, or engaging with certain content on social media, law clerks, with their close working relationship to judges, need to ensure that their use of social media adheres to the judiciary’s need to maintain neutral and impartial.

A version of this article was published in the November/December 2018 issue of The Baltimore Barrister.







Lake, Lauren E.