November 22, 2018

Facebook friendship between trial judge, attorney not sufficient ground for judge’s disqualification: Florida SC


On November 15, Justice Charles T. Canady, Chief Justice, Supreme Court of Florida, held that an allegation that a trial judge is a Facebook “friend” with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification.

The case in question is Law Offices of Herssein and Herssein, P.A., etc., et al. vs United Services Automobile Association.

The court considered an issue regarding the legal sufficiency of a motion to disqualify a trial court judge on the basis of a Facebook “friendship.”

Earlier, the Third District Court of Appeal had in this case held that the existence of a Facebook “friendship” was not a sufficient basis for disqualification. However, this ruling expressly and directly conflicted with the decision of the Fourth District Court of Appeal in another case, Domville v. State.

Notably, the Supreme Court upheld the Third District’s decision and disapproved the Fourth District’s decision in Domville on the conflict issue.

In the case, the law firm had “filed a motion to disqualify the trial judge.” After the trial judge denied the disqualification motion as legally insufficient, the law firm “petition[ed the Third District] for a writ of prohibition to disqualify the trial court judge.” However, the Third District also disapproved the law firm’s motion.

Citing several previous judgments, the Third District supported the longstanding general principle of law that an allegation of mere friendship between a judge and a litigant or attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification.

The Third District acknowledged that “this authority does not foreclose the possibility that a relationship between a judge and a lawyer may, under certain circumstances, warrant disqualification.”

It also noted that the Fourth District in Domville had “held that recusal was required when a judge was a Facebook ‘friend’ with the prosecutor” based on “a 2009 Judicial Ethics Advisory Committee (JEAC) Opinion.”

In its 2009 opinion, the JEAC had advised that judges were prohibited from adding lawyers who appear before them as “friends” on their Facebook pages or from allowing lawyers who appear before them to add them as “friends” on the lawyers’ Facebook pages based on the Committee’s conclusion that “a judge’s selection of Facebook ‘friends’ necessarily ‘conveys or permits others to convey the impression that they are in a special position to influence the judge’” in violation of Canon 2B of the Florida Code of Judicial Conduct.

Citing a previous case wherein a petitioner had expressed “serious reservations about the court’s rationale in Domville” in part because “[a] Facebook friendship does not necessarily signify the existence of a close relationship”, the Third District explained that the Fifth District subsequently “signaled disagreement” with Domville.

Referring to a previous case, the Third District said:

• First, ‘some people have thousands of Facebook ‘friends’.

• Second, Facebook members often cannot recall every person they have accepted as ‘friends’ or who have accepted them as ‘friends’.

• Third, many Facebook ‘friends’ are selected based upon Facebook’s data-mining technology [suggestions] rather than personal interactions.

Based on these points, the Third District concluded that “A ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word [i.e., a person attached to another person by feelings of affection or personal regard]... “[A]n assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”

The Third District ultimately “H[eld] that the mere fact that a judge is a Facebook ‘friend’ with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook ‘friend’.”

Based on these observations and judgments, the Florida Supreme Court in the present case noted that Facebook friendships are indeterminate in nature and often more casual and less permanent than traditional friendships.

The Supreme Court said, “The establishment of a Facebook ‘friendship’ does not objectively signal the existence of the affection and esteem involved in a traditional ‘friendship’. Today it is commonly understood that Facebook ‘friendship’ exists on an even broader spectrum than traditional ‘friendship’. Traditional ‘friendship’ varies in degree from greatest intimacy to casual acquaintance; Facebook ‘friendship’ varies in degree from greatest intimacy to ‘virtual stranger’ or ‘complete stranger’.”

The SC thus concluded, “Case law clearly establishes that not every relationship characterized as a friendship provides a basis for disqualification. And there is no reason that Facebook ‘friendships’, which regularly involve strangers, should be singled out and subjected to a per se rule of disqualification.”

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