Though a Wisconsin appellate court held last year that a judge who accepted a “friend” request from a party should be replaced, the Florida Supreme Court has held a Facebook “friendship” with counsel is not grounds for disqualification. The 4–3 decision in Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Association departs from standing Florida precedent and highlights the lack of uniformity in guidance on the issue of social media relationships with judges.
In the underlying lawsuit, the plaintiff law firm sued the defendant over unpaid legal bills. While that case was pending, the plaintiff law firm filed a motion to disqualify the trial judge, in part on the fact that an attorney appearing “on behalf of a potential witness and potential party in the pending litigation” was listed as a “friend” on the judge’s personal Facebook page. The trial judge denied the disqualification motion as legally insufficient, despite the submission of affidavits from attorneys citing “a well-grounded fear of not receiving a fair and impartial trial.”
The plaintiff then petitioned Florida’s Third District Court of Appeal for a writ of prohibition to disqualify the trial judge. The appellate court denied the petition, holding 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.’”
In its decision, the appellate court recognized that Florida’s Fourth District Court of Appeal had already “held that recusal was required when a judge was a Facebook ‘friend’ with the prosecutor.” This holding was based on a 2009 Judicial Ethics Advisory Committee (JEAC) Opinion. The Third District acknowledged that its decision was in “conflict” with the Fourth District but did not certify a conflict for the Florida Supreme Court. Rather, the supreme court granted jurisdiction for review.
In a 4–3 decision authored by Chief Justice Charles T. Canady, the Florida Supreme Court affirmed the Third District’s holding that a Facebook “friendship” between a judge and an attorney appearing before the judge, standing alone, is not enough to disqualify the judge. As the majority observed, “[p]articular friendship relationships may present such circumstances requiring disqualification. But our case law clearly establishes that not every relationship characterized as a friendship provides a basis for disqualification.” The court continued: “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.” Specifically, “Facebook ‘friendship’ varies in degree from greatest intimacy to ‘virtual stranger’ or ‘complete stranger,’” said the majority opinion. Facebook friendships, on their own, provide “no significant information” about any actual relationship between the parties.
In rendering its decision, the majority in Herssein disapproved the 2012 precedent set by the Fourth District in Domville v. State. The majority further disagreed with the 2009 Florida JEAC opinion, which prohibited judges from adding lawyers who appear before them as Facebook friends. “The JEAC’s position simply cannot be reconciled with this Court’s longstanding treatment of disqualification motions based on mere allegations of traditional ‘friendship,’” the court held.
The dissent in Herrsein would adopt a rule that “social media friendships between judges and lawyers who appear in the judge’s courtroom should not be permitted.” The concurrence, meanwhile, advises judges to “steer clear of social media” entirely, “because misperception is all too easy,” explains John M. Barkett, Miami, FL, cochair of the ABA Section of Litigation’s Ethics & Professionalism Committee. Although Barkett agrees with this sentiment in the concurrence, he predicts that the majority opinion in Herrsein will govern as a majority view across jurisdictions.
As the majority in Herrsein noted, its position is in line with a majority of other states’ ethics committees that have addressed this issue. Specifically, at least eight other states have found that Facebook friendship alone does not create an appearance of impropriety. But at least four other states (California, Connecticut, Massachusetts, and Oklahoma) do allow disqualification on this basis alone.
Barkett predicts that moving forward, opinions in Florida and other states will be sure to limit their holdings to the facts, as the court did in Hurssein. Barkett can envision scenarios in which additional evidence could point to disqualification “if the judge starts to post on a website, raising questions about the judge’s bias, or if a ‘friend’ posts things that he or she wants the judge to see.”
Unfortunately, the required case-by-case analysis prevents clear guidance on the issue moving forward, Barkett observes. Herrsein is the perfect example. “It was a 4–3 decision, and the concurring judge says I agree with the majority, but I also agree with the dissent that you shouldn’t be on Facebook,” he muses. “Where does that leave you?”
Barkett agrees with the concurrence that “the safest course is not to participate at all.” He says he would advise judges the same way. “Don’t be on Facebook; it’s just not worth it,” he opines. “You cannot put yourself in the position where the public ever sees you as erring. You’re held to a different standard.”
