Should Social Media “Friendship” with Attorney Disqualify Judge?

December 10, 2018

Imagine you’re litigating a case and discover that the attorney for the opposing party is Facebook friends with the judge assigned to your case. Would you feel like the judge might be impartial? Perhaps biased toward their “friend”? Should the judge be disqualified from the case? This in an issue that was recently decided by the Florida Supreme Court in Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto. Ass’n, No. SC17-1848, 2018 WL 5994243 (Fla. Nov. 15, 2018). Ultimately, the court held that the Facebook friendship alone does not constitute a legally sufficient basis for disqualification of the judge. In doing so, they affirmed the Third District Court of Appeals decision in this case and disapproved the Fourth District Court of Appeals decision in Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012), disapproved of by Law Offices of Herssein & Herssein, P.A. v. United Services Auto. Ass’n, SC17-1848, 2018 WL 5994243 (Fla. Nov. 15, 2018).

In Florida, if the facts alleged by the moving party in their motion to disqualify would cause a reasonably prudent person to fear they will not receive a fair and impartial trial in front of the judge, then they have established a sufficient basis to disqualify the judge. Herssein, 2018 WL 5994243 at*3.

The Florida Supreme Court then analyzed this standard in the context of traditional friendship and Facebook friendship. With regard to traditional friendship, the court recognized it exists on a broad spectrum.  Id. at *4.  Some friendships are intimate, while some may exist between acquaintances.  “Thus the mere existence of a friendship, in and of itself, does not inherently reveal the degree or intensity of the friendship.” Id. Therefore, the court goes on to say, “[n]o reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that the judge and an attorney appearing before the judge are friends of an indeterminate nature.” Id.

The court applies this same reasoning to the context of a Facebook friendship. Like traditional friendship, Facebook friends fall on a broad spectrum of friendship. Id. at *6.  A Facebook friendship alone says nothing about the nature of the friendship between the parties and, because of that, no reasonably prudent person would fear that they would not receive a fair and impartial trial if their trial judge was Facebook friends with an attorney on the other side. Id. at *6-7.

While the Florida Supreme Court does recognize that there may be instances where friendship between a judge and an attorney appearing before the judge is a basis for a disqualification, they state that Florida case law unequivocally supports the notion that not every friendship is a basis for disqualification. Id. at *8. Therefore, the supreme court sees no reason for Facebook friendships to trigger an automatic disqualification of a judge, especially when so many Facebook friendships regularly involve strangers. Id.

A concurring opinion was filed in this case by Justice Labarga in order to “strongly urge judges not to participate in Facebook.” Id. at *9. “Facebook ‘friendships’ fall across a broad spectrum, from virtual stranger to close, personal friend. Because the relationships between judges and attorneys can fall anywhere on that spectrum, judges who elect to maintain Facebook “friendships” with attorneys who have any potential to appear before them are, quite simply, inviting problems. Id.

Justice Pariente wrote the opinion for the dissent and supports a rule requiring judges to recuse themselves if they are Facebook friends with an attorney appearing before them. Id. at *10. “This rule does little to limit the judge’s personal liberty, while advancing the integrity of the judicial branch as the one branch of government that is above politics.” Id.

The dissent takes issue with the majority’s equating traditional friendship to Facebook friendship. “The fact that both are called ‘friendship’ does not mean they are comparable or can be evaluated in the same manner.” Id. Additionally, the dissent points out that obtaining the information necessary for a party to bring a good faith motion for disqualification would likely require discovery, which is impractical and potentially an invasion of privacy. Id.

The existence of a Facebook ‘friendship’ may reveal far more information regarding the intimacy and the closeness of the relationship than the majority would assign it. For example, as the majority explains, once a person becomes ‘friends’ with another Facebook user, that person gains access to all of the personal information on the user’s profile page – including photographs, status updates, likes, dislikes, work information, school history, digital images, videos, content from other websites, and a host of other information – even when the user opts to make all of his or her information private to the general public.

Id.

The dissent concludes by saying that due to the indeterminate nature of a social media friendship between a judge and an attorney appearing before the judge and the potential for impropriety, social media friendships should not be allowed. Id. at *13. Accordingly, they would have overturned the lower court’s decision and approved the Fourth District Court of Appeal’s decision in Domville v. State. Id.

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