Standing alone:  Facebook friendship and disqualification

In the first decision on the issue by any state supreme court, the Florida Supreme Court held that, standing alone, a judge’s Facebook “friendship” with an attorney appearing in a case did not disqualify the judge.  Law Offices of Herssein and Herssein v. United Services Automobile Association (Florida Supreme Court November 15, 2018).

The Court began with the “general principal” that a traditional friendship between a judge and an attorney, standing alone, did not require disqualification, noting that traditional friendship “varies in degree from greatest intimacy to casual acquaintance.”  Facebook friendship, the Court found, “exists on an even broader spectrum,” varying “in degree from greatest intimacy to ‘virtual stranger’ or ‘complete stranger.’”

Therefore, the Court held, disqualification was not required:  no reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on a judge’s Facebook friendship with an attorney that “in and of itself,” provided “no significant information about the nature” of their relationship, indicated only “a relationship of an indeterminate nature” without revealing “the degree or intensity of the relationship,” and did not “signal the existence of a traditional ‘friendship’” much less “a close or intimate relationship.”

The Court disagreed with the reasoning of Florida Advisory Opinion 2009-20, which stated that a judge may not be friends on Facebook with lawyers who may appear before the judge.  (The advisory opinion itself does not mention disqualification or the appearance of partiality.)  That opinion explained that, because a judge’s Facebook friends may see who the judge’s other Facebook friends are, the judge’s selection of some attorneys as friends on Facebook and rejection of others and communication of those choices conveys, or permits others to convey, the impression that they are in a special position to influence the judge, violating the code of judicial conduct.

Citing advisory opinions from other states and noting that the Florida committee’s position was clearly the minority position, the Court stated that focusing on the public nature of Facebook friendship was “unwarranted.”  The Court explained that even “traditional ‘friendship’ involves a ‘selection and communication process,’ albeit one less formalized than the Facebook process,” as people “traditionally ‘select’ their friends by choosing to associate with them to the exclusion of others” and “traditionally ‘communicate’ the existence of their friendships by choosing to spend time with their friends in public, introducing their friends to others, or interacting with them in other ways that have a public dimension.”

The Court did not discuss whether a judge should disclose a Facebook friendship with an attorney in a case under the comment to Canon 3B of the Florida code of judicial conduct that “[a] judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.”  Cf., Comment 5, Rule 2.11 ABA Model Code of Judicial Conduct (2007) (“A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification”).

In a concurring opinion, 1 justice “strongly urge[d] judges not to participate in Facebook” and encouraged new judges who have existing Facebook accounts to deactivate them.  The concurring justice argued that “judges must avoid situations that could suggest or imply that a ruling is based upon anything” other than the facts and the law even if, as he agreed with the majority, “’friendship’ on Facebook, without more, does not create a legally sufficient basis for disqualification.”  Recognizing that Facebook may be the primary way some judges “stay in touch with family members, actual friends, or people with whom they have reconnected after many years,” the concurring justice suggested that, “at the very least,” judges should carefully “limit their ‘friendships’ to cover only such individuals.”

In a dissent, 1 justice argued that, when the differences between Facebook “friendships” and traditional friendships “are taken into account,” “it is clear that judges’ Facebook ‘friendships’ with attorneys who appear in their courtrooms can easily cause an appearance of impropriety.”  The dissenting justice explained that, contrary to the premise of the majority, “equating friendships in the real world with friendships in cyberspace is a false equivalency.”

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. . . .  Additionally, the ease of access to the “friend’s” information allows Facebook “friends” to be privy to considerably more information, including potentially personal information, on an almost daily basis.

The dissenting justice emphasized that she was not attacking “the responsible use of social media.”  The dissent noted that the Court, The Florida Bar, and many other groups have public Facebook pages that “disseminate information and enhance the role of judges, lawyers, and the judiciary in the public domain” but only allow individuals to “follow” the pages, not become Facebook friends.  The dissent suggested that judges should adopt that model to eliminate the appearance of impropriety caused by the “self-selection” friending process.

Further, the dissent argued, the majority’s standard forced a litigant to engage in “impractical and potentially invasive” discovery “to determine with whom the judge has connected, with whom the judge has declined to connect, and what type of communication the judge engages in” on Facebook, LinkedIn, Instagram, and other sites to determine if there was something more than a mere Facebook “friendship” that could justify filing a motion for recusal.  The dissent urged the Court to “at least adopt parameters for judges to follow when engaging with social media.”  The dissent noted factors listed by a California advisory opinion for a judge to use in determining whether to friend an attorney:  the nature of the judge’s social networking site; the number of “friends” on the judge’s page; the judge’s practice in determining whom to include; and how regularly the attorney appears before the judge.  California Judges’ Association Advisory Opinion 66 (2010).

As the dissent suggests, when disqualification is not automatically required, as the majority held, a judge must still consider whether a Facebook friendship with an attorney — alone or in combination with other factors — raises a reasonable question about the judge’s impartiality whenever the friend appears in a case.  The relevant factors can be extrapolated from opinions regarding disqualification based on a traditional friendship and the list of factors in the California advisory opinion referenced by the dissent.  The list of factors for determining whether there is “something more” than a mere Facebook friendship that requires disqualification include:

  • The frequency of the judge’s social media contacts and communications with the attorney;
  • The substance of the judge’s social media contacts and communications with the attorney;
  • The scope of the social media friendship;
  • The nature of the judge’s social networking page (for example, whether it is more personal or professional);
  • The number of “friends” the judge has on the page;
  • The judge’s practice in deciding whom to “friend” (in other words, whether the judge is very exclusive or more inclusive when deciding whom to add); and
  • Whether the judge and the attorney have frequent, personal contacts in real life as well as on-line.

Thus, for example, a judge’s impartiality is more likely to be reasonably questioned and disqualification is more likely to be required when an attorney/Facebook friend appears in a case if the judge’s Facebook account primarily has posts about personal activities, or if his Facebook friends are mainly his family and close, personal friends, or if he is very selective when adding to his friend list, or if the judge and the attorney comment on each other’s posts, or if the judge and the attorney and their families also socialize in real life.  In contrast, a judge’s impartiality is not likely to be questioned and disqualification is not likely to be required when that friend appears in a case if the judge’s Facebook account is focused more on court business and the judge’s professional activities, if the judge has many friends on the page, if those friends are primarily professional acquaintances, if the judge allows everyone to follow him, and if the judge and the attorney only interact in court or at bar meetings.

 

 

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