On November 15, 2018, the Florida Supreme Court finally resolved a conflict among Florida lower courts on the issue of whether Facebook “friendship” is a sufficient basis for judicial disqualification. See Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Assoc’n, No. SC17-1848 (Fl. Nov. 15, 2018). Said the Florida Supreme Court: “We hold 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.” Id. at 2.
The Conflicting Opinions
In 2012, a Florida appellate court ruled that having a lawyer as a Facebook friends undermines “confidence in the judge’s neutrality” and gives rise to a “well-founded fear of not receiving a fair an impartial trial.” See Domville v. State, 103 So. 3d 184, 186 (Fla. Ct. App. 4th Dist. 2012). Subsequent opinions, however, expressed skepticism. In Chance v. Loisel, No. 5D13-4449 (Fla. Ct. App. 5th Dist. 2014), another Florida court noted that:
We have serious reservations about the court’s rationale in Domville. The word “friend” on Facebook is a term of art. A number of words or phrases could more aptly describe the concept, including acquaintance and, sometimes, virtual stranger. A Facebook friendship does not necessarily signify the existence of a close relationship. Other than the public nature of the internet, there is no difference between a Facebook “friend” and any other friendship a judge might have. Domville’s logic would require disqualification in cases involving an acquaintance of a judge. Particularly in smaller counties, where everyone in the legal community knows each other, this requirement is unworkable and unnecessary. Requiring disqualification in such cases does not reflect the true nature of a Facebook friendship and casts a large net in an effort to catch a minnow.
Likewise, yet another Florida appellate court ruled that a district judge may preside over a civil action even though she is Facebook friends with a lawyer appearing before her. See Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Ass’n, No. 3D17-1421 (Fl. Ct. App. 3d Dist. 2017). Noting that that Facebook contacts often are not equivalent to real-life friends, the court found that no “reasonably prudent person would fear that he or she could not get a fair and impartial trial because the judge is a Facebook friend with a lawyer who represents a potential witness and party to the lawsuit.” On the contrary, “[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 court noted the following three reasons for its holding:
- Some people have thousands of Facebook friends, which reflects how distant many Facebook relationships truly are.
- Facebook members often don’t even know who their friends are.
- Friendships formed by Facebook’s “data mining and networking algorithms” is a product of an “astounding development in applied mathematics.” But while these algorithms are powerful tools “to build personal and professional networks,” they have “nothing to do with close or intimate friendships of the sort that would require recusal.” Id. at 8-9.
Let’s Be Friends
Thankfully, the Florida Supreme put a stop to this silly debate in Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Assoc’n, No. SC17-1848 (Fl. Nov. 15, 2018).
Who and what is a “friend?” Well, said the court, it depends: Friendship in “the traditional sense of the word does not necessarily signify a close relationship. It is commonly understood that friendship exists on a broad spectrum: some friendships are close and others are not.” Id. at 8 (citing Black’s Law Dictionary 667 (6th ed. 1990) (defining the term “friend” as “[v]arying in degree from greatest intimacy to acquaintance more or less casual”)). Because the “mere existence of a friendship between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship,” an allegation of “mere friendship” does not constitute “a legally sufficient basis for disqualification.” Id. at 9.
And so it is with Facebook friendship. In addressing the question “what is the nature of Facebook ‘friendship?’,” the court recognized that such relationships could be more intimate or far less intimate than traditional friendships:
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.”
Id. at 13. Because “the mere existence of a Facebook ‘friendship,’ in and of itself, does not inherently reveal the degree or intensity of the relationship between the Facebook ‘friends,'” no “reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are Facebook ‘friends’ with a relationship of an indeterminate nature.” Id. at 15-16. For this reason, “Facebook ‘friendships’—which regularly involve strangers—should [not] be singled out and subjected to a per se rule of disqualification.” Id. at 20.1
A well-reasoned and sensible holding.
- The court noted that its holding was consistent with the “clear majority” of ethics opinions on the issue. Id. at 16 (citing Ariz. JEAC Op. 14-01, at 4 (Aug. 5, 2014); Ky. Jud. Ethics Comm. Op. JE-119, at 2-3 (Jan. 20, 2010); Md. Jud. Ethics Comm. Op. 2012-07, at 5 (June 12, 2012); Mo. Ret., Removal, & Discipline Comm’n Op. 186, at 1 (Apr. 24, 2015); N.M. Jud. Conduct Adv. Comm. Op. Concerning Soc. Media, at 13-14 (Feb. 15, 2016); N.Y. JEAC Op. 13-39 (May 28, 2013); Ohio Bd. of Comm’rs on Grievances & Discipline Op. 2010-7, at 1-2, 8-9 (Dec. 3, 2010); Utah JEAC Op. 12-01, at 4-7 (Aug. 31, 2012). ↵