Friday, December 14, 2018

Florida Supreme Court: there is no reason to treat "Facebook friendships" differently when it comes to disqualifying judges

Almost a year ago, I wrote that the Florida Supreme Court was considering the question of whether a judge should be disqualified from presiding over a case because he or she was a "Facebook friend" of one of the lawyers.  In my post I argued that whether the relationship between a lawyer and a judge is so close as to call the judge’s impartiality into question should be decided on a case by case basis.  I agreed with my friend and colleague Ray McKoski who had written an article in which he argued that imposing a per se rule would be an overreaction given the fact that judges preside over lawyers who they know and are friends with outside of Facebook. As he correctly stated, there is no rule that automatically bars a lawyer from appearing before a judge when the two share an actual friendship.

Well, now we have the official answer to the question from the Florida Supreme Court.  Last month, the Court released its long awaited decision, holding that
In some circumstances, the relationship between a judge and a litigant, lawyer, or other person involved in a case will be a basis for disqualification of the judge. Particular 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. 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. 
The case is called Law Offices of Herssein & Herssein v United Services Automobile Association.  You can read the opinion here.

It seems to me the opinion reaches the correct result, and what it surprising is that the decision was actually 4 to 3.  The position of the dissenting judges was that "a judge’s involvement with social media is fraught with risk that could undermine confidence in the judge’s ability to be a neutral arbiter. . . . I would adopt a strict rule requiring judges to recuse themselves whenever an attorney with whom they are Facebook “friends” appears before them. 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."

Yet, it is not clear how the fact the friendship originates in Facebook makes it so different from an actual old fashioned "personal" friendship that we need a strict rule.

For more commentary on the opinion go to:

Ethical Grounds

Faughnan on Ethics

The ABA Journal



Lawyer Ethics Alert Blog

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