Matt Higgins, Associate Member, University of Cincinnati Law Review
On November 15, 2018, the Florida Supreme Court held that a Facebook friendship between a judge and an attorney was not, on its own, legally sufficient grounds for disqualification.[1]The court reached this conclusion by determining that “a Facebook friendship does not necessarily signify the existence of a close relationship.”[2]This is because: (1) people may have thousands of Facebook friends; (2)Facebook users can often not recall who they have accepted as friends; and (3)a social media friend may be selected based on suggestions rather than personal interactions.[3] In sum, the court determined that a Facebook friend was not a “friend in the traditional sense of the word.”[4]While it may not be grounds for disqualification, judges should still be strongly discouraged from accepting or requesting a Facebook friendship withattorneys in their respective jurisdictions.
The Florida Supreme Court relied on a long-standing principle of law in Floridacourts that an allegation of mere friendship between a judge and a litigantappearing before the judge, standing alone, is not a legally sufficient basisfor disqualification.[5]The court then expanded upon that notion by reasoning that a Facebookfriendship is different from a traditional friendship. It reasoned that if atraditional friendship varies in degrees of intimacy to casual acquaintance, aFacebook friendship varies even wider in degree from “virtual stranger” to“complete stranger.”[6]Therefore, Facebook friendships are more casual and less permanent thantraditional friendships, meaning the existence of a Facebook friendshipprovides no significant information about the nature of a relationship.[7]
To rise to the level of potential prejudice or bias necessary for disqualification, more than just a Facebook friendship needs to be present.[8]
The dissent, obviously, disagreed. It recommended a strict rule requiring judges to recuse themselves whenever an attorney who appears before them is a Facebook friend.[9] It balanced the judge’s personal liberty against the integrity of the judicial branch; ultimately determining the integrity of the judicial branch outweighed the slight limit such a rule would impose on a judge’s personal liberty.[10] Also, a Facebook friendship with an attorney creates the appearance of impropriety because of the public nature of a Facebook friendship.[11] Because Judges should avoid any appearance of impropriety, the dissent advocates for a strict rule against such relationships.[12]
The concurrence is persuasive and should be adopted by other jurisdictions facing a similar ethical dilemma. In sum, the concurrence agreed with the majority but strongly urged judges to not participate in Facebook.[13] The risks associated with judges joining Facebook are numerous and may seriously undermine confidence in the judicial system.[14] While a bright-line disqualification rule is not necessary, ethical committees and higher courts should encourage judges to steer clear of social media friendships or carefully review who they friend on social media sites.[15]
The key takeaway from the Florida decision is that jurisdictions are adapting tothe changes social media has had on society. While a Facebook friendship shouldnot, by itself, be legally sufficient grounds for disqualification of a judge,it is still fraught with risk. As a trusted member of the judiciary, judgesshould be wise enough to limit social media use to pages which can be followedfor campaign usage or used primarily as a means to stay in touch with “real”friends or family members.
[1] Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Association, 2018 WL 5994243, at *1 (Fla. Nov. 15, 2018).
[2] Id. at *2 (quoting Chace v. Louisel, 170 So. 3d 802 (Fla. 5th DCA 2014).
[3] Id. (citing Sluss v. Commonwealth, 381 S.W.3d 215, 222 (Ky. 2012).
[4] Id. (citing Sluss at 412).
[5] Herssein & Herssein at *4.
[6] Id. at *6.
[7] Id. at *6-7.
[8] Id. at *8.
[9] Id. at *9.
[10] Id. at *10.
[11] Id. at *11.
[12] Id.
[13] Id. at *9.
[14] Id.
[15]Id.
