Status as Facebook Friend Not Per Se Basis to Disqualify Judge
The Bencher—May/June 2019
By Francis G.X. Pileggi, Esquire
A divided Florida Supreme Court recently ruled that a trial judge who is a Facebook “friend” with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification. In the case of Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Association, 2018 WL 5994243 (Fla. Nov. 15, 2018), the court cited a majority of the cases that have considered the issue in support of its conclusion and declined to follow a minority of cases and ethics committee opinions that reached a different result.
This column highlights the court’s opinion and does not attempt a comprehensive review of this topic, although the highlighted opinion surveys cases around the country that have addressed the issue, as well as referencing commentary and other sources.
The narrow issue addressed was whether a motion to disqualify should be granted on the sole basis that an attorney appearing before a trial judge is listed as a “friend” on the personal Facebook page of the trial judge. A Florida intermediate appellate court framed the issue as “whether a reasonably prudent person would fear that he or she could get a fair and impartial trial because the judge is a Facebook friend of a lawyer who represents a potential witness or a party to the lawsuit.”
Legal Standard for Disqualification
The court began its analysis with a recitation of the general legal standard for disqualification of a judge in Florida. The applicable statute in Florida requires a good faith allegation that a person would “not receive a fair trial on account of the prejudice of the judge.” The purpose of the disqualification statute is designed to keep the courts free from bias and prejudice as well as to ensure confidence in the judicial system—but also to prevent the disqualification process from being abused or used for some other reason not related to providing for the fairness and impartiality of the proceeding.
The court referred to several dictionary definitions of the term “friend” and observed that, as commonly understood, friendship exists on a broad spectrum. Some friendships are close and others are not.
Under Florida law, the general rule is that 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. And, in Florida, an allegation of mere friendship between a judge and a litigant or attorney, standing alone, does not constitute a legally sufficient basis for disqualification. Likewise, Florida cases have found that membership in the same church or status as a neighbor or former classmate are not per se legally sufficient reasons to disqualify a trial judge.
The court reviewed the history of Facebook, which was launched in 2004 as a social media and social networking service. Some sources estimate that Facebook currently has over 2 billion active users. The court discussed the procedure for becoming a “friend” on Facebook and acknowledged that a Facebook “friend” may or may not be a “friend” in the traditional sense of the word. A Facebook “friendship” could range from intimacy to a complete stranger, and it is possible to be a Facebook “friend” with animals and even with inanimate objects.
Relying on a majority of the court decisions and opinions of state ethics panels that have addressed the issue, the court held that “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.”
The court recognized the factually intensive nature of its holding and that in some circumstances the specifics of a friendship between a judge and a litigant, lawyer, or other person involved in a case may require disqualification of the judge. The limited conclusion in this case clarified that not every relationship characterized as a friendship provides a basis for disqualification, and there is no reason that a Facebook “friendship”—which could involve strangers—should be singled out for a per se disqualification. This case featured a concurring opinion that strongly urged judges not to participate in Facebook at all. A vigorous dissent urged the view that having a lawyer as a Facebook “friend” undermines confidence in the neutrality of a judge and warrants recusal by a judge in order to avoid the appearance that a party would not receive a fair and impartial trial.
Francis G.X. Pileggi, Esquire, is a litigation partner at Eckert Seamans Cherin & Mellott, LLC, in Wilmington, Delaware. He comments on key corporate and commercial decisions and legal ethics rulings at www.delawarelitigation.com.