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(Just how ‘friendly’ can you and your favorite judge be?)
Canon 2B of the Florida Code of Judicial Conduct provides that a judge shall not “convey or permit others to convey the impression that they are in a special position to influence the judge.” In modern times, this has raised an interesting question with regard to a litigant, witness, or attorney who has a judge as a Facebook “friend.”
Late last year, in 2018, the Florida Supreme Court accepted jurisdiction to resolve two conflicting Florida District Court of Appeal decisions, thus providing its own guidance as to just how ‘friendly’ you and your favorite judge can be — and indeed, insights on what it even means to be a friend in the modern cyberworld.
(NOTE: The following appellate decision, as reproduced below, may have case headings, footnotes, some citations, and dissenting opinions omitted for brevity. The portions in bold-print are for those readers who wish to skim the most relevant passages. Always consult the full opinion, and always research the most current state of the law in your jurisdiction. )
LAW OFFICES OF HERSSEIN AND HERSSEIN, P.A., etc., et al., Petitioners, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Respondent. Supreme Court of Florida. Case No. SC17-1848. November 15, 2018. Application for Review of the Decision of the District Court of Appeal—Direct Conflict of Decisions. Third District – Case No. 3D17-1421 (Miami-Dade County). Counsel: Reuven T. Herssein of Herssein Law Group, North Miami; and Maury L. Udell of Beighley, Myrick, Udell & Lynne, P.A., Miami, for Petitioners. Suzanne Youmans Labrit, Frank A. Zacherl, and Amy M. Wessel of Shutts & Bowen, LLP, Tampa, for Respondent. Christina Paylan, St. Pete Beach, for Amicus Curiae Christina Paylan, M.D.
(CANADY, C.J.) In this case, we consider an issue regarding the legal sufficiency of a motion to disqualify a trial court judge on the basis of a Facebook “friendship.”
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. We therefore approve the decision of the Third District in Herssein and disapprove the decision of the Fourth District in Domville on the conflict issue. [Footnote omitted].
At the outset, the Third District cited authority from this Court and the First District Court of Appeal supporting the longstanding general principle of law that an allegation of mere friendship between a judge and a litigant or attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification. [Citations omitted.] The Third District noted that the Fourth District in Domville “held that recusal was required when a judge was a Facebook ‘friend’ with the prosecutor” based on “a 2009 Judicial Ethics Advisory Committee Opinion.” [Citation omitted.]
The Third District went on to explain that the Fifth District in Chace v. Loisel, 170 So. 3d 802 (Fla. 5th DCA 2014), subsequently “signaled disagreement” with Domville. [Citation omitted.] Chace expressed “serious reservations about the court’s rationale in Domville” in part because “[a] Facebook friendship does not necessarily signify the existence of a close relationship.” [Citation omitted.]
The Third District agreed with Chace on this point for three reasons. [Citation omitted.] “First, as the Kentucky Supreme Court noted, ‘some people have thousands of Facebook “friends.” ‘ ” [Citation omitted.] “Second, Facebook members often cannot recall every person they have accepted as ‘friends’ or who have accepted them as ‘friends.’ ” [Citation omitted.] And “[t]hird, many Facebook ‘friends’ are selected based upon Facebook’s data-mining technology [suggestions] rather than personal interactions.” [Citation omitted.] Thus the Third District concluded that “a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word [— i.e., a person attached to another person by feelings of affection or personal regard].” [Citation omitted.] The Third District further concluded that “[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.” [Citation omitted.]
The Third District ultimately “h[eld] that the mere fact that a judge is a Facebook ‘friend’ with a lawyer for a potential party or witness, without more, does not provide a basis for a well-grounded fear that the judge cannot be impartial or that the judge is under the influence of the Facebook ‘friend.’ ” [Citation omitted.]
In the traditional sense, a “friend” is a person attached to another person by feelings of affection or esteem. See, e.g., Webster’s Third New International Dictionary 911 (1993 ed.) (defining the term “friend” as “one that seeks the society or welfare of another whom he holds in affection, respect, or esteem”); The American Heritage Dictionary 703 (5th ed. 2011) (defining the term “friend” as “[a] person whom one knows, likes, and trusts”); Shorter Oxford English Dictionary 1035 (6th ed. 2007) (defining the term “friend” as “[a] person joined by affection and intimacy to another”).
But “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. See, e.g., 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”); Black’s Law Dictionary 600 (5th ed. 1979) (same); Black’s Law Dictionary 795 (4th ed. 1951) (same); see also Clark v. Campbell, 133 A. 166, 170 (N.H. 1926) (“Friendship is a word of broad and varied application.”). Thus the mere existence of a friendship, in and of itself, does not inherently reveal the degree or intensity of the friendship.
It follows 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. 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 friends of an indeterminate nature. It is for this reason that Florida courts — including this Court — have long recognized the general principle of law that an allegation of mere friendship between a judge and a litigant or attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification. See, e.g., MacKenzie, 565 So. 2d at 1338 (“There are countless factors which may cause some members of the community to think that a judge would be biased in favor of a litigant or counsel for a litigant, e.g., friendship, member of the same church or religious congregation, neighbors, former classmates or fraternity brothers. However, such allegations have been found legally insufficient when asserted in a motion for disqualification.”); Ervin v. Collins, 85 So. 2d 833, 833-34 (Fla. 1956) (allegations of friendship between three supreme court justices and the governor, who was a party, were “not sufficient to constitute a legal basis for disqualification”); Ball v. Yates, 29 So. 2d 729, 735 (Fla. 1946) (allegation of friendship between a supreme court justice and an attorney previously employed by the prevailing party was “in fact and in law . . . inadequate and insufficient in substance” for disqualification); see also Smith, 729 So. 2d at 946; Adkins v. Winkler, 592 So. 2d 357, 360-61 (Fla. 1st DCA 1992); Raybon v. Burnette, 135 So. 2d 228, 230-31 (Fla. 2d DCA 1961).2
With this legal framework in mind, we now turn to address the Facebook “friendship” issue.
Facebook was officially “launched on February 4, 2004.” Facebook, Inc. v. DLA Piper LLP (US), 23 N.Y.S.3d 173, 175 (N.Y. App. Div. 2015). Facebook is a social media and social networking service with approximately “1.79 billion active users.” [Citation omitted.] Facebook “permits registered users to do a host of things, among them: posting and reading comments, events, news, and, in general, communicating with . . . others.” [Citations omitted.]
Facebook provides users with several means of communicating with one another. Users can send private messages to one or more users. Users can also communicate by posting information to their Facebook “wall,” which is part of each user’s Profile Page. A Facebook “wall post” can include written comments, photographs, digital images, videos, and content from other websites. [Citations omitted.]
“Facebook users [primarily] create online profiles to share information about themselves with other Facebook users.” [Citation omitted.] “To create a profile, a person must go to www.facebook.com, enter his or her full name, birth date, and e-mail address, and register a password. Facebook then sends a confirmation link to the registered e-mail, which the person must click on to complete registration.” [Citation omitted.] “Thereafter, the profile may be accessed on any computer or mobile device by logging into Facebook’s website using the same e-mail address and password combination.” [Citation omitted.] “Once registered, a Facebook user can . . . customize her profile by adding personal information, photographs, or other content. A user can [also] establish connections with other Facebook users by ‘friending’ them; the connected users are thus called ‘friends.’” [Citations omitted.] (“A Facebook user can connect with other users by adding them as ‘Facebook friends.’ ”).
A Facebook user’s “friend” list appears on his profile page. [Citations omitted.] In order to “select” a Facebook “friend,” a user must either (1) send a Facebook “friend” request to another user to accept or (2) accept a Facebook “friend” request sent by another user; a Facebook “friendship” is officially established by the acceptance of a previously sent “friend” request. See Fla. JEAC Op. 2009-20 (Nov. 17, 2009).
We now come to the crux of the matter: what is the nature of Facebook “friendship?” “The word ‘friend’ on Facebook is a term of art.” [Citation omitted.]
The establishment of a Facebook “friendship” does not objectively signal the existence of the affection and esteem involved in a traditional “friendship.” 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.” [Citations omitted.] (“Over a billion people use Facebook and connect with other users as ‘friends.’ Some may be friends in the traditional sense, but others are no more than acquaintances or contacts or in some cases may even be complete strangers.”) [Citation omitted.] (noting that “one can be [Facebook] ‘friends’ with people known to them, with strangers, with celebrities, with animals, and even with inanimate objects”).
So it is regularly the case that Facebook “friendships” are more casual and less permanent than traditional friendships. [Citation omitted.] (“[It is] no secret that the ‘friend’ label means less in cyberspace than it does in the neighborhood, or in the workplace, or on the schoolyard, or anywhere else that humans interact as real people.”); [Citation omitted.] (“Indeed, ‘friendships’ on Facebook may be as fleeting as the flick of a delete button.”)
In short, the mere fact that a Facebook “friendship” exists provides no significant information about the nature of any relationship between the Facebook “friends.” Therefore, the mere existence of a Facebook “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. 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.
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.
We approve Herssein and disapprove Domville.
It is so ordered. (POLSTON, LABARGA, and LAWSON, JJ., concur. LABARGA, J., concurs with an opinion. PARIENTE, J., dissents with an opinion, in which LEWIS and QUINCE, JJ., concur.)
James Hope is a Florida Bar Board Certified Criminal Trial Lawyer who has been practicing criminal law in Tavares, Florida, since 1987. He has also been the Publisher and Executive Editor of Lake Legal News since 2009. He may be contacted at LakeLegalNews@gmail.com, or through his website at www.AttorneyJamesHope.com. [PHOTO CREDIT: Bonnie Whicher]