An unattributed "common English phrase" has been repeatedly applied to progress: "Just because you can doesn't mean you should." It came to mind last week while considering the potential presented for judges by the Florida Supreme Court in Herssein and Herssein v. United Services Automobile Association, SC17-1848 (Fla. 2018). It is a long-awaited exposition regarding the impact of social media on trial judges. It changes a broad proscription regarding Facebook and illustrates the seemingly leisurely pace of legal processes.
The case began when the Herssein law firm sought to have the presiding trial judge disqualified from hearing the case. The litigation was about contractual rights and obligations between the law firm and the insurance company, a former client. The dispute involved the two entities parting ways, and an executive of the insurance company was alleged to potentially be a witness, a defendant, or both. Therefore, USAA hired an attorney named Israel Reyes to represent this executive.
The Herssien firm moved on June 8, 2017, to disqualify the trial judge. Two attorneys from the Herssien firm submitted "affidavits in which they swore," “[b]ecause [the trial judge] is Facebook friends with Reyes, [the executive's] personal attorney," the Herssein firm believed that it could not receive "a fair and impartial trial," and that Mr. Reyes had "influenced the trial judge." The trial judge denied the motion, despite there being arguably one "Facebook" appellate decision supporting disqualification. The Herssien firm sought review by the Third District Court of Appeal.
The Third District Court rendered its decision rapidly, on August 23, 2017, concluding that a judge and lawyer being "friends" on Facebook did not mandate disqualification. The Court noted that “allegations of mere ‘friendship’ with an attorney or an interested party have been deemed insufficient to disqualify a judge,” citing a 1998 decision of the First District Court of Appeal, and a Florida Supreme Court decision in 1990 (both before the 2004 launch of Facebook, and the beginning of other social media platforms). MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332, 1338 (Fla. 1990); Smith v. Santa Rosa Island Auth., 729 So. 2d 944, 946 (Fla. 1st DCA 1998).
The Third DCA recognized that its decision was potentially in conflict with a decision of the Fourth District in Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012). The Court in Domville "held that recusal was required when a judge was a Facebook 'friend' with the prosecutor." The Third DCA in Herssien noted the Domville outcome was based in part on an opinion of the Judicial Ethics Advisory Committee, Opinion. Fla. JEAC Op. 2009–20 (Nov. 17, 2009). That committee decision concluded that it was inappropriate for judges to "friend" lawyers or for lawyers to "friend" judges. The Committee concluded that a judge seeking or accepting such a "friend" request or connection "violates Cannon 2B (Code of Judicial Conduct), because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.” On the basis of that opinion, Facebook has been antithetical to Florida judges for most of its existence.
However, the Third District also referenced a decision of the Fifth District, which compelled disqualification on the basis of ex parte communication, which happened to be a "friend" request from the judge to a party in litigation. The Fifth DCA decision was therefore founded upon the communication itself more than the mode (Facebook was the mode chosen, but an email, text, or greeting card would have caused a similar result). The Court commented, however, on the Facebook term "Friend," noting that "A Facebook friendship does not necessarily signify the existence of a close relationship." The Fifth DCA was critical of the Domville holding, noting that its "logic would require disqualification in cases involving an acquaintance of a judge."
Thus, the issue came to the Supreme Court in Herssein with various conflicting precedents. The Third District clearly finds being a Facebook "Friend" insufficient in itself to compel disqualification, a view seemingly shared by the First District (though in an actual, real-life "friend" as opposed to Facebook "friend" setting, which analysis was seemingly also favored by the Fifth DCA. Contrarily, the Fourth DCA in Domville had concluded that "friend" was enough to compel disqualification, based on the interpretations of a committee of lawyers and judges on the JEAC.
The Supreme Court accepted jurisdiction in an order of December 11, 2017. The parties filed briefs outlining their arguments and authorities, and an oral argument was held on June 8, 2018. On November 15, 2018, the Florida Supreme Court rendered its decision in Herssein, written by Chief Justice Canady. Justice Labarga wrote a concurring opinion. Justice Pariente dissented, joined by Justices Quince and Lewis. The Court concluded that because "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."
The Supreme Court acknowledged the prior decisions of that Court and the First DCA regarding “allegations of mere ‘friendship.’" It then discussed the "traditional" definition of "friend," noting that "some friendships are close and others are not." Thus, the Court reasoned again that the "mere friendship" is insufficient to compel disqualification, citing MacKenzie. The Court provides an overview then of what Facebook is and how the platform works. And then the Court reaches "the crux of the matter: what is the nature of Facebook 'friendship?'”
The Court explained that a "Facebook 'friend'” may or may not be a “friend” in the traditional sense of the word." The "Facebook 'friendship' does not objectively signal the existence of the affection and esteem involved in a traditional 'friendship.'” The Court noted that "it is regularly the case that Facebook 'friendships' are more casual and less permanent than traditional friendships." Thus, the 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."
The Court therefore concluded 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." That conclusion, according to the Court, is consistent with the majority of states that have addressed this Facebook question. It is worthy of note that it is possible that one might be unfamiliar with Facebook entirely, and upon that lack of foundation what is or is not reasonable could perhaps change?
Justice Labarga agreed with the decision, but wrote in concurring "to strongly urge judges not to participate in Facebook." He agreed with the dissent that "participation in Facebook by members of the judiciary 'is fraught with risk that could undermine confidence in the judge’s ability to be a neutral arbiter.'” Thus, he concluded that "judges who elect to maintain Facebook “friendships” with attorneys who have any potential to appear before them are, quite simply, inviting problems." It is this concurrence that led me to recall "just because you can doesn't mean you should," and to thus title this post so.
The dissent found more persuasive the logic of Domville and the JEAC. Because of the "fraught with risk" conclusion, the dissent urged instead the adoption of "a strict rule requiring judges to recuse themselves whenever an attorney with whom they are Facebook 'friends' appears before them." The dissent concludes that this would do "little to limit the judge’s personal liberty while advancing the integrity of the judicial branch." The dissent is focused upon the perceptions and conclusions, informed or not, of the person learning of the "friendship." And, there is a discussion of what effort might be involved in discovering or substantiating the actual nature of a relationship between a judge and counsel or party.
The dissent also concludes that the trial judge in the Third District, when the Motion to Disqualify was filed, should have granted the motion because "the only binding opinion was the Fourth District’s in Domville." The dissent concludes that "the trial judge was required to follow that opinion" regarding Facebook, citing Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992). However, that conclusion ignores that both the Florida Supreme Court and the Florida First District had previously concluded that "mere friendship" is not sufficient grounds, MacKenzie and Smith. Though not specifically "Facebook friendship," conflicting friendship decisions nonetheless. Arguably, therefore, the trial judge in Herssien was not faced with "binding authority" in the guise of Domville, but in fact, was faced with the very "interdistrict conflict" recognized and explained by the Florida Supreme Court in Pardo. Some may struggle with the dissent's seemingly absolute analysis to the contrary.
The ultimate result of Herssien will likely remain unclear for some time. There are a number of judges that have eschewed Facebook and other social media because of the JEAC opinion and the analysis of Domville. Thus, the potential for appearances noted by the dissent may currently be few. It is possible that judges will now flock to Facebook, despite the fact that some perceive Americans in general are abandoning the platform. Or it is possible that judges will find neither encouragement nor motivation in Herssien, will not join, and there will be no recurrence of the "Facebook friend" dispute upon which to build further analysis. In effect, just because judges now can, it is possible they will instead heed the concurrence and simply will not, or if they do they will engage with family and neither seek nor accept friend requests from attorneys.
Ultimately, it is likely that as Facebook evolves into the next MySpace, the next social media analysis for judges will likely involve the "next big thing," as opposed to Facebook.
Ultimately, it is likely that as Facebook evolves into the next MySpace, the next social media analysis for judges will likely involve the "next big thing," as opposed to Facebook.
