Wednesday, September 13, 2017
Finally, a realistic understanding of what the word “friend” means in the social media world. In a decision handed down this week, the Florida Third District Court of Appeal, in a unanimous opinion, held that a Miami judge did not need to recuse herself because one of the attorneys involved in a case in her court is a Facebook “friend.”
Court Rulings of “Friends”
The basis of the dispute goes back to a 2009 ruling by Florida’s Judicial Ethics Advisory Committee which said that judges should be prohibited from having anyone appear before them who is a Facebook friend. Numerous commentators since then have noted that this prohibition misunderstands the meaning of “friend” in the Facebook universe. However, the Palm Beach appeals court ruled in 2012 that a judge had to disqualify himself because he was Facebook friends with the prosecutor on a criminal case.
Then, just to further muddy the waters, the Judicial Ethics Advisory Committee later went on to say it is acceptable for judicial candidates to “friend” attorneys if they are using social media to campaign for elected office. And not to be outdone in water muddying, the Florida state attorney’s office then cautioned prosecutors “to be mindful” about their Facebook relationships with judges in front of whom they appear.
When is a Friend Really a Friend?
The current case, Law Offices of Herssein and Herssein vs. United Services Automobile Association, arose when Miami firm Herssein and Herssein sued a client, the United Services Automobile Association. The case was assigned to Circuit Judge Beatrice Butchko, and former Miami-Dade circuit judge Israel Reyes was hired to represent one of the USAA executives. The plaintiffs then asked Judge Butchko to recuse herself because she was Facebook friends with Reyes, saying they had a “well-grounded fear of not receiving a fair and impartial trial.” When she declined, they appealed.
The unanimous opinion, written by Judge Thomas Logue, was quite direct in rejecting the argument, noting that some Facebook users have hundreds of “friends,” some of whom they may not even remember accepting as “friends.” He continued that, “Electronic social media is evolving at an exponential rate. Acceptance as a Facebook ‘friend’ may well once have given the impression of close friendship and affiliation. Currently, however, the degree of intimacy among Facebook ‘friends’ varies greatly.”
Logue went on to point out that Facebook algorithms and sophisticated data mining techniques mean that people often accept friend requests from other people they barely know, or have met entirely in a professional setting. So, the standard, at least in Miami for now, is the degree of contact, and whether the “friendship” is of a nature that would lead to a reasonable belief of lack of impartiality. In other words, it is the long standing “impropriety or appearance of impropriety” standard that is commonly used for evaluating judicial conduct.
Of course, the dispute will continue. The plaintiffs have asked for an en banc hearing on the ruling against them; given the Palm Beach decision, it likely the issue will eventually end up in front of the Florida Supreme Court. That is unless the Judicial Ethics Advisory Committee or the Florida Bar itself steps in and rewrites the rule.
About Tom O’Connor
Tom O’Connor is nationally known as a consultant, speaker, and writer. In his consulting work, Tom specializes in working with law firms and their corporate clients to manage their electronic discovery needs. Tom’s consulting experience is primarily in complex litigation matters where he has worked on several major cases, most recently the BP litigation. He has also been appointed as a technical consultant by various federal and state courts on cases dealing with large amounts of electronic evidence and specializes in negotiating ESI exchange protocols. Tom speaks at major legal conferences and writes for both the Advanced Discovery blog and national legal publications.