Face-Off on Facebook: Judges and Lawyers as Social Media 'Friends' in a Post-Herssein World.

Author:Artigliere, Ralph

Should a judge be disqualified from a case based solely on a Facebook friendship with one of the attorneys? The Florida Supreme Court recently answered the question in the negative in Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto. Ass'n, Case No. SC17-1848, 2018 Fla. LEXIS 2209 (Fla. Nov. 15, 2018), when it held that "an allegation that a trial judge is a Facebook 'friend' with an attorney appearing before the judge, standing alone, is not a legally sufficient basis for disqualification." (1) The decision brings Florida in line with the majority view in other states that "have adopted an attitude of, 'it's fine for judges to be on social media, but proceed with caution.'" (2) However, the opinion's implications are multifaceted for Florida judges and the lawyers who appear before them.

The Scope and Impact of the Herssein Decision

Determining the legal significance of a social media relationship between trial judges and lawyers is not easily susceptible to a bright line or per se analysis. (3) Moreover, the Herssein ruling is based upon a narrow record and only addresses whether a Facebook friendship between a trial judge and a lawyer appearing before the judge, standing alone, would merit an automatic disqualification.

The court did not analyze the extent or nature of the Facebook friendship between the trial judge and attorney because there were no record facts detailing the scope of Facebook activities between the trial judge and attorney. In other words, the court did not have a record disclosing their respective number of Facebook friends, the type and quality of their postings, likes, comments, shares, messages, or other activity. On this record, the court addressed only the narrow issue of whether the existence of a Facebook friendship, without more, mandates disqualification of a trial court judge. (4)

Still, there are important ramifications of the court's holding and its conclusion that "there is no reason that Facebook 'friendships'--which regularly involve strangers ---should be singled out and subjected to a per se rule of disqualification." (5) An adversary's Facebook relationship with the judge might require disqualification, but it will depend on the extent of the "friendship" between the trial judge and attorney. And, as noted in the Herssein dissent, the court's ruling may make it hard for parties to challenge social media relationships between their assigned trial judge and opposing lawyers "because it is difficult and intrusive for a litigant to determine with whom the judge has connected, with whom the judge has declined to connect, and what type of communication the judge engages in on these [social media] platforms." (6)

Traditional Standards for Reasonable Basis for a Motion to Disqualify

The Herssein court begins its analysis with the premise that Florida courts and the Florida Supreme 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." (7) The reasonableness of a litigant's belief, therefore, depends on something more than mere friendship. Indeed, the court noted that "'friendship' in the traditional sense of the word does not necessarily signify a close relationship." (8) Turning its attention to Facebook "friends," the court similarly holds that something more than a mere online social media connection is required to establish a reasonable basis for disqualification. This is in line with "the majority of state judicial discipline bodies and judicial ethics advisory committees...." (9)

The court's decision diverges from Florida Judicial Ethics Advisory Committee (JEAC) opinions that a judge's selection of Facebook friends necessarily "conveys or permits others to convey the impression that they are in a special position to influence the judge" in violation of Canon 2(B) of the Florida Code of Judicial Conduct. (10) The Herssein dissent disagrees with the majority's comparison of Facebook to traditional friendships (11) and expresses the view that a Facebook friendship could undermine a litigant's confidence in the ability of the trial judge to be impartial. (12)

However, the Herssein court is not saying that all social media relationships are permissible. (13) Like traditional friendships, the quality, quantity, and nature of the friendship may give rise to legitimate concerns about the fairness of the judge. The majority concludes that traditional friendship, Facebook friendship, or some other social media or analog relationship may present circumstances requiring disqualification. Standing alone, those relationships do not. (14) The devil is clearly in the details. So how do the bench and bar conduct themselves online in a manner that protects litigants and preserves the public confidence in our judicial system while allowing judges and lawyers to avail themselves of the utility of social media? What special challenges does the social media revolution create for lawyers and judges? Can the court system, the judicial canons, and rules of professional conduct evolve in a manner that permits lawyers and judges to fully engage in today's digital social and business landscape?

The Social Media Explosion

Social media, like many evolving communication methods involving technology and the internet, defies specific definition, but it may be basically and broadly described as "[i]nternet applications which permit individuals or organizations to interactively share and communicate." (15) Social media is playing an exponentially increasing role in our lives and now pervades society. In a single internet minute, there are 973,000 Facebook logins, 4.3 million YouTube videos viewed, 481,000 tweets, and 2.4 million snaps created. In a month, there are more than 42 billion Facebook logins. (16) Facebook has succeeded in connecting users by shared likes, dislikes, concerns, and even cultural prejudices and biases. Social media has quickly become a valuable, if not essential, tool for individuals, businesses, politicians, and governmental entities, including Florida's court system. (17)

In fact, use of social media in Florida courts is on the rise, (18) and the Florida court system has published guidelines for the use of social media by judges and courts. (19) Judges are encouraged to use social media to engage the public and convey information. The official Twitter account of The Florida Bar (@TheFlaBar) covers bar association news and other interesting topics and garnered recognition from the ABA as one of the "Best Legal Twitter Accounts" in 2018. (20) Despite this encouragement, many judges are reluctant to dip their toes into the social media waters for fear of what lurks below.

Nonetheless, as millions turn to social media for information and connections with others, using social media as a tool to connect and communicate has become increasingly compelling to judges who feel the need to connect for personal, professional, or political reasons. (21) Of course, many lawyers engage in social media before becoming judges, and it follows that an increasing number of new judges will remain active on social media for personal and professional purposes, including reelection.

Some judges and commentators consider social media as an inevitable and essential method to disseminate information and connect with people and organizations. (22) Social media, while presenting practical, social, ethical, and security hurdles, (23) has become virtually impossible to ignore for many judges, who view social media as a tool for implementing the judicial ethical responsibility to stay connected to the community. (24) John Browning, a Dallas litigator and SMU Law School adjunct professor, explains:

[W]hile a judge's misuse of such new media can violate canons of ethics and focus the harsh glare of public perception, so can other, more traditional communications or relationships formed by judges. Depriving judges of technical familiarity that can inform their handling of cases...

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