Friday, September 21, 2012
Earlier this month, a Florida appellate court held that a defendant's motion to disqualify a trial judge was legally sufficient to require disqualification where the trial judge was a Facebook friend with the prosecutor assigned to the case.
In Domville v. State of Florida, No. 4D12-556, 2012 WL 3826764 (Fla.Dist.Ct.App. Sep. 5, 2012), the defendant filed the motion to disqualify the judge alleging that the judge and prosecutor assigned to the case were Facebook friends. The trial judge denied to motion as legally insufficient.
The appellate court relied upon a 2009 Florida Judicial Ethics Advisory Committee opinion that concluded that the Florida Code of Judicial Conduct precluded a judge from both adding attorneys that appeared in their courts as friends, and allowing attorneys so appearing to add the judge as a friend. The Committee opined that such conduct violated Florida Code of Judicial Conduct, Canon 2B which prohibits judges from conveying or permitting others to convey, "the impression that they are in a special position to influence the judge." The Committee also concluded that a judge that Facebook friends an attorney "reasonably conveys to others" the impression that the attorney is in fact in a special position to influence the judge.
The appeals court quashed the trial court's order denying disqualification as a matter of law and returned the case to the trial court for further proceedings.
To date, Massachusetts and Oklahoma judicial ethics committees have joined Florida in taking a restrictive approach to judges using social media. The Massachusetts Committee's opinion on the subject goes so far as to state that a judge may friend an attorney on social media only when that judge would recuse herself if and when the friended attorney appeared before her.
Even in states where judicial ethics committees have taken a permissive approach to judicial use of social media, judges may face disqualification or recusal motions in similar circumstances. The law in this area is very new and uncertain as judges, attorneys and ethics committees develop policies and implement guidelines for judicial use of social media.