Monday, September 11, 2017

Friending Judges

From sunEthics

Law Firm sued a former client (USAA) for breach of contract and fraud.  Law Firm accused one of USAA’s executives of witness tampering, and suggested that he is a potential witness and potential defendant.  USAA hired an ex-judge (Lawyer) to represent the executive.  Law Firm moved to disqualify the trial judge (Judge) on the ground that Lawyer is a “friend” on Judge’s personal Facebook page.  Law Firm’s client claimed to have a well-founded fear of not getting a fair trial.  Judge denied the disqualification motion.

The Third DCA denied Law Firm’s petition for writ of prohibition.  The issue was “whether a reasonably prudent person would fear that he or she could not get a fair and impartial trial because the judge is a Facebook friend with a lawyer who represents a potential witness and party to the lawsuit.”  Generally, allegations of mere friendship are insufficient grounds for judicial disqualification.  However, in Domville v. State, 103 So.3d 184 (Fla. 4th DCA 2012), the court ruled that a judge’s disqualification was required when the judge was a Facebook “friend” with the prosecutor.  The Judicial Ethics Advisory Committee has also opined that a judge should not play an active role in accepting or rejecting potential social media “friends.”  JEAC Op. 2009-20; see also JECA Op. 2010-06.  More recently, the Domville case was questioned by the Fifth DCA in Chace v. Loisel, 170 So.3d 802 (Fla. 5th DCA 2014).

  In the instant case, the Third DCA concluded:  “We agree with the Fifth District that ‘[a] Facebook friendship does not necessarily signify the existence of a close relationship.’”  The court gave 3 reasons for its decision.

 First, some people have numerous Facebook “friends,” perhaps even thousands.  See Sluss v. Commonwealth, 381 S.W.3d 215 (Ky. 2012) (declining to require new trial when juror was Facebook “friend” with victim’s family member).  Second, people often cannot recall every person whom they have accepted as a Facebook “friend” or who has accepted them as such.  (Case citations omitted.)  Third, “many Facebook ‘friends’ are selected based upon Facebook’s data-mining technology rather than personal interactions.”

The court noted that, while some Facebook “friends” may be “friends in the classic sense” and thus have a personal relationship of affection and loyalty, many are not.  “An 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.”  Accordingly, “we hold 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.’”

  The court acknowledged conflict with Domville.   Law Offices of Herssein and Herssein, P.A. v. United States Auto. Ass’n, __ So.3d __ (Fla. 3d DCA, No. 3D17-1421, 8/23/2017), 2017 WL 3611661.

(Mike Frisch)

Judicial Ethics and the Courts | Permalink


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