Can Judges and Lawyers Be Facebook “Friends”? It Depends Where You Are.

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An attorney can be friends with a judge IRL (in real life). Now they can be Facebook friends too–at least in the Third District.

The Third District Court of Appeal, recognizing the evolving influence and role of social media in our society, has held that a judge should not be disqualified from a case for merely being Facebook “friends” with counsel for a party.

In Law Offices of Herssein and Herssein, P.A., v. United Services Automobile Association, 3D17-1421 (Fla. 3d DCA Aug. 23, 2017), the petitioners filed a writ of prohibition, seeking to disqualify the trial court judge because a potential witness and a potential defendant was listed on the judge’s personal Facebook page as a “friend.”

This issue has nearly a decade of history in Florida law.  In 2009, a Judicial Ethics Advisory Committee Opinion said that a judge may not add lawyers who may appear before him as “friends” on social networking sites, and vice versa.  In 2012, the Fourth District relied on the JEAC Opinion and granted a writ of prohibition, disqualifying a judge because he was Facebook “friends” with the prosecutor, Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

Then, in 2014, the Fifth District granted a writ of prohibition because the trial judge “reached out” to a party in a dissolution case while litigation was pending and tried to “friend” her on Facebook.”  Chace v. Loisel, 170 So. 3d 802 (Fla. 5th DCA 2014).  While clearly what the trial court did was wrong, and factually different than the issue in Domville, the Chace court went on to express “serious reservations about the court’s rationale in Domville.”  The Fifth District said that “there is no difference between a Facebook ‘friend’ and any other friendship a judge might have,” and that “Domville’s logic would require disqualification in cases involving an acquaintance of a judge.”  The Fifth District also noted that “A Facebook friendship does not necessarily signify the existence of a close relationship.”

This is the legal landscape in which the Third District decided Herssein.  Preliminarily, the court recognized that merely being “friends” in the conventional sense has been historically insufficient to warrant disqualification of a judge.  It then latched onto the Fifth District’s statement regarding the closeness of Facebook “friends,” applying this rationale for three reasons:

  • “Some people have thousands of Facebook ‘friends,'”
  • “Facebook members often cannot recall every person they have accepted as ‘friends’ or who have accepted them as ‘friends,'” and
  • “many Facebook ‘friends’ are selected based upon Facebook’s data-mining technology rather than personal interactions.”

The Fifth District noted that Domville had been decided many years prior, in a quickly-evolving technological landscape–stated simply, times have changed.  It certified conflict with Domville, and denied the petition, holding that merely being Facebook “friends” with someone no longer demonstrates closeness of a relationship.

So where does that leave us practicing attorneys?

  • In the Third District, whether you are Facebook “friends” with a judge is irrelevant to whether your actual relationship is sufficiently close to warrant disqualification.  See Herssein.
  • In the Fourth District, being Facebook “friends” with a judge is sufficient on its own to warrant a disqualification.  See Domville.
  • The Fifth District’s dicta suggests it would side with the Third District, but it has issued nothing precedential upon which to rely.  See Chace.
  • Neither the First nor Second Districts have spoken on the issue.

Clarification Granted

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As I previously reported, there was a motion for clarification filed in the Service Experts v. Northside case. It didn’t actually have to do with the jurisdiction issue. Rather, it focused on a sentence in the opinion that seemed like throwaway dicta to the court, but made a big difference to our client on remand. Today, the court granted the motion in part, and struck the offending sentence from its opinion. [.pdf]

This just goes to show that even though motions for clarification under Florida Rule of Appellate Procedure 9.330 should not be undertaken lightly, a narrowly tailored and focused motion can get traction.

The Line

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Have you ever crossed the protest line of a gaggle of abortion protestors while pregnant?  I have.

The Supreme Court almost always has some anti-abortion protestors forming a line in front of the Court when there’s oral argument scheduled.  My memory of that day was sparked by the recent New York Times article about the crowd waiting in line for oral argument at the U.S. Supreme Court. The article touched a chord with me for two reasons. First, it features a Georgetown Law student, Mike Sacks, and introduced me to his blog First One @ One First. Mr. Sacks is a man on a mission, and as a fellow GULCer, his drive didn’t exactly surprise me, but it did impress me. And second, it brought back fond memories of being a Georgetown Law student myself, and spending many hours reviewing cert. petitions in the clerk’s office as a research assistant.

Thankfully, though, I’ve never had to go to the extremes that Mr. Sacks does to witness oral argument at the high court. The first time I went, I did the quickie “come in for five minutes and go out again” line, as at that point I was more interested in just being in the same room with the Court for a moment than actually hearing the argument.

The last time I went, I was lucky enough to be a guest of a Justice (or more accurately, a guest of a former Supreme Court clerk who kindly pulled strings and got me on the Justice’s guest list). My feet and my pregnant belly were both very grateful to not have to wait in the long line on that snowy, cold day in December — it was one of the many days where one of the cases was Very Big News, and even the special Supreme Court Bar members line was impossibly long. I was lucky enough to be able to go right past the Public Line and the Bar Line and get whisked through security and straight into a seat in the second row.

I was there to see the argument in State Farm v. Campbell, as I had helped write a Petition for Certiorari for an Oregon punitive damages case that raised similar issues. (Once State Farm was decided, the Court granted certiorari in our case and remanded with instructions to reconsider in light of State Farm). Larry Tribe argued the case for the Respondents, and it was very cool to see him in action. I came for Campbell, but I also got to witness the argument in Virginia v. Black, in which the Court considered the constitutionality of Virginia’s anti-cross burning statute under the First Amendment. My strongest memory of the argument that day was the fact that Justice Thomas, who is generally known for his silence at oral argument, actually SPOKE. He spoke, and I witnessed it.

I still count it as one of the most surreal moments of my life, crossing a line of Roe v Wade protestors with my first unborn baby along for the ride. And then hearing Nina Totenberg describe everything I had just witnessed as I was listening to NPR on the drive home.