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.

The Clerk of Court is Not the Best Bailee for Your Negotiable Instrument, Second DCA Holds

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The Second District last week reversed a judgment of foreclosure, holding that Nationstar–the servicer of the loan at issue–could not establish it was the holder or nonholder in possession of a Note via possession by the clerk of court.

Years prior to the suit that led to the opinion in Partridge v. Nationstar Mortgage, LLC, 2D16-3081 (Fla. 2D DCA Aug. 11, 2017), lender Bank of America had filed the original note and mortgage with the trial court in a different foreclosure action.  That action was ultimately dismissed, but the original note and mortgage were left in the circuit court clerk’s possession.

Nationstar then began servicing the loan, and ultimately filed a foreclosure action of its own.  Nationstar did not take possession of the Note, but instead moved the trial court to take judicial notice of the originals and transfer them to the new action.  Ultimately, the trial court entered judgment of foreclosure for Nationstar, and the homeowner appealed.

On appeal, the Second District held that Nationstar had failed to establish standing because it did not show it possessed the original note.  The court rejected Nationstar’s contention that it “was using the clerk [of the court] as bailee to continue possessing the note on its behalf,” holding that Nationstar’s “unilateral decision to leave the original note and mortgage with the trial court does not establish possession of the note.”

This case demonstrates another of the many ways in which lenders and trial courts often misunderstand the issue of standing.  We at DPW Legal regularly handle appeals for homeowners who have found themselves with a foreclosure judgment against them.  If you find yourself in such a scenario, feel free to contact us so we can help you determine whether you might have a basis for appeal.

 

Second DCA holds you can get “fees for fees”—if it is in your contract

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Ordinarily, where an attorneys’ fee award is available, a party is entitled to fees for litigating the entitlement to those fees, but not the amount.  The Second District Court of Appeal has now recognized that this rule is not absolute, and the language of an attorney fee provision in a contract can provide for a more extensive award.

In Trial Practices, Inc. v. Hahn Loeser & Parkes, LLP, 2D13-6051 & 2D14-86 (Fla. 2d DCA Apr. 12, 2017), Trial Practices (“TPI”) sued its former client for legal consulting services, claiming entitlement to a percentage of the client’s settlement of a third-party lawsuit.  The client prevailed against TPI, and the judgment was affirmed on appeal.

The client then sought an award of attorneys’ fees pursuant to the Consulting Agreement between himself and TPI.  The Consulting Agreement stated:

[the] prevailing party in any action arising from or relating to this agreement will be entitled to recover all expenses of any nature incurred in any way in connection with the matter, whether incurred before litigation, during litigation, in an appeal, . . . or in connection with enforcement of a judgment, including, but not limited to, attorneys’ and experts’ fees.

The trial court entered an award of fees that included a significant amount “attributed to [the client’s] attorney’s litigation of the issue of the amount of attorneys’ fees and costs.”  On appeal, the Second District held that the language of the “Consulting Agreement” was sufficiently broad to encompass this “fees for fees” award.

The Second District held that this case, in which fees were sought pursuant to contract, is distinguished from cases in which fees were sought pursuant to statute—where “fees for fees” is generally unavailable.  The Court also recognized that Florida law allows parties to “freely contract on the issue of attorney[s’] fees,” and that courts are not permitted to rewrite contracts to relieve parties of their obligations.

The Second District also held that attorneys who testified as fact witnesses in the original trial were entitled to receive reasonable compensation for their assistance, and that the “Consulting Agreement” was sufficiently broad to allow an award of overhead expenses as part of a cost award.  It did reverse, in part, for the trial court to itemize a bulk cost award in the judgment, and determine which costs were taxable and which costs were not taxable; and to change the date from which prejudgment was calculated.

In sum, if a party is seeking an award of attorneys’ fees pursuant to a broad contractual provision, the fee award may encompass not only time spent in litigating entitlement to fees, but also to litigating the amount.