By Nicole Black
BridgeTower Media Newswires
Whether judges should use social media has been a contentious issue for some time now. Early on, the consensus seemed to be that it was problematic for judges to do so, but over time that’s changed.
For example, in 2012 Florida’s Fourth District Court of Appeal addressed this issue in Pierre Domville v. State of Florida, No. 4D12-556 and disqualified a judge from overseeing a case because the judge was Facebook “friends” with the prosecuting attorney. But then in August of this year, the Third District Court of Appeal in Florida in Law Offices of Herssein and Herssein v. United States Automobile Association, No. 3D17-1421 addressed the very same issue and reached a different conclusion. The court determined that it was departing from the holding in Domville and was declining to disqualify a judge as a result of his Facebook connection with an attorney appearing in his court, since online friends are “not necessarily (friends) in the traditional sense of the word” and thus the fact that a judge is Facebook “friends” with a lawyer for a potential party or witness does not necessarily mean that the judge cannot be impartial.
Just recently, the Supreme Court of Florida considered this case on appeal in Herssein and Herssein v. United States Automobile Association, No. SC17-1848 (online: http://www.florida supremecourt.org/decisions/ 2018/sc17-1848.pdf). At issue was whether the lower court correctly determined that a Facebook friendship between a judge and an attorney appearing for the judge was not, in and of itself, a sufficient basis for disqualification of the judge.
In reaching its decision, the court first examined the concept of a “friendship,” explaining that simply being friends with someone does not indicate the level of closeness of the friendship: “It is commonly understood that friendship exists on a broad spectrum: some friendships are close and others are not ...Thus the mere existence of a friendship, in and of itself, does not inherently reveal the degree or intensity of the friendship.”
Next, the court applied this understanding to the concept of a Facebook “friendship” and concluded that not all Facebook friendships between a judge and an attorney appearing in their court require disqualification. The court examined the nature of Facebook connections, explaining that “(t)he establishment of a Facebook ‘friendship’ does not objectively signal the existence of the affection and esteem involved in a traditional ‘friendship’... (and) it is regularly the case that Facebook “friendships” are more casual and less permanent than traditional friendships.”
Accordingly, the court reached the same conclusion as the majority of other jurisdictions that have recently addressed this issue and held that a Facebook friendship, in and of itself, was insufficient to warrant disqualification: “(T)he mere existence of a Facebook ‘friendship’ between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship. No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are Facebook ‘friends’ with a relationship of an indeterminate nature.”
This is, I believe, the correct decision. As I’ve opined in the past, judges are simply people and have lives outside the courtroom — which include friendships with attorney colleagues that pre-date their appointment to the bench. It flies in the face of common sense to issue decisions that prevent judges from interacting on social media with the very same lawyers with whom they are already connected and with whom they regularly interact in public. It’s heartening to see that the Florida Supreme Court agrees with this position and has issued a ruling that aligns with the realities of living in the 21st century.
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycase.com.
