Hello everyone and welcome to this Ethics Alert update which will discuss the recent oral argument which was held by the Florida Supreme Court in a matter wherein a Miami-Dade County Circuit Judge denied a motion to disqualify a lawyer who was a “friend” on the judge on Facebook and the Third District Court of Appeal upheld the lower court’s order. The case is Law Offices of Herssein and Herssein, P.A. d/b/a Herssein Law Group and Reuven T. Herssein v. United Services Automobile Association, Case No.: 2015-015825-CA-43 (Florida Supreme Court Case No. SC17-1848).
The law firm filed a petition with the Florida Supreme Court to stay the proceedings and invoke the Court’s discretionary jurisdiction. The Court accepted jurisdiction and ordered a stay and oral argument was held on June 7, 2018 The video of the oral argument is here: https://wfsu.org/gavel2gavel/viewcase.php?eid=2490
As I previously blogged, the Circuit Judge held that she was not required to recuse herself from a case in which she was a Facebook “friend” of the lawyer for one of the witnesses/potential parties. That lawyer was also a former judge with whom the judge worked before he resigned as a circuit judge. The decision appeared to depart from a previous 4th DCA opinion and an opinion of the Florida Judicial Ethics Advisory Committee (JEAC).
The Herssein law firm appealed to the Third DCA, which denied the appeal and stated:
“…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.” On this point we respectfully acknowledge we are in conflict with the opinion of our sister court in Domville.”
The Herssein law firm then requested that the Florida Supreme Court invoke its discretionary jurisdiction to review the decision under Article V, § 3(b)(4), Fla. Const., and Rule 9.030(a)(2)(A)(iii) and (iv) and, in support of the request, stated: “The decision expressly and directly affects a class of constitutional or state officers; all V judges in Florida, and the decision expressly and directly conflicts with the decision of another district court of appeal on the same question of law.”
During the oral argument on June 7, 2018, the justices expressed divergent views regarding whether a “Facebook” friendship should trigger the disqualification of judges and also noted there was no record of the extent of the trial judge’s Facebook presence in this matter, including the number of friends, how often and what type of information was posted, and any communications between the lawyer and the judge. Many of the justices also said they do not use Facebook, and some stated that this was to avoid the questions that are being raised in this case.
According to an article in the July 1, 2018 Florida Bar News, Justice Allan Lawson stated that Facebook friendship is “a spectrum that runs from close friendship, but runs further to someone you don’t recognize on the street or might not know…I’m having a hard time wrapping my mind around the argument that…I have no connection with this person, (and that) would somehow result in recusal or disqualification.” Justice Peggy Quince noted that the problem is “where would you draw the line” regarding the type of friendship that would require a recusal.
Bottom line: As I have said in my previous blogs, the circuit judge’s order and the 3rd DCA opinion appear to be contrary to the 2009 JEAC opinion and the 2012 4th DCA opinion and the opinion acknowledges that it is in conflict; however, it does provide the rationale that each case should be decided by examining the facts and the relationship. This would seem to create potential confusion and disqualification motions which would then have to be decided on a case by case basis. The Florida Supreme Court may now decide whether to there will be a case by case analysis or a bright line rule.
I would again point out that it would be prudent for judges and lawyers who may appear before judges to consider not being “friends” or otherwise have a connection on social media or, if they are already connected in a case, to immediately remove the connection, disclose it to all parties, and the judge could possibly provide an option to recuse if a party believes that there may be potential prejudice.
Be careful out there.
Disclaimer: this Ethics Alert is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
29605 U.S. Highway 19, N., Suite 150
Clearwater, Florida 33761
Office (727) 799-1688
Fax (727) 799-1670