Category Archives: Judge disqualification- Facebook friends with lawyer

Florida Supreme Court hears oral argument in case where judge found that Facebook “friendship” with lawyer was not disqualifying

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

jcorsmeier@jac-law.com

www.jac-law.com

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Herssein law firm files emergency motion with Florida Supreme Court to quash 3rd DCA opinion and order claiming violation of stay

Hello everyone and welcome to this Ethics Alert update which will discuss the recent (December 13, 2017) Motion to Quash filed by the Herssein law firm in the Florida Supreme Court proceeding challenging a Miami-Dade County Circuit Judge’s denial of a motion to disqualify a lawyer who was a former judge and “friend” of the judge on Facebook.  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 Herssein law firm’s Motion to Quash is here: https://efactssc-public.flcourts.org/casedocuments/2017/1848/2017-1848_motion_115391_motion2dother20substantive.pdf.

The law firm filed an emergency motion on December 13, 2017 asking the Florida Supreme Court to quash a December 13, 2017 3rd DCA opinion quashing two discovery orders and an order granting fees to USAA, claiming that the opinion and order violated the Supreme Court’s Stay Order dated December 7, 2017.

As I previously blogged, the Herssein law firm moved to disqualify the judge from a contract dispute against their client, the United States Automobile Association (USAA) in which a lawyer who represented a non-party USAA employee in the matter was identified as a potential witness/party.  The law firm argued that the judge could not be impartial in the case and cited JEAC Op. 2009-20 (Nov.17, 2009), which states: “Listing lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”  In 2012, the 4th DCA relied on the JEAC opinion in disqualifying a judge from a case for being Facebook friends with the criminal prosecutor. Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

Circuit Judge Beatrice Butchko found that she was not required to recuse herself from the case and the Herssein firm asked the Florida Supreme Court to 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).  In a December 7, 2017 Order, the Court issued a stay of the lower court proceedings and, in an Order dated December 11, 2017, accepted jurisdiction and provided a briefing schedule.

Bottom line:  In a strange turn of events, the law firm has filed a motion claiming that the 3rd DCA rendered an opinion and order which violate the Florida Supreme Court’s stay of the lower court proceedings and asking the Supreme Court to quash the opinion and order.

Stay tuned…and 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

jcorsmeier@jac-law.com

www.jac-law.com

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Herssein law firm files emergency motion with Florida Supreme Court to quash 3rd DCA opinion and order claiming violation of stay in Facebook disqualification matter

Hello everyone and welcome to this Ethics Alert update which will discuss the recent (December 13, 2017) Motion to Quash filed by the Herssein law firm in the Florida Supreme Court proceeding challenging a Miami-Dade County Circuit Judge’s denial of a motion to disqualify a lawyer who was a former judge and “friend” of the judge on Facebook.  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 Herssein law firm’s Motion to Quash is here: https://efactssc-public.flcourts.org/casedocuments/2017/1848/2017-1848_motion_115391_motion2dother20substantive.pdf.

The law firm filed an emergency motion on December 13, 2017 asking the Florida Supreme Court to quash a December 13, 2017 3rd DCA opinion quashing two discovery orders and an order granting fees to USAA, claiming that the opinion and order violated the Supreme Court’s Stay Order dated December 7, 2017.

As I previously blogged, the Herssein law firm moved to disqualify the judge from a contract dispute against their client, the United States Automobile Association (USAA) in which a lawyer who represented a non-party USAA employee in the matter was identified as a potential witness/party.  The law firm argued that the judge could not be impartial in the case and cited JEAC Op. 2009-20 (Nov.17, 2009), which states: “Listing lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”  In 2012, the 4th DCA relied on the JEAC opinion in disqualifying a judge from a case for being Facebook friends with the criminal prosecutor. Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

Circuit Judge Beatrice Butchko found that she was not required to recuse herself from the case and the Herssein firm asked the Florida Supreme Court to 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).  In a December 7, 2017 Order, the Court issued a stay of the lower court proceedings and, in an Order dated December 11, 2017, accepted jurisdiction and provided a briefing schedule.

Bottom line:  In a strange turn of events, the law firm has filed a motion claiming that the 3rd DCA rendered an opinion and order which violate the Florida Supreme Court’s stay of the lower court proceedings and asking the Supreme Court to quash the opinion and order.

Stay tuned…and 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

jcorsmeier@jac-law.com

www.jac-law.com

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Florida Supreme Court stays lower court case where judge found that Facebook “friendship” with lawyer was not disqualifying

Hello everyone and welcome to this Ethics Alert update which will discuss the recent (12/7/17) Order of the Florida Supreme Court granting the Herssein law firm’s Motion to Stay the lower court proceeding wherein Miami-Dade County Circuit Judge denied a motion to disqualify a lawyer who was a “friend” on the judge on Facebook.  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 Herssein law firm’s Motion for Stay is here: https://efactssc-public.flcourts.org/casedocuments/2017/1848/2017-1848_motion_114995_motion2dstay2028proceedings20below29.pdf and the December 7, 2017 Florida Supreme Court Order is here:  https://efactssc-public.flcourts.org/casedocuments/2017/1848/2017-1848_order_224307_o03bo.pdf.

As I previously blogged, the Third DCA upheld the decision of Miami-Dade Circuit Judge Beatrice Butchko 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.  The lawyer was also a former judge with whom she worked before he resigned as a circuit judge.  This decision departs from a previous 4th DCA opinion and an opinion of the Florida Judicial Ethics Advisory Committee (JEAC).

The Third DCA opinion states:

“A random name drawn from a list of Facebook ‘friends’ probably belongs to casual friend, an acquaintance, an old classmate, a person with whom the member shares a common hobby, a ‘friend of a friend’ or even a local celebrity like a coach.  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.”

The Herssein law firm had moved to disqualify the judge from presiding over a contract dispute against their client, the United States Automobile Association (USAA) in which an attorney named Reyes represented a non-party USAA employee in the matter, who was identified as a potential witness/party.  The law firm argued that the judge could not be impartial in the case and cited JEAC Op. 2009-20 (Nov.17, 2009).  That opinion states: “Listing lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”  In 2012, the 4th DCA relied on the JEAC opinion in disqualifying a judge from a case for being Facebook friends with the criminal prosecutor. Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

The Third DCA opinion states that Facebook friendships could represent a close relationship that would require disqualification, however, many do not.  The opinion concluded:

“In fairness to the Fourth District’s decision in Domville and the Judicial Ethics Advisory Committee’s 2009 opinion, electronic social media is evolving at an exponential rate. Acceptance as a Facebook “friend” may well once have given the impression of close friendship and affiliation. Currently, however, the degree of intimacy among Facebook “friends” varies greatly. The designation of a person as a “friend” on Facebook does not differentiate between a close friend and a distant acquaintance. Because a “friend” on a social networking website is not necessarily a friend in the traditional sense of the word, 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 filed a Notice asking the Florida Supreme Court to 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). In support of the request, the Notice states:  “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.”

Bottom line:  As I said in my previous blogs, the lower court’s order and the 3rd DCA opinion is contrary to the 2009 JEAC opinion and the 2012 4th  DCA opinion and acknowledges that it is in conflict with that opinion; 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 potential disqualification motions would then have to be decided on a case by case basis.  The Florida Supreme Court has now stayed the lower court matter while it presumably looks at the issue and decides whether to invoke its discretionary jurisdiction.

Again, it would seem to be prudent for judges and lawyers who may appear before them not to be “friends” or otherwise connect on social media and professional networking sites or, if they are already connected and a case is assigned, to immediately remove the connection, disclose it to all parties, and (the judge may) possibly provide an option to recuse if the party believes that it could be potentially prejudiced.

Stay tuned…and 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

jcorsmeier@jac-law.com

www.jac-law.com

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Florida Appeals Court finds that Miami-Dade Circuit Judge’s Facebook “friendship” with lawyer and former judge is not disqualifying

Hello everyone and welcome to this Ethics Alert which will discuss the recent (August 23, 2017) Florida Third District Court of Appeal (DCA) opinion declining to disqualify a Miami-Dade County Circuit Judge who was “friends” with opposing counsel on Facebook.  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.: 3D17-1421, Lower Tribunal No.: 2015-015825-CA-43 (Florida Third District Court of Appeal) and the opinion is here: http://www.3dca.flcourts.org/Opinions/3D17-1421.pdf 

In a somewhat surprising decision, the Florida Third District Court of Appeal found that Miami-Dade Circuit Judge Beatrice Butchko is not required to recuse herself from a case in which she was a Facebook” friend” of the lawyer for one of the parties (Israel Reyes).  The lawyer was also a former judge with whom she worked before he stepped down as a judge.  This decision diverges from a Fourth District Court of Appeal opinion as well as a 2009 opinion of the Florida Judicial Ethics Advisory Committee (JEAC)- JEAC Op. 2009-20 (Nov.17, 2009).  The Third DCA opinion states:

“A random name drawn from a list of Facebook ‘friends’ probably belongs to casual friend, an acquaintance, an old classmate, a person with whom the member shares a common hobby, a ‘friend of a friend’ or even a local celebrity like a coach.  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.”

As I previously reported in my August 4, 2017 Ethics Alert, the Herssein Law Group moved to disqualify the judge from presiding over a contract dispute against their client, the United States Automobile Association (USAA) in which Reyes represents a non-party USAA employee in the matter, who was identified as a potential witness/party.

The law firm argued that the judge could not be impartial in the case and cited the 2009 JEAC opinion which states: “Listing lawyers who may appear before the judge as ‘friends’ on a judge’s social networking page reasonably conveys to others the impression that these lawyer ‘friends’ are in a special position to influence the judge.”  In 2012, the Fourth District Court of Appeal relied on the JEAC opinion in disqualifying disqualified a judge from a case for being Facebook friends with the prosecutor. Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).

The Third DCA opinion further states that Facebook friendships could represent a close relationship that would require disqualification, however, many do not.  The opinion concluded:

“In fairness to the Fourth District’s decision in Domville and the Judicial Ethics Advisory Committee’s 2009 opinion, electronic social media is evolving at an exponential rate. Acceptance as a Facebook “friend” may well once have given the impression of close friendship and affiliation. Currently, however, the degree of intimacy among Facebook “friends” varies greatly. The designation of a person as a “friend” on Facebook does not differentiate between a close friend and a distant acquaintance. Because a “friend” on a social networking website is not necessarily a friend in the traditional sense of the word, 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.”

Bottom line:  This DCA opinion is contrary to the 2009 JEAC opinion and the 2012 4th DCA opinion and acknowledges that it is in conflict with that DCA opinion; however, it does provide the rationale that each case should be decided  by examining the facts and the relationship.  This would seem to open up potential confusion and potential disqualification motions that would have to be decided on a case by case basis.    It is still recommended that judges (and lawyers who may appear before them) would be well advised not to be “friends” or otherwise connect on social media and professional networking sites or, if they are already connected and a case is assigned, to immediately remove the connection and disclose it to all parties and provide an option to recuse if the party believes that it would potentially be prejudiced.

Be careful out there.

Disclaimer:  this e-mail 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

jcorsmeier@jac-law.com

www.jac-law.com

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