Category Archives: Judicial ethics

Referee recommends that former Florida judge who accepted Tampa Bay Rays tickets be suspended for 90 days and placed on probation

Hello everyone and welcome to this Ethics Alert which will discuss the recent Report of Referee which recommends that former Lee County Judge John Lakin, who was alleged to have improperly accepted tickets to Tampa Bay Rays baseball games, be suspended from practice for 90 days and be placed on probation for one year.  The case is The Florida Bar v. John Francis Lakin, SC17-542.  The June 25, 2018 Report of the Referee is here: https://www.documentcloud.org/documents/4564632-Referee-Report-Lakin.html

The Judicial Qualification Commission charged the judge with misconduct in 2016 alleging, inter alia, that he had requested and received Tampa Bay Rays tickets from a law firm in 2015 while presiding over a pending case in which the law firm represented one of the parties.  A jury ruled in favor of opposing party; however, the judge subsequently reversed that verdict in favor of the law firm’s client.  Five of the tickets that the judge received were given to him the day before he reversed the jury verdict.  The judge denied that the receipt of the tickets influenced his actions and later retired from the bench and went into private practice.

The Florida Bar filed a Complaint in March 2017 alleging that the lawyer violated Bar Rules related to dishonesty, deceitfulness, misrepresentation and/or fraud.  The referee assigned to hear the Bar matter recommended that the former judge’s law license be suspended for 90 days, and that he be placed on supervised probation one year, complete the Bar’s practice and professionalism enhancement program, “speak to new judges” about the circumstances, and pay the Bar’s costs of $5,244.00.

Under the Florida Bar rules, the referee’s report will now be reviewed by the Florida Supreme Court, which will render a final disciplinary opinion.  The judge and The Florida Bar can file a petition with the Court to review the findings and file briefs.

Bottom line:  This former judge accepted tickets from lawyers who were representing a party before him on a pending case and, soon after receiving the tickets, made a ruling which favored that law firm’s clients.   Even if the tickets did not influence the judge’s decision, the circumstances would certainly seem to create an appearance of impropriety and an arguable violation of the Judicial Canons.  The referee has now recommended that the judge be found guilty of Florida Bar Rule violations and suspended from practicing law for 90 days.  The Florida Supreme Court will now decide whether the referee’s findings will be upheld.

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

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

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Pennsylvania Supreme Court disbars ex-judge who pled guilty to stealing cocaine held in court cases

Hello everyone and welcome to this Ethics Alert, which will discuss the recent Pennsylvania Supreme Court opinion disbarring a former judge who pled guilty to stealing cocaine, from an evidence locker in his courtroom for his own personal use for more than a year.  The case is Office of Disciplinary Counsel v. Paul Michael Pozonsky (Case No. 123 DB 2015) (opinion issued January 18, 2018).  The opinion is here: http://www.pacourts.us/assets/opinions/DisciplinaryBoard/out/123db2015-pozonsky.pdf#search=%22Paul Pozonsky%22.

According to the disciplinary opinion, “the judge . . . presided over criminal trials, juvenile delinquency hearings, and also directed the rehabilitative disposition of drug offenders in that county’s Drug Court, which he founded. Using his position as a jurist, he directed police officers and court personnel to bring cocaine, which was evidence in the cases over which he was presiding, to an evidence locker in his courtroom; whereupon, for over a year, he stole quantities of this illegal drug from that locker and used it for his own recreational purposes, all while continuing to preside over criminal prosecutions and imposing sentences on defendants for committing crimes which he himself was contemporaneously engaging in.”

“After Pozonsky’s illicit activities were discovered, he resigned his judicial commission and was convicted for his crimes. After considering all the relevant facts and circumstances surrounding Pozonsky’s egregious misconduct while a commissioned judge, and taking into account the mitigating evidence he offered, the Disciplinary Board of the Supreme Court of Pennsylvania (“Disciplinary Board” or “Board”) issued a unanimous report detailing its factual findings and its recommendation that he be disbarred.”

The opinion further stated that “(t)here are few transgressions which more seriously undermine the public’s confidence and trust in the integrity of their judicial system, and which are as offensive to the high standards and principles which other members of the bench and bar strive so faithfully to uphold in the performance of their duties, than those committed by Pozonsky.”

The ex-judge pled guilty in 2015 to charges related to the theft of the cocaine, including misdemeanor theft, obstruction of justice, and misapplication of entrusted property and served one month in jail.

Oral arguments were held in April 2017 and the ex-judge stated in mitigation that he had accepted full responsibility for his conduct and engaged in community service, including working at a homeless mission and counseling others with addiction as mitigating factors in an effort to reduce the disciplinary sanction.  The court rejected the ex-judge’s argument that his addiction should be considered as a mitigating factor.

The disciplinary opinion concluded: “Because the evidence of record amply supports the Board’s findings and corresponding recommendation of disbarment, we order Pozonsky’s disbarment to both protect the public and to preserve the integrity of the legal profession.”

Bottom line:  This is an extremely egregious case of an apparently addicted judge who asked law enforcement to bring cocaine to his courtroom to “hold” in criminal cases (not sure how that would happen) and then stole the cocaine from the locker and used it for “his own recreational; purposes.”  A concurring opinion stated that disbarment was not automatic and mused that it was ironic that the ex-judge was not able to mitigate the disbarment by showing that he was addicted but agreed that disbarment was appropriate.

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

Joseph Corsmeier

about.me/corsmeierethicsblogs

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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

Leave a comment

Filed under Attorney Ethics, Florida Bar, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Judge disqualification- Facebook friends with lawyer, Judges and lawyer friends on Facebook, Judicial ethics, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics Facebook, Lawyer social media ethics, Lawyers and social media

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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Filed under Attorney Ethics, Florida Bar, Florida judge ethics, Florida Judicial Canons, Florida Judicial Ethics Opinions judges connecting on Facebook and LinkedIn, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, Judge disqualification- Facebook friends with lawyer, Judicial ethics, Judicial Ethics Facebook and LinkedIn, Lawyer and Judge Friends on Facebook Motion to Disqualify Judge, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer ethics Facebook, Lawyer social media ethics, Lawyers and social media

Law firm requests Florida Supreme Court to invoke discretionary jurisdiction challenging judge’s finding that Facebook “friendship” with lawyer is not disqualifying

Hello everyone and welcome to this Ethics Alert update which will discuss the recent (10/17/17) Notice that was filed with the Florida Third District Court of Appeal (and docketed with the Florida Supreme Court) seeking to invoke the discretionary jurisdiction of Florida Supreme Court and challenging the appeals court decision which declined to disqualify a Miami-Dade County Circuit Judge who was “friends” with opposing counsel on Facebook.  The 3rd DCA 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 3rd DCA) and the Supreme Court case number is SC17-1848.  The Notice and 3rd DCA opinion are here:  https://efactssc-public.flcourts.org/casedocuments/2017/1848/2017-1848_notice_82684_e81d.pdf and the SC docket with the filing is here: http://jweb.flcourts.org/pls/docket/ds_docket?p_caseyear=2017&p_casenumber=1848

As I previously blogged on 8/4/17 and 8/24/17, the 3rd 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 parties.  The lawyer was also a former judge with whom she worked before he stepped down as a judge.  This decision diverges from a 4th DCA opinion as well as an opinion of the Florida Judicial Ethics Advisory Committee (JEAC).  The 3rd 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 then 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 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 3rd 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 has filed a Notice with the 3rd DCA (which was received and docketed with the Florida Supreme Court on 10/17/17) 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 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 open up potential confusion and potential disqualification motions that would have to be decided on a case by case basis.  This Notice seeks to have the Florida Supreme Court invoke its discretionary jurisdiction review and reverse the 3rd DCA’s decision.

It is still strongly 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, 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 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

Leave a comment

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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

Leave a comment

Filed under Attorney Ethics, Disqualification, Florida judge ethics, Florida Judicial Canons, Florida Judicial Ethics Opinions judges connecting on Facebook and LinkedIn, Florida Judicial Qualifications Commission, joe corsmeier, Joseph Corsmeier, Judge disqualification- Facebook friends with lawyer, Judges and lawyer friends on Facebook, Judicial ethics, Lawyer and Judge Friends on Facebook Motion to Disqualify Judge