Category Archives: Lawyer and Judge Friends on Facebook Motion to Disqualify Judge

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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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

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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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Miami-Dade Circuit Judge’s Facebook “friendship” with Florida lawyer and former judge leads to motion to disqualify and appeal

Hello everyone and welcome to this Ethics Alert which will discuss the recent denial of a Motion to Disqualify a Miami-Dade County Circuit Judge who was “friends” with opposing counsel on Facebook as well as the pending appeal.  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.: _______________, Lower Tribunal No.: 2015-015825-CA-43 (Florida Third District Court of Appeal) and the Motion for Writ of Prohibition is here:  http://www.almcms.com/contrib/content/uploads/sites/292/2017/07/FILED-HLG-Petition-for-Writ-of-Prohibition-3D17-1421-1.pdf 

According to the Petition, Miami-Dade Circuit Judge Beatrice Butchko is a “friend” of attorney Israel Reyes on Facebook.  Reyes is also a former Miami-Dade judge who served with Judge Butchko and now has a private law firm in Coral Gables.  Reyes represents a USAA employee in the case who retained separate counsel after Herssein apparently accused the employee of witness tampering.  Herssein told the court that he planned to add the employee as a defendant and Reyes entered an appearance on behalf of the employee/non-party.

The Motion to Disqualify filed by the Herssein law firm on behalf of USAA alleged that the Facebook friendship between the judge and Reyes would cause Reyes to be able to influence the judge, and that she could not be impartial.  The judge denied the motion, stating that it was legally insufficient.  The law firm then filed the Petition for Writ of Prohibition with the Third District Court of Appeal.

The Florida Supreme Court’s Judicial Advisory Committee (JEAC) issued an opinion on this issue in 2009.  The JEAC opinion states that judges should not send or accept social media friend requests from lawyers who may appear before them.  The advisory opinion excludes campaign sites created by a committee.  The opinion is JEAC Op. No. 2009-20 (11/17/09) and is here:  http://www.jud6.org/legalcommunity/legalpractice/opinions/jeacopinions/2009/2009-20.htmlt  The opinion states:

“The Committee believes that 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.  This is not to say, of course, that simply because a lawyer is listed as a “friend” on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in a special position to influence the judge.  The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a “friend” on the social networking site, conveys the impression that the lawyer is in a position to influence the judge.  The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.”

The JEAC applied the same analysis in a 2012 opinion related to professional networking websites, such as LinkedIn, and stated that there is no “meaningful distinction” between Facebook, and LinkedIn.  The opinion is JEAC Op. No. 2012-12 (5/9/12) and is here:  http://www.jud6.org/legalcommunity/legalpractice/opinions/jeacopinions/2012/2012-12.html.  The opinions states:

The Committee continues to believe that the process of selecting persons to be connections on LinkedIn, and the communication by the judge of the list of the judge’s connections to others who the judge has approved, violates Canon 2B.  The Committee does not believe that there is meaningful distinction in this regard between Facebook, and LinkedIn, a site used for professional networking, because the selection and communication process is the same on both sites.

The Fourth District Court of Appeal relied on the 2009 opinion in a 2012 decision disqualifying a judge in a criminal case for being Facebook friends with the prosecutor. The court found the social media connection could “create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.”

USAA argued that the 2012 Fourth DCA decision should not apply since it involved a criminal defendant who might have a reasonable fear of prejudice; however, the law firm is more sophisticated and should not have such a fear only because two judges who both previously sat as judges in Miami-Dade County are “friends” on Facebook.

Other states have also provided guidance on judicial social media use and Florida’s opinion is one of the most restrictive.  California, Kentucky and New York have opined that judges may accept Facebook friend requests from lawyers who may appear before them under certain conditions.  California permits judges to be friends with lawyers on Facebook if those pages are used only for professional activities, such as communications with members of a law school alumni group and other factors include how many friends the judge has, whether he or she declines some attorneys’ friend requests but accepts others and how often the attorney appears before the judge.

Bottom line:  As this case illustrates, 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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