Is a Facebook friendship really a friendship? Can judges be “friends” with attorneys on Facebook? Florida judges and legal ethicists have been debating these questions for more than four years. Florida District Courts of Appeal have now begun to offer their opinions, as Facebook friending has emerged as an issue in motions to recuse trial court judges. But definitive answers remain illusory.
Back in 2009, the Judicial Ethics Advisory Committee of the Florida Bar thought it had resolved the issue when it released an ethics opinion weighing in on these issues. According to the JEAC’s opinion, a judge is not permitted to be Facebook friends with a lawyer who may appear before him or her.
But more than three afters that opinion was released, at an educational program discussing this topic, a justice of the Florida Supreme Court reminded appellate judges and lawyers that the JEAC’s opinion is not necessarily authoritative. The JEAC is an advisory committee, the justice pointed out, and the Supreme Court of Florida is the ultimate arbiter of legal and judicial ethics in Florida.
During the same discussion, other Florida appellate court judges offered varying viewpoints about the propriety of Facebook friending. Judges are permitted to be friends with lawyers in real life, one pointed out, so why can’t they also be Facebook friends with lawyers? Another took the view that because Facebook is so public, allowing a lawyer to list a judge as his/her Facebook friend might create a forum for a lawyer to try to woo clients by giving the impression of having special influence over the judge presiding over their cases, or might cause opposing parties to fear that the judge might be biased in favor of his/her “friend.”
The 4th DCA Frowns on Facebook Friendship
Now Facebook friendship has become an issue in litigation. In September 2012, the Fourth District Court of Appeal in West Palm Beach became the first Florida appellate court to address Facebook friendship between judges and lawyers in Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012). Agreeing with the reasoning of the JEAC’s opinion, the 4th DCA held that a judge was required to recuse himself from a case in which the prosecutor was his Facebook friend.
It may be that the prosecutor’s Facebook friendship with the judge entailed no special influence over the judge whatsoever, the 4th DCA explained. But the existence of the Facebook friendship could “create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial” and that fear is sufficient to require the judge’s recusal. The Supreme Court of Florida declined to hear the appeal.
The 5th DCA Disagrees
On January 24, 2014, in Chace v. Loisel, the Fifth District Court of Appeal in Daytona Beach became the second Florida District Court of Appeal to weigh in. Making clear that the issue is far from settled, the 5th DCA called into question the 4th DCA’s understanding of the implication of Facebook friendship:
We have serious reservations about the court’s rationale in Domville. The word “friend” on Facebook is a term of art. A number of words or phrases could more aptly describe the concept, including acquaintance and, sometimes, virtual stranger. A Facebook friendship does not necessarily signify the existence of a close relationship. Other than the public nature of the internet, there is no difference between a Facebook “friend” and any other friendship a judge might have. Domville’s logic would require disqualification in cases involving an acquaintance of a judge. Particularly in smaller counties, where everyone in the legal community knows each other, this requirement is unworkable and unnecessary.
To require judges to step aside from hearing cases based on Facebook friendships, the 5th DCA explained, is to misunderstand “the true nature of a Facebook friendship,” and doing so “casts a large net in an effort to catch a minnow.”
Both Courts Agree That Some Facebook Friending is Out of Bounds
Despite its criticism of Domville, the 5th DCA held that the trial court in Chace should have followed the 4th DCA’s guidance and recused herself. Why?
For two reasons. First, at the time that the motion to recuse was made, Domville was the only decision of a Florida appellate court on the issue of Facebook friendship. When there is only one appellate court decision on an issue, every trial court in the state is required to apply the law as interpreted in that decision.
Second, the Facebook activity of the judge in Chace was worse and more likely to result in bias than merely being Facebook friends with one of the parties’ lawyers. The judge in Chace actually sent a Facebook friend request to one of the parties, i.e., Ms. Chace, while her divorce litigation was pending before the judge. On her attorney’s advice, Ms. Chace didn’t accept the request, and feared the judge might hold it against her.
The 5th DCA found the judge’s conduct of reaching out to a litigant with a case pending before her more troubling than a mere Facebook friendship between a judge and an attorney. It regarded Ms. Chace’s fear of bias as well founded, and ordered the judge to recuse herself.
An Open Question
The reality is that most judges are former litigators, and most former litigators have friends — on Facebook and in real life — who are litigators. But it is also a reality that even without Facebook friendships, many litigants are suspicious of the relationships between judges and lawyers.
It is unlikely that judges will ever be banned from having real life friendships with lawyers. At least in the short term, judges in Broward, Palm Beach, Martin, St. Lucie, Indian River, and Okeechobee Counties cannot be Facebook friends with lawyers appearing before them. It remains an open question whether they, and judges throughout the state, will be able to maintain Facebook friendships with lawyers in the long run.