No Disqualification of Judge for being Facebook “friend” with Attorney

By Michael J. Napoleone

Is it a good idea to be a Facebook “friend” with a judge before whom you may reasonably expect to appear? Probably not. But that friendship, without more, is unlikely to serve as the basis for a successful motion to disqualify a judge according to a recent opinion from the Third District Court of Appeal.

The appellate court held that being a Facebook “friend” with a judge – standing alone – does not provide a basis for disqualification. In Law Offices of Herssein and Herssein, P.A., v United Services Automobile Association, ___ So. 3d __ (Fla. 3d DCA August 23, 2017) the Third District denied a writ of prohibition seeking to disqualify a trial judge because the judge was a Facebook “friend” with a lawyer representing a potential witness and potential party in the pending litigation. In denying disqualification, the court noted that “[b]ecause 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.’”

In reaching this conclusion, the court acknowledged it was in conflict with a decision out of the Fourth District Court of Appeal, Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012), which held that recusal was required where a judge was a Facebook “friend” with the prosecutor. The Third District recognized that “electronic social media is evolving at an exponential rate” and that while at one time, being a “friend” on social media may have “given the impression of close friendship and affiliation,” not all Facebook “friends” rise to the level or a close relationship that warrants disqualification.

The court noted that a mere personal friendship with a judge is an insufficient basis to disqualify a judge, and that this standard should apply equally to attorneys or interested parties who are “friends” with a judge on social media. Something more than mere “friendship” with a judge – whether in person or on social media – is required before that friendship can be grounds for disqualification. The Third District recognized that while some Facebook “friends” are undoubtedly friends in the classic sense of person for whom the member feels particular affection and loyalty, many are not. “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.” A reasonably prudent person should not fear that he or she could not get a fair trial in front of a judge who is a Facebook friend with a lawyer involved in the case.