Are Facebook Friendships Unethical?

Antonia Iragorri Bernal – Ethics are not taken lightly in the legal community. Judges in particular are held to a high standard of professionalism that comes with playing the role of a judicial representative to the people. The Judicial Ethics Advisory Committee, the body that regulates judiciary conduct, drafts opinions which lay out the practices and activities that judges can and cannot engage in while holding a place on the bench. However, because these opinions are not legally binding, courts are often left to answer the question: how can judges act?

This past June, following the Third District Court of Appeals rejection to disqualify a Miami-Dade County Circuit Judge for being Facebook friends with an attorney on a case, the Florida Supreme Court was presented with the question: should a Facebook Friendship between a judge and an attorney be grounds for the Judge’s recusal?

The test for determining the legal sufficiency of a motion for disqualification is whether the alleged facts in a case would lead a reasonably prudent person to fear that they could not get a fair and impartial trial. The Herssein Law Group, the party seeking disqualification, argued that Judge Beatrice Butchko was in violation of a Florida Judiciary Ethics Advisory Committee Opinion by being Facebook friends with Israel Reyes, the attorney representing the opposing party, United Services Automobile Association. Arguing that the existence of the friendship led them to fear they were more likely to receive an impartial trial, Herssein petitioned for the court to grant the disqualification of Judge Butchko from the case. The Third District however, did not buy the Law Firms argument and held that the single fact that an attorney is listed as a “friend” on a trial judge’s personal page on a social networking site, without more, is insufficient to warrant disqualification.

Siding with the Fifth District’s decision in Chase v. Loisel, the Third District listed three reasons why a Facebook friendship without more was insufficient to disqualify a judge. First, the number of Facebook friends you have can be in the thousands. Second, you don’t always recall all your friends on Facebook. And third, the selection of Facebook friends is not truly “active” because of the algorithms and data mining technology’s, which ultimately influence your decisions. However, insisting that the court got it wrong by failing to adhere to the 2009 Opinion by the Florida Judiciary Ethics Advisory Committee, and follow the precedent established by the Fourth District, Herssein turned to the Supreme Court of Florida.

Oral arguments took place on June 7, 2018, during which time both parties advocated for their positions to the Court. Herssein stuck to their guns and urged the Court to reverse the Third District based on the 2009 Judicial Ethics Advisory Committee Opinion, which established that a Judge cannot be Facebook friends with attorneys who appear in front of them under the prohibitions of Canon 2b. (Canon 2b reads: “A Judge shall not … convey or permit others to convey the impression that they are in a special position to influence the judge.”). Their opposing party instead cited to the 2010 Judicial Ethics Advisory Committee Opinion, which established that a judicial candidate can add attorneys to their Facebook friends as a “networking” tool even if there was a possibility that they would later be up in front of the judge.

Throughout the course of the oral arguments the Supreme Court expressed their concerns regarding the complexities of the question. Interestingly enough, all of the judges on the panel admitted they were not on Facebook, yet nonetheless recognized that the mere allegation that a Facebook friendship exists may be a far stretch for having a judge disqualified from a case. Qualifying the possible answer to the question as an “it depends” statement, the judges struggled with the concept of what being a Facebook friend really meant. What appeared to be the biggest issue for the court to grapple with was whether a bright line rule banning judge and attorney Facebook friendships should exist. And as the oral arguments progressed, it became clear there could be no hard and fast rule. Many of the judges pointed out that a Facebook friend is no different from being friends in real life, while others argued there was a fundamental difference.

On November 15, 2018, the court in a 4-3 decision ultimately concluded that Judges and Attorneys could be friends on Facebook, and that such a connection was not grounds for disqualification. Similar to decisions made in other states, the Florida Supreme Court held that a Facebook friendship was not comparable to a traditional friendship in terms of causing a conflict of interest in a trial. Despite having an answer from the court, the greater questions that are left to tackle include: how is technology affecting the legal community, and what is the legal community doing to acclimate to these changes?

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