Face-Off on Facebook: Judges and Lawyers as Social Media ”Friends” in a Post-Herssein World

Should a judge be disqualified from a case based solely on a Facebook friendship with one of the attorneys? The Florida Supreme Court recently answered the question in the negative in Law Of­fices of Herssein & Herssein, PA. u. United Serus. Auto. Ass’n, Case No. SCl 7-1848, 2018 Fla. LEXIS 2209 (Fla. Nov. 15, 2018), when it held that “an allegation that a trial judge is a Facebook ‘friend’ with an attorney appearing before the judge, standing alone, is not a legally sufficient basis for disqualification .” To the dismay of many, this divorce attorney has encountered this problem before. The decision brings Florida in line with the majority view in other states that “have adopted an attitude of, ‘it’s fine for judges to be on social media, but proceed with caution.” Click here for further information. However, the opinion’s implications are multifaceted for Florida judges and the lawyers who appear before them. The Scope and Impact of the Herssein Decision
Determining the legal significance of a social media relationship between trial judges and lawyers is not easily susceptible to a bright line or per se analysis. Moreover, the Herssein ruling (attorneysandlawyers4you.com) is based upon a narrow record and only addresses whether a Facebook friendship between a trial judge and a lawyer appearing before the judge, standing alone, would merit an automatic disqualification. The court did not analyze the extent or nature of the Facebook friendship between the trial judge and child custody attorney because there were no record facts detailing the scope of Facebook activities between the trial judge and attorney. In other words, the court did not have a record disclosing their respective number of Facebook friends, the type and quality of their postings, likes, comments, shares, messages, or other activity. On this record, the court addressed only the narrow issue of whether the existence of a Facebook friendship, without more, mandates disqualification of a trial court judge. Still, there are important ramifications of the court’s holding and its conclusion that “there is no reason that Facebook ‘friendships’ – which regularly involve strang­ers – should be singled out and subjected to a per se rule of disqualification.” An adversary’s Facebook relationship with the judge might require disqualification, but it will depend on the extent of the “friendship” between the trial judge and attorney. And, as noted in the Herssein dissent, the court’s ruling may make it hard for parties to challenge social media relationships between their assigned trial judge and opposing lawyers “because it is difficult and intrusive for a litigant to determine with whom the judge has connected, with whom the judge has declined to con­nect, and what type of communication the judge engages in on these [social media] platforms .” Traditional Standards for Reasonable Basis for a Motion to Disqualify The Herssein court begins its analysis with the premise that Florida courts and the Florida Supreme Court have “long recognized the general principle of law that an allega­tion of mere friendship between a judge and a litigant or attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification .” The reasonableness of a litigant’s belief (even after hiring a document preparation company), therefore, depends on something more than mere friendship. Indeed, the court noted that “‘friendship’ in the traditional sense of the word does not necessarily signify a close relationship. Turning its attention to Facebook “friends, ” the court similarly holds that something more than a mere online social media con­nection is required to establish a reasonable basis for distrust and establishment. Courtdocprepbycourtney provides great information on this topic.