Law Offices of Herssein and Herssein, P.A., etc. v. United Services Automobile Association
Law Offices of Herssein and Herssein, P.A., etc. v. United Services Automobile Association
Opinion of the Court
In this case, we consider an issue regarding the legal sufficiency of a motion to disqualify a trial court judge on the basis of a Facebook "friendship." This Court granted jurisdiction to review the decision of the Third District Court of Appeal in Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Ass'n ,
We hold that an allegation that a trial judge is a Facebook "friend" with an attorney appearing before the judge, standing alone, does not constitute a legally sufficient basis for disqualification. We therefore approve the decision of the Third District in Herssein and disapprove the decision of the Fourth District in Domville on the conflict issue.
BACKGROUND
In the case on review, the Law Offices of Herssein and Herssein, P.A., and attorney Reuven Herssein "filed a motion to disqualify the trial judge." Herssein ,
The motion [to disqualify] is based in part on the fact that [Israel] Reyes[-an attorney appearing before the trial judge on behalf of a potential witness and potential party in the pending litigation-]is listed as a "friend" on the trial judge's personal Facebook page. In support of the motion, Iris J. Herssein and Reuven Herssein, president and vice president of the Herssein Firm, signed affidavits in which they swore, "[b]ecause [the trial judge] is Facebook friends with Reyes, [the executive's] personal attorney, I have a well-grounded fear of not receiving a fair and impartial *892trial. Further, based on [the trial judge] being Facebook friends with Reyes, I ... believe that Reyes, [the executive's] lawyer has influenced [the trial judge]."
The Third District expressly acknowledged that "Petitioners raise[d] three grounds" for disqualification on review.
At the outset, the Third District cited authority from this Court and the First District Court of Appeal supporting the longstanding 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 Third District acknowledged that "this authority does not foreclose the possibility that a relationship between a judge and a lawyer may, under certain circumstances, warrant disqualification." Id. at 410. The Third District noted that the Fourth District in Domville "held that recusal was required when a judge was a Facebook 'friend' with the prosecutor" based on "a 2009 Judicial Ethics Advisory Committee Opinion." Id. (citing Fla. JEAC Op. 2009-20 (Nov. 17, 2009) ). The Florida Judicial Ethics Advisory Committee ("JEAC") advised in its 2009 opinion that judges were prohibited from adding lawyers who appear before them as "friends" on their Facebook pages or from allowing lawyers who appear before them to add them as "friends" on the lawyers' Facebook pages based on the JEAC's conclusion that "a judge's selection of Facebook 'friends' necessarily 'conveys or permits others to convey the impression that they are in a special position to influence the judge' " in violation of Canon 2B of the Florida Code of Judicial Conduct. Id. at 412 (quoting Fla. JEAC Op. 2009-20 (Nov. 17, 2009) ). In support of its conclusion, the JEAC zeroed in on the "selection and communication process" of Facebook "friendship." Id. at 410 (quoting Fla. JEAC Op. 2009-20 (Nov. 17, 2009) ). The JEAC reaffirmed its advice in 2010. Id. (citing Fla. JEAC Op. 2010-06 (Mar. 26, 2010) ).
The Third District went on to explain that the Fifth District in Chace v. Loisel ,
The Third District agreed with Chace on this point for three reasons. Id. at 411. "First, as the Kentucky Supreme Court noted, 'some people have thousands of Facebook "friends." ' " Id. (quoting Sluss v. Commonwealth ,
*893
The Third District ultimately "h[eld] 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.' " Id. Accordingly, the Third District denied the petition for writ of prohibition. Id. The Third District acknowledged that its holding was "in conflict" with Domville but did not certify conflict. Id.
ANALYSIS
The conflict issue presents a pure question of law that is subject to de novo review. See Daniels v. State ,
A. Legal Standard for Disqualification
"A motion to disqualify is governed substantively by section 38.10, Florida Statutes ... and procedurally by Florida Rule of Judicial Administration 2.330." Gregory v. State ,
"The standard of review of a trial judge's determination on a motion to disqualify is de novo." Parker v. State ,
B. Traditional "Friendship"
In the traditional sense, a "friend" is a person attached to another person by feelings of affection or esteem. See, e.g. , Webster's Third New International Dictionary 911 (1993 ed.) (defining the term "friend" as "one that seeks the society or welfare of another whom he holds in affection, respect, or esteem"); The American Heritage Dictionary 703 (5th ed. 2011) (defining the term "friend" as "[a] person whom one knows, likes, and trusts"); Shorter Oxford English Dictionary 1035 (6th ed. 2007) (defining the term "friend" as "[a] person joined by affection and intimacy to another").
But "friendship" in the traditional sense of the word does not necessarily signify a close relationship. It is commonly understood that friendship exists on a broad spectrum: some friendships are close and others are not. See, e.g. , Black's Law Dictionary 667 (6th ed. 1990) (defining the term "friend" as "[v]arying in degree from greatest intimacy to acquaintance more or less casual"); Black's Law Dictionary 600 (5th ed. 1979) (same); Black's Law Dictionary 795 (4th ed. 1951) (same); see also Clark v. Campbell ,
It follows that the mere existence of a friendship between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship. No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are friends of an indeterminate nature. It is for this reason that Florida courts-including this 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. See, e.g. , MacKenzie ,
*895Adkins v. Winkler ,
With this legal framework in mind, we now turn to address the Facebook "friendship" issue.
C. Facebook "Friendship"
Facebook was officially "launched on February 4, 2004." Facebook, Inc. v. DLA Piper LLP (US) ,
Facebook provides users with several means of communicating with one another. Users can send private messages to one or more users. Users can also communicate by posting information to their Facebook "wall," which is part of each user's Profile Page. A Facebook "wall post" can include written comments, photographs, digital images, videos, and content from other websites.
Shaw v. Young ,
"Facebook users [primarily] create online profiles to share information about themselves with other Facebook users." Sublet v. State ,
A Facebook user's "friend" list appears on his profile page. See Strunk v. State ,
*896In general, "Facebook users may opt to make all or part of their Facebook information private ...." Sluss ,
We now come to the crux of the matter: what is the nature of Facebook "friendship?" "The word 'friend' on Facebook is a term of art." Chace ,
A Facebook "friend" may or may not be a "friend" in the traditional sense of the word. But Facebook "friendship" is not-as a categorical matter-the functional equivalent of traditional "friendship." The establishment of a Facebook "friendship" does not objectively signal the existence of the affection and esteem involved in a traditional "friendship." Today it is commonly understood that Facebook "friendship" exists on an even broader spectrum than traditional "friendship." Traditional "friendship" varies in degree from greatest intimacy to casual acquaintance; Facebook "friendship" varies in degree from greatest intimacy to "virtual stranger" or "complete stranger." Chace ,
So it is regularly the case that Facebook "friendships" are more casual and less permanent than traditional friendships. See, e.g. , Williams v. Scribd, Inc. , No. 09CV1836-LAB WMC,
It is therefore undeniable that the mere existence of a Facebook "friendship," in and of itself, does not inherently reveal the degree or intensity of the relationship between the Facebook "friends." Since the creation of a Facebook "friendship" in itself does not signal the existence of a traditional "friendship," it certainly cannot signal the existence of a close or intimate relationship. See McGaha v. Commonwealth ,
In short, the mere fact that a Facebook "friendship" exists provides no significant information about the nature of any relationship between the Facebook "friends." Therefore, the mere existence of a Facebook "friendship" between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship. No reasonably prudent person would fear that she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are Facebook "friends" with a relationship of an indeterminate nature.
As we now explain, our holding is in line with the majority of state judicial discipline bodies and judicial ethics advisory committees-which we refer to collectively as state ethics committees-that have considered whether Facebook "friendship" between a judge and an attorney appearing before the judge creates the appearance of impropriety under their respective states' judicial codes of conduct.
D. State Ethics Committees
The clear majority position is that mere Facebook "friendship" between a judge and an attorney appearing before the judge, without more, does not create the appearance of impropriety under the applicable code of judicial conduct. See, e.g. , Ariz. JEAC Op. 14-01, at 4 (Aug. 5, 2014); Ky. Jud. Ethics Comm. Op. JE-119, at 2-3 (Jan. 20, 2010); Md. Jud. Ethics Comm. Op. 2012-07, at 5 (June 12, 2012); Mo. Ret., Removal, & Discipline Comm'n Op. 186, at 1 (Apr. 24, 2015); N.M. Jud. Conduct Adv. Comm. Op. Concerning Soc. Media, at 13-14 (Feb. 15, 2016); N.Y. JEAC Op. 13-39 (May 28, 2013); Ohio Bd. of Comm'rs on Grievances & Discipline Op. 2010-7, at 1-2, 8-9 (Dec. 3, 2010); Utah JEAC Op. 12-01, at 4-7 (Aug. 31, 2012). In other words, the majority position is that the mere existence of a Facebook "friendship" between a judge and an attorney appearing before the judge, without more, does not reasonably convey or permit others to convey the impression that they are in a special position to influence the judge in violation of the applicable code of judicial conduct.
The minority position is that Facebook "friendship" between a judge and an attorney appearing before the judge, standing alone, creates the appearance of impropriety because it reasonably conveys or permits others to convey the impression that they are in a special position to influence the judge in violation of the applicable code of judicial conduct. See, e.g. , Cal.
*898Judges Ass'n Jud. Ethics Comm. Op. 66, at 1, 10-11 (Nov. 23, 2010); Conn. Jud. Ethics Comm. Op. 2013-06 (Mar. 22, 2013); Fla. JEAC Op. 2009-20 (Nov. 17, 2009); Mass. Jud. Ethics Comm. Op. 2011-6 (Dec. 28, 2011); Okla. Jud. Ethics Adv. Pan. 2011-3 (July 6, 2011).
Florida's JEAC was one of the first to advise that judges were prohibited from adding attorneys who appear before them as "friends" on their Facebook page or from allowing attorneys who appear before them to add them as "friends" on the attorneys' Facebook pages based on the JEAC's conclusion that a judge's selection of Facebook "friends" necessarily "conveys or permits others to convey the impression that they are in a special position to influence the judge" in violation of Canon 2B of the Florida Code of Judicial Conduct. Fla. JEAC Op. 2009-20 (Nov. 17, 2009).
The overarching concern of the JEAC is that a reasonably prudent person would fear that he or she could not receive a fair and impartial trial based solely on the fact that a judge and an attorney appearing before the judge are Facebook "friends" of an indeterminate nature. For the reasons we have explained, we conclude that concern is unwarranted. The correct approach is that taken by the majority position, which recognizes the reality that Facebook "friendship," standing alone, does not reasonably convey to others the impression of an inherently close or intimate relationship that might warrant disqualification.
In its 2009 Opinion, the JEAC relied on the "selection and communication process" of Facebook "friendship" in support of its conclusion that Facebook "friendship" between a judge and an attorney appearing before the judge reasonably "convey[s] or permit[s] others to convey the impression that they are in a special position to influence the judge." Fla. JEAC Op. 2009-20 (Nov. 17, 2009) (quoting Fla. Code Jud. Conduct, Canon 2B). But by focusing on the public nature of Facebook "friendship," the JEAC missed the intrinsic nature of Facebook "friendship." It is commonly understood that traditional "friendship" involves a "selection and communication process," albeit one less formalized than the Facebook process. People traditionally "select" their friends by choosing to associate with them to the exclusion of others. And people traditionally "communicate" the existence of their friendships by choosing to spend time with their friends in public, introducing their friends to others, or interacting with them in other ways that have a public dimension. Nevertheless, this Court has consistently recognized 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. See, e.g. , MacKenzie ,
CONCLUSION
In some circumstances, the relationship between a judge and a litigant, lawyer, or other person involved in a case will be a basis for disqualification of the judge. Particular friendship relationships may present such circumstances requiring disqualification. But our case law clearly establishes that not every relationship characterized as a friendship provides a basis for disqualification. And there is no reason that Facebook "friendships"-which regularly involve strangers-should be singled out and subjected to a per se rule of disqualification.
We approve Herssein and disapprove Domville .
It is so ordered.
POLSTON, LABARGA, and LAWSON, JJ., concur.
LABARGA, J., concurs with an opinion.
PARIENTE, J., dissents with an opinion, in which LEWIS and QUINCE, JJ., concur.
The Petitioners have presented certain other issues that we decline to address.
Of course, this general rule of law does not suggest that a friendship between a judge and an attorney of a determinate nature cannot constitute a close or intimate relationship that warrants disqualification. Nor does it foreclose the possibility that a friendship between a judge and an attorney of an indeterminate nature may, in conjunction with some additional factor, constitute legally sufficient grounds for disqualification.
Canon 2B of the Florida Code of Judicial Conduct provides that a judge shall not "convey or permit others to convey the impression that they are in a special position to influence the judge."
Concurring Opinion
I concur with the majority opinion. However, I write to strongly urge judges not to participate in Facebook. For newly elected or appointed judges who have existing Facebook accounts, I encourage deactivation of those accounts.
Nevertheless, as noted by the dissent, participation in Facebook by members of the judiciary "is fraught with risk that could undermine confidence in the judge's ability to be a neutral arbiter." Dissenting op. at 900. This is deeply concerning because judges are to decide cases solely upon the facts presented to them and the law. The public and the parties expect nothing less. Therefore, judges must avoid situations that could suggest or imply that a ruling is based upon anything else. Facebook "friendships" fall across a broad spectrum, from virtual stranger to close, personal friend. Because the relationships between judges and attorneys can fall anywhere on that spectrum, judges who elect to maintain Facebook "friendships" with attorneys who have any potential to appear before them are, quite simply, inviting problems. The Honorable Catherine Shaffer, a superior court judge in Washington State and current president of the American Judges Association, aptly states that while judges must decide for themselves whether to participate in social media "with a careful eye to the ethical requirements *900of their own jurisdiction," she "steer[s] clear" of it because "misperception is all too easy." Are Facebook Friends Really Friends? National Center for State Courts (Aug. 29, 2018), available at https://content.govdelivery.com/accounts/USNCSC/bulletins/209842b.
I recognize that in this day and age, Facebook may be the primary means some judges use to stay in touch with family members, actual friends, or people with whom they have reconnected after many years. If this is the case, then at the very least, judges should carefully review their Facebook accounts and limit their "friendships" to cover only such individuals. However, I agree with Judge Shaffer that the safest course of action is to not participate in Facebook at all.
When a person assumes the significant responsibility of serving as a member of the judiciary, they must "accept restrictions on [their] conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly." Fla. Code Jud. Conduct, Canon 2A cmt. The dissent is absolutely correct that "public trust in the impartiality and fairness of the judicial system is of the utmost importance." Dissenting op. at 904.
Judge Shaffer also expressed the belief that "it is extraordinarily difficult to prevent improper ex parte contacts." Are Facebook Friends Really Friends? National Center for State Courts (Aug. 29, 2018), available at https://content.govdelivery.com/accounts/USNCSC/bulletins/209842b.
Dissenting Opinion
I dissent. I would adopt the view of the Fourth District Court of Appeal in Domville v. State ,
Judges do not have the unfettered social freedom of teenagers. Central to the public's confidence in the courts is the belief that fair decisions are rendered by an impartial tribunal. Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance. Unlike face to face social interaction, an electronic blip on a social media site can become eternal in the electronic ether of the internet. Posts on a Facebook page might be of a type that a judge should not consider in a given case. The existence of a judge's Facebook page might exert pressure on lawyers or litigants to take direct or indirect action to curry favor with the judge. As we recognized in the panel opinion, a person who accepts the responsibility of being a judge must also accept limitations on personal freedom.
Domville , 125 So.3d at 179 (emphasis supplied) (Gross, J., concurring specially). I wholeheartedly agree.
While Facebook and other social media sites have become more sophisticated, recent history has shown that a judge's involvement with social media is fraught with risk that could undermine confidence in the judge's ability to be a neutral arbiter. For these reasons, I would adopt a strict rule requiring judges to recuse themselves whenever an attorney with whom they are Facebook "friends" appears before them. This rule does little to limit the judge's personal liberty, while advancing the integrity of the judicial *901branch as the one branch of government that is above politics.
Regardless of the appropriate parameters for a future amendment to the Code of Judicial Conduct relating to use of Facebook and other social media, it is clear that the judge in this case should have recused herself because, at the time of the recusal motion, the only binding opinion was the Fourth District's in Domville . Domville expressly required judges to recuse themselves from cases where they were Facebook friends with the lawyer,
More importantly and most respectfully, in my view, any attempt to equate Facebook "friendship" with traditional friendship ultimately fails. The fact that both are called "friendship" does not mean they are comparable or can be evaluated in the same manner. Further, obtaining the information required to establish a good faith basis to file a motion for recusal would require discovery that is both impractical and potentially invasive of both the judge's and attorney's privacy.
The premise of the majority opinion is that Facebook friendships and traditional friendships are analogous. But, equating friendships in the real world with friendships in cyberspace is a false equivalency. The existence of a Facebook "friendship" may reveal far more information regarding the intimacy and the closeness of the relationship than the majority would assign it. For example, as the majority explains, once a person becomes "friends" with another Facebook user, that person gains access to all of the personal information on the user's profile page-including photographs, status updates, likes, dislikes, work information, school history, digital images, videos, content from other websites, and a host of other information-even when the user opts to make all of his or her information private to the general public. Majority op. at 894-96; see also Daniel Smith, When Everyone is the Judge's Pal: Facebook Friendship and the Appearance of Impropriety Standard , 3 Case W. Res. J. L. Tech. & Internet 183, 200-06 (2011). Additionally, the ease of access to the "friend's" information allows Facebook "friends" to be privy to considerably more information, including potentially personal information, on an almost daily basis.
Social media communication is quickly replacing other modes of casual communication. See Smith, supra , at 200-06. Moreover, information conveyed on social media can range from the frivolous-gossip and what someone ate for dinner-to the meaningful-updates on family, friends, or even world events.
Facebook also gives the public a new way to scrutinize public figures. Politicians, for instance, have become painfully aware of the downsides of maintaining an Internet persona. Numerous candidates have been forced to deal with unbecoming photographs coming to the public's attention through either their own Facebook use or postings by other users. One candidate even found himself apologizing for his college-aged son's unremarkable underage drinking.
Id. at 188-89 (footnotes omitted).
Instead of attempting to compare social media communication and friendship to traditional communication and friendship when determining the appropriate social media policy for the judiciary, this Court should consider the elusive and public nature of Facebook "friendship," as both the Fourth District and the Florida Judicial Ethics Advisory Committee (JEAC) did. See Domville ,
Florida's Code of Judicial Conduct requires that judges "avoid impropriety and the appearance of impropriety in all of the judge's activities." Fla. Code of Jud. Con. Canon 2. Additionally, Canon 2B states: "A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge ." Fla. Code Jud. Conduct, Canon 2B (emphasis supplied). The commentary to Canon 2A explains:
A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge's conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
As the JEAC concluded:
The Committee notes, in coming to this conclusion, that social networking sites are broadly available for viewing on the internet. Thus, it is clear that many persons viewing the site will not be judges and will not be familiar with the Code, its recusal provisions, and other requirements which seek to assure the judge's impartiality. However, the test for Canon 2B is not whether the judge intends to convey the impression that another person is in a position to influence the judge, but rather whether the message conveyed to others, as viewed by the recipient, conveys the impression that someone is in a special position to influence the judge. Viewed in this way, the Committee concludes that identifying lawyers who may appear before a judge as "friends" on a social networking site, if that relationship is disclosed to anyone other than the judge by virtue of the information being available for viewing on the internet, violates Canon 2(B).
Fla. JEAC Op. 2009-20 (Nov. 17, 2009).
This dissent should not be viewed as an attack on the responsible use of social media. I emphasize, as did the JEAC, that the selection and rejection function is what causes the potential for the appearance of impropriety, after the judge has established the social networking profile that affords the judge the ability to accept or reject "friends." As the JEAC explained,
With regard to a social networking site, in order to fall within the prohibition of Canon 2B, the Committee believes that three elements must be present. First, the judge must establish the social networking page. Second, the site must afford the judge the right to accept or reject contacts or "friends" on the judge's page, or denominate the judge as a "friend" on another member's page. Third, the identity of the "friends" or contacts selected by the judge, and the judge's having denominated himself or herself as a "friend" on another's page, must then be communicated to others. Typically, this third element is fulfilled because each of a judge's "friends" may see on the judge's page who the judge's other "friends" are. Similarly, all "friends" of another user may see that the judge is also a "friend" of that user. It is this selection and communication process, the Committee believes, that violates Canon 2B, because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge.
Clearly, social media plays an important role in today's society. For example, this *903Court and The Florida Bar as well as many other groups have public Facebook pages that are useful to disseminate information and enhance the role of judges, lawyers, and the judiciary in the public domain. Significantly, individuals may only "follow" these pages, but cannot become Facebook "friends" with either organization. This allows the general public to be privy to any and all information posted on the page without the appearance of impropriety that accompanies self-selection. Judges could, likewise, create pages that follow this model.
As a practical matter, it is unrealistic to require discovery into the extent of social media "friendship" as a prerequisite to recusal before a valid motion may be filed. An individual judge's social media, whether it is Facebook, LinkedIn, Instagram, or any other site, is fraught with concerns for the average litigant 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 platforms.
If the Court is declining to follow the JEAC advisory opinions, then I urge that it at least adopt parameters for judges to follow when engaging with social media, similar to those adopted in California.
terminate permanently the existing account and start anew. If this course of action cannot be accomplished, the Judicial Official should edit his/her profile page upon reactivation to ensure that it is in compliance with the conditions of this opinion in every respect. This includes, but is not limited to, removing inappropriate contacts, photos, links, comments, petitions, "friending," and "Check In" postings. A Judicial Official *904should monitor closely new developments with respect to the [electronic social media] and keep abreast of applications instituted by the site managers. The Judicial Official also should monitor his/her participation with respect to maintaining appropriate dignity as well as insuring the precedence of the judicial office.
See Conn. Jud. Ethics Comm. Op. 2013-06 (Mar. 22, 2013).
Judges in Florida are non-partisan and held to the strictest compliance with the Code of Judicial Conduct to avoid even the appearance of impropriety. Judges, unlike the general public and even other elected officials, accept the responsibility when they take the oath of office and don their black robes that many prior activities may have to be limited for the purpose of maintaining the integrity of our justice system. One of these activities should include the use of social media to communicate, either actively or passively, with attorneys who appear before them. Because public trust in the impartiality and fairness of the judicial system is of the utmost importance, this Court should err on the side of caution.
CONCLUSION
The bottom line is that because of their indeterminate nature and the real possibility of impropriety, social media friendships between judges and lawyers who appear in the judge's courtroom should not be permitted. Under this rule, the opposing litigant would not be required to delve into how close the Facebook friendship may be, the judge avoids any appearance of impropriety, and Florida's courts are spared from any unnecessary questions regarding the integrity of our judiciary. Regardless, in this case, the judge was required to recuse herself because of binding precedent. Thus, I would quash the Third District Court of Appeal's decision in Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Ass'n ,
Accordingly, I dissent.
LEWIS and QUINCE, JJ., concur.
Following its opinion in Domville , the Fourth District certified the following question of great public importance:
Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook "friend," would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant's motion for disqualification should be granted?
Domville v. State ,
"Following" does not involve or require acceptance by the person; it only allows you to see what that person decides to post on his or her public "Wall." If you choose to follow someone, that person's public posts will be automatically delivered to your daily feed. Conversely the person being followed will not see what the followers post (unless he or she follows them back), and the followers will not be able to access anything else that the person keeps on his or her private page. See Follow , Facebook Help Ctr., https://www.facebook.com/help/382751108453953/?ref=u2u (last visited Aug. 30, 2018).
The California Judicial Ethics Committee considers the following factors in determining whether the attorney is in a special position to influence the judge and cast doubt on the judge's ability to be impartial:
1) The nature of the social networking site The more personal the nature of the page, the greater the likelihood that including an attorney would create the appearance that the judge would be in a special position to influence the judge, or cast doubt on the judge's ability to act impartially.
2) The number of "friends" on the page The greater the number of "friends" on the judge's page the less likely it is one could reasonably perceive that any individual participant is in a position to influence the judge.
3) The judge's practice in determining whom to include As with the number of people on the page, the more inclusive the page the less likely it is to create the impression that any individual member is in a special position to influence the judge.
4) How regularly the attorney appears before the judge If the likelihood that the attorney will actually appear before the judge is low, the more likely it is that the interaction would be permissible. On the other hand, if the attorney appears frequently before the judge the interaction is less likely to be permissible.
See Cal. Jud. Ethics Comm. Op. 66, at 8 (Nov. 23, 2010).
Reference
- Full Case Name
- LAW OFFICES OF HERSSEIN AND HERSSEIN, P.A., Etc., Et Al., Petitioners, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Respondent.
- Cited By
- 11 cases
- Status
- Published