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No Recusal Required Based on Facebook ‘Friend’ Status

Posted on January 2nd, 2018

Photo of the Scales of Justice and a Gavel

Our blog explains electronic discovery and case lawIn Law Offices of Herssein and Herssein, P.A. v. United Servs. Auto. Ass’n, No. 3D17-1421 (Fla. 3d DCA Aug. 23, 2017) the Herssein Firm (“Herssein”) sued its former client, United Services Automobile Association (“USAA”), for breach of contract and fraud. Herssein accused one of USAA’s executives of witness tampering. USAA hired Israel Reyes (“Reyes”), an ex-circuit court judge, to represent the executive.

On June 8, 2017, the Herssein Firm filed a motion to disqualify the trial judge. The motion is based in part on the fact that Reyes is listed as a “friend” on the trial judge’s personal Facebook page. The trial court denied the disqualification motion, and the Herssein Firm filed a petition for writ of prohibition.

On appeal, the court considered whether a reasonably prudent person would fear that he could not get a fair and impartial trial because the judge is a Facebook friend with a lawyer who represents a potential witness and party to the lawsuit. The Court states that in general, allegations of mere ‘friendship’ with an attorney have been deemed insufficient to disqualify a judge. The trial court judge, while denying the request for a recusal explained that if friendship with a lawyer or member of a firm was basis for disqualification, most judges in rural areas and many cites would be subject to disqualification in a large number of cases.

The Courts are divided on this question. The Fourth District held that recusal was required when a judge was a Facebook friend with the prosecutor, and advised that judges were prohibited from adding lawyers who appear before them as friends on their Facebook page or from allowing lawyers who appear before them to add them as friends on the lawyers’ Facebook pages. It focused on the fact that a judge on Facebook has an active role in accepting or rejecting potential friends, calling the selection a communication process that conveys the impression that Facebook friends are in a special position to influence the judge.

The Fifth District disagreed, explaining that friend is a misnomer, and the term would be more appropriately defined as acquaintance. A Facebook friendship does not necessarily signify the existence of a close relationship. Requiring disqualification in such cases does not reflect the true nature of a Facebook friendship.

This Court agrees with the Fifth District that a Facebook friendship does not necessarily signify the existence of a close relationship. First, some people have thousands of Facebook friends, and it is extreme to force a judge to recuse himself because he was allegedly Facebook friends with a potential witness, again, because the definition of ‘friend’ on Facebook should be thought of as acquaintance. Second, many Facebook members do not even recall whom they have accepted as friends and vice versa.  Third, many Facebook friends are selected based upon Facebook’s data-mining technology rather than personal interactions.

Acceptance as a Facebook friend may once have given the impression of close friendship. Currently, the designation of a person as a “friend” on Facebook does not differentiate between a close friend and a distant acquaintance. Because a friend on a social networking website is not necessarily a friend in the traditional sense of the word, the court held 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. Therefore, the writ of prohibition is denied.

ILS – Plaintiff ESI Discovery Experts

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