The Third District Florida court of appeals got some press this summer when it affirmed an order refusing to disqualify a judge who was Facebook friends with one of the lawyers in a case before her. The court wrote that “a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word,” and therefore being “friends” was not disqualifying, “without more” — namely a well-grounded fear of partiality.
Now, the law firm on the losing end of that case has asked the Florida Supreme Court to accept an appeal, citing a split on the issue among Florida state appellate courts.
Cases and ethics opinions — some not very friendly
Some of the cases and ethics opinions on Facebook friendships between judges and lawyers have been friendly to the concept, in a qualified way — that is, when there is no other factor that would suggest impropriety or possible lack of impartiality on the part of the judge.
For instance, the professional conduct board in my home state of Ohio advised in a 2010 opinion that nothing in the state’s judicial code bars a judge from being friends – online or offline – with lawyers, even those who appear before the judge. However, the board said, a judge should disqualify himself or herself when the judge’s social networking relationship with a lawyer creates bias or prejudice concerning the lawyer for a party. New York has a similar judicial ethics opinion.
Somewhat similarly, in Youkers v. Texas, the state criminal appeals court ruled in 2013 that a Facebook friendship between the victim’s father and the presiding trial judge was insufficient to show bias as a basis for recusal.
But ethics opinions in some other jurisdictions are more restrictive, and bar a judge from being Facebook friends with lawyers who are currently appearing before them (California) or even may appear before them (Massachusetts).
In Florida, the lower courts of appeal have split. The Third District court of appeals, located in Miami, issued the ruling that is the subject of the state supreme court petition. In its opinion, it acknowledged that its ruling, declining to disqualify on the basis of a Facebook friendship between the judge and the lawyer for one of the parties, was at odds with a 2012 decision of the Fourth District. The court there ruled that Facebook friendships between judges and lawyers violated the canons of judicial ethics and created the appearance of impropriety.
The Third District’s opinion agreed with a 2014 decision of the Fifth District, which noted (in dicta) that without more, being Facebook friends “does not necessarily signify the existence of a close relationship.” (The Fifth District case involved a party, not a lawyer, and affirmed disqualification of the judge where he tried to initiate a FB friendship while the domestic relations case was ongoing).
According to the Hebrew Bible, King Solomon said, “Love a friend at all times.” (Pr. 17:17.) That may or may not be good advice when it comes to judges and their Facebook friends. In any event, this is an area where continuing ethics developments bear watching, including in the Sunshine State.