In Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Association, No. 3D17-1421, 2017 WL 3611661 (Fla, Dist. Ct. App. Aug. 23, 2017), the Third District Court of Appeal for the State of Florida was asked to decide whether a judge presiding over a case who was “friends” on Facebook with an attorney representing a potential witness and party in the same case should recuse himself. The court concluded that recusal was not required. What was even more interesting, however, was the court’s analysis of the nature of relationships online involving social media.
In this case, the Herssein law firm sued its former client, USAA, for breach of contract and fraud. In the litigation, the law firm accused a former USAA executive of witness tampering and indicated he was a potential witness and defendant. In response to the allegations, USAA retained an ex-circuit court judge, Israel Reyes, to represent the executive. Reyes, however, was “friends” on Facebook with the judge presiding over the matter, which raised concerns for the Herssein law firm about the judge’s impartiality and they sought to disqualify the judge from presiding over the case.
The standard for disqualification of a judge in Florida is whether “the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial.” The court started its analysis by noting that an allegation of mere “friendship” between a judge and attorney is not legally sufficient to justify disqualification under Florida law. Despite this baseline as a starting point, the court acknowledged that under certain circumstances the relationship between a judge and lawyer may warrant disqualification, citing as an example a case where the judge and prosecutor were “friends” on Facebook.
The court examined a number of cases where the issue of recusal was addressed in light of social media activity. One case in particular noted that the term “friend” on Facebook was a “term of art,” explaining:
A number of words or phrases could more aptly describe the concept, including acquaintance and, sometimes, virtual stranger. A Facebook friendship does not necessarily signify the existence of a close relationship. Other than the public nature of the internet, there is no difference between a Facebook “friend” and any other friendship a judge might have. [A prior court decision]’s logic would require disqualification in cases involving an acquaintance of a judge. Particularly in smaller counties, where everyone in the legal community knows each other, this requirement is unworkable and unnecessary. Requiring disqualification in such cases does not reflect the true nature of a Facebook friendship and casts a large net in an effort to catch a minnow.
The court in Herssein agreed with this prior court’s decision in that “[a] Facebook friendship does not necessarily signify the existence of a close relationship.” The court reached this conclusion for three reasons. First, citing cases from Kentucky and Tennessee, the court noted that some people have thousands of Facebook “friends” (the relevant party in one case had nearly 2,000 “friends” and, in the other case, one person had over 1,500 “friends” while another person had more than 4,900 “friends”). Second, the court concluded that “Facebook members often cannot recall every person they have accepted as ‘friends’ or who have accepted them as ‘friends.’” To support this conclusion, the court cited as an example a case from Pennsylvania where a student who had over 1,000 “friends” did not even know he was “friends” on Facebook with another student he was accused of assaulting. Third, the court found that many Facebook “friends” are selected based on Facebook’s data-mining technology, as opposed to personal interactions. In this regard, the court found that Facebook data-mines a member’s current list of “friends,” uploaded contacts from smart phones and computers, emails, names tagged in uploaded photographs, internet groups, networks such as schools and employers, and other publicly and privately available information, which is then analyzed by Facebook’s proprietary algorithms to predict associations and suggest to the member “people you may know” as potential “friends.” While the court acknowledged that these data-mining efforts are “revolutionizing modern marketing and national security systems” and can be “a powerful tool to build personal and professional networks,” they have “nothing to do with close or intimate friendships of the sort that would require recusal.”
The court acknowledged that some Facebook “friends” certainly constitute friends in “the classic sense” where there is particular affection and loyalty. The court also determined that many Facebook “friends” do not constitute friends in that classic sense, concluding that most Facebook “friends” “probably” are a “casual friend; an acquaintance, and old classmate, a person with whom the member shares a hobby; a ‘friend of a friend;’ or even a local celebrity like a coach.”
“Because a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word, [the court] h[e]ld 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.’” The court further noted that its conclusion conflicts with the court’s opinion in Domville v. State, 103 So. 3d 184 (Fla, Dist. Ct. App. 2012).
The court’s decision in Herssein is significant because it gave some legal definition to what constitutes a Facebook “friend.” For lawyers and judges, this case bears particular significance. In this regard, the mere connection between an attorney, party, or witness and a presiding judge does not alone warrant recusal, but it does potentially open a line of inquiry into the nature of the relationship. On a broader scale, it is unclear whether the definitions and conclusions from this case will influence the evolving area of law concerning social media’s effects on the legal protections afforded to customer lists as trade secrets, which is discussed in this article – published and posted last year.