NEWS

New Decision: Judicial Recusal/Facebook (Law Offices of Herssein v. U.S.A.A.)
November 26, 2018

Paraphrasing Gertrude Stein’s a rose is a rose is a rose, Thursday the Supreme Court of Florida issued a fractured decision on whether a friend and friend in Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Ass’n, Case No. SC17-1848 (Fla. November 15, 2018).

During a breach of contract action, the Herssein law firm moved to disqualify the trial court judge based in part on the judge’s personal “Facebook” page showing opposing counsel as a “friend”. The intermediate appellate court held that a Facebook friendship standing alone does not create a traditional “friend” denied the petition. Law Offices of Herssein & Herssein, P.A. v. United Services Automobile Ass’n, 229 So. 3d 408 (Fla. 3d DCA 2017). The Third District acknowledged that the Fourth District Court of Appeal required recusal when a trial judge was a Facebook friend with the prosecutor in the case before the trial judge, the Fourth District relying on a 2009 judicial ethics advisory committee opinion, Fla. JEAC Op.2009-20 (Nov. 17, 2009). Domville v. State, 103 So.3d 184 (Fla. 4th DCA 2012),

The Supreme Court began its analysis reciting the threshold for recusal grounded in Fla.R.J. Admin. 2.330, and case law threshold of whether “a reasonable prudent person in fear of not receiving a fair and impartial trial” and “the fear must be objectively reasonable.” The court differentiated a “traditional” friendship, utilizing dictionary definitions including characteristics of affection, esteem, respect, trust or intimacy, and recognized there is a “spectrum” of relationships and friendships. Traditionally, 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 before the judge are friends of an indeterminate nature.”

Tackling the new issues of technology created by Facebook, the court discussed that a Facebook friend is but a person who is “digitally connected, and is not the ‘functional equivalent of a traditional ‘friendship’” and may mean a relationships somewhere on the broad spectrum “from greatest intimacy to casual acquaintance.” The friending process “provides no significant information about the nature of any relationship between Facebook “friends’”.

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.

Thus, the Third District’s decision in Herssein was approved, rejecting the writ of prohibition, and the Supreme Court disapproved the Fourth District’s decision in Domville.

Justice Labarga concurred but “strongly urged judges not to participate in Facebook.”

Justice Pariente issued a strong dissent highlighting the requirement of confidence in a judge’s ability to appear neutral, noting that Facebook offers an option of “following” that is different from being a “friend,” stating “public trust and the impartiality and fairness of the judicial system is of upmost importance, this court should air on the side of caution.”

Michael J. Gelfand

Past Chair

Real Property, Probate and Trust Law Section

of The Florida Bar

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Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section

© 2018 Michael J. Gelfand

Michael J. Gelfand

Florida Bar Board Certified:

Real Estate Attorney

Condominium & Planned Development Law

Florida Supreme Court Certified Mediator:

Civil Circuit Court & Civil County Court

Fellow, American College of Real Estate Attorneys

The only thing necessary for the triumph of evil is for good men to do nothing.

- Edmund Burke


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