Facebooking Judge Gets Unfriended by the Court

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friend-1030x715Florida judges and lawyers on Facebook are in the news again. A Seminole County circuit court judge, who sent a friend request on Facebook to a litigant before her court, is now the subject of an opinion issued from Florida’s Fifth District appeal court.  This judge sent a Facebook “friend request” to the wife in a divorce action after she presided over the final hearing, but before issuing her ruling. Acting on the advice of her lawyer, the wife did not respond. The judge then issued her ruling, which the wife believed unfairly saddled her with the couple’s marital debt and gave her now ex-husband an excessive alimony award. The wife then moved to recuse the judge, arguing that the judge retaliated against her for refusing her friend request. Remarkably, the judge refused this request.

On appeal, the three judge panel issued an opinion stating the that trial judge was wrong to not grant the wife’s request. The court stated:

 “The trial judge’s efforts to initiate ex parte communication with a litigant is prohibited by the Code of Judicial Conduct and has the ability to undermine the confidence in a judge’s neutrality. The appearance of partiality must be avoided. It is incumbent upon judges to place boundaries on their conduct in order to avoid  situations such as the one presented in this case. “

The opinion makes for interesting reading. It notes that only one Florida appeal court has addressed the Facebook friend issue: Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012).  In that case, a criminal defendant moved to recuse the prosecutor, who was a Facebook friend with the judge. The court ruled that the Facebook friend relationship between the prosecutor and the judge “would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.”

The Domville court based its decision on an advisory opinion from a Florida Judicial Ethics Advisory Committee, which was published by the Florida Supreme Court in 2009. In that opinion, the committee answered this question:

Whether a judge may add lawyers who may appear before the judge as “friends” on a social networking site, and permit such lawyers to add the judge as their “friend.”

ANSWER: No.

This opinion created a bright line rule: Judges should not be “friending” lawyers that appear before them. So, the rulings of the Domville and Chase decisions should not bring any surprise to the bench and the bar. However, the Chase court questioned the sensibility of an absolute prohibition of judges “friending” lawyers:

“We have serious reservations about the court’s rationale in Domville. The word “Friend” is a term of art. 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 friendship. Other than the public nature of the internet, there is no difference  between a Facebook “friend” and any other friendship a judge might have. Domville’s logic would require disqualification in cases involving an acquaintance of a judge…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.”

Despite these comments, the Chase court quickly concluded that sending a friend request to a litigant while waiting to rule on her case crossed the line of judicial impartiality and propriety. Whatever the trial judge’s intentions may have been, such an action would undoubtedly create concern about the impartiality and methods of the decision maker.

So this is the latest word from Florida courts on the subject of judges, lawyers, and social media. The court’s opinion invites a thoughtful discussion of “the “true nature of a Facebook friendship” between judges and the lawyers in their community. I think most Facebook participants recognize the “Friend” status as essentially a handshake, an invitation into a social circle of exchange.  Do we really need to keep judges off Facebook, or limit their “friends?” I’m sure that our judges must sometimes feel isolated by the measures they must take to appear impartial. Being a judge is a difficult and sometimes lonely job. Certainly every judge has friends, but having “Friends” can quickly lead to trouble.

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