Hello everyone and welcome to this Ethics Alert which will discuss the recent denial of a Motion to Disqualify a Miami-Dade County Circuit Judge who was “friends” with opposing counsel on Facebook as well as the pending appeal. The case is Law Offices of Herssein and Herssein, P.A. d/b/a Herssein Law Group and Reuven T. Herssein v. United Services Automobile Association, Case No.: _______________, Lower Tribunal No.: 2015-015825-CA-43 (Florida Third District Court of Appeal) and the Motion for Writ of Prohibition is here: http://www.almcms.com/contrib/content/uploads/sites/292/2017/07/FILED-HLG-Petition-for-Writ-of-Prohibition-3D17-1421-1.pdf
According to the Petition, Miami-Dade Circuit Judge Beatrice Butchko is a “friend” of attorney Israel Reyes on Facebook. Reyes is also a former Miami-Dade judge who served with Judge Butchko and now has a private law firm in Coral Gables. Reyes represents a USAA employee in the case who retained separate counsel after Herssein apparently accused the employee of witness tampering. Herssein told the court that he planned to add the employee as a defendant and Reyes entered an appearance on behalf of the employee/non-party.
The Motion to Disqualify filed by the Herssein law firm on behalf of USAA alleged that the Facebook friendship between the judge and Reyes would cause Reyes to be able to influence the judge, and that she could not be impartial. The judge denied the motion, stating that it was legally insufficient. The law firm then filed the Petition for Writ of Prohibition with the Third District Court of Appeal.
The Florida Supreme Court’s Judicial Advisory Committee (JEAC) issued an opinion on this issue in 2009. The JEAC opinion states that judges should not send or accept social media friend requests from lawyers who may appear before them. The advisory opinion excludes campaign sites created by a committee. The opinion is JEAC Op. No. 2009-20 (11/17/09) and is here: http://www.jud6.org/legalcommunity/legalpractice/opinions/jeacopinions/2009/2009-20.htmlt The opinion states:
“The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge’s social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge. This is not to say, of course, that simply because a lawyer is listed as a “friend” on a social networking site or because a lawyer is a friend of the judge, as the term friend is used in its traditional sense, means that this lawyer is, in fact, in a special position to influence the judge. The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a “friend” on the social networking site, conveys the impression that the lawyer is in a position to influence the judge. The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.”
The JEAC applied the same analysis in a 2012 opinion related to professional networking websites, such as LinkedIn, and stated that there is no “meaningful distinction” between Facebook, and LinkedIn. The opinion is JEAC Op. No. 2012-12 (5/9/12) and is here: http://www.jud6.org/legalcommunity/legalpractice/opinions/jeacopinions/2012/2012-12.html. The opinions states:
The Committee continues to believe that the process of selecting persons to be connections on LinkedIn, and the communication by the judge of the list of the judge’s connections to others who the judge has approved, violates Canon 2B. The Committee does not believe that there is meaningful distinction in this regard between Facebook, and LinkedIn, a site used for professional networking, because the selection and communication process is the same on both sites.
The Fourth District Court of Appeal relied on the 2009 opinion in a 2012 decision disqualifying a judge in a criminal case for being Facebook friends with the prosecutor. The court found the social media connection could “create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.”
USAA argued that the 2012 Fourth DCA decision should not apply since it involved a criminal defendant who might have a reasonable fear of prejudice; however, the law firm is more sophisticated and should not have such a fear only because two judges who both previously sat as judges in Miami-Dade County are “friends” on Facebook.
Other states have also provided guidance on judicial social media use and Florida’s opinion is one of the most restrictive. California, Kentucky and New York have opined that judges may accept Facebook friend requests from lawyers who may appear before them under certain conditions. California permits judges to be friends with lawyers on Facebook if those pages are used only for professional activities, such as communications with members of a law school alumni group and other factors include how many friends the judge has, whether he or she declines some attorneys’ friend requests but accepts others and how often the attorney appears before the judge.
Bottom line: As this case illustrates, judges (and lawyers who may appear before them) would be well advised not to be “friends” or otherwise connect on social media and professional networking sites or, if they are already connected and a case is assigned, to immediately remove the connection and disclose it to all parties and provide an option to recuse if the party believes that it would potentially be prejudiced.
Be careful out there.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
29605 U.S. Highway 19, N., Suite 150
Clearwater, Florida 33761
Office (727) 799-1688
Fax (727) 799-1670