The Judge, the Lawyer and the Fake Friendship

Facebook ‘friendings’ are not automatic recusals, but they are still best avoided

I have written before of the risks of social media friendships between lawyers and judges, and the Florida Supreme Court has recently shed further light on this issue.

Image: NordWood Themes

On 15 November 2018, the Florida Supreme Court handed down its opinion in Law Offices of Herssein and Herssein, PA etc. et al-v-United Services Automobile Association. The question before the court was whether or not a judge should be disqualified on the basis of a Facebook friendship. The majority answered in the negative, concluding (at 20):

“…our case law clearly establishes that not every relationship characterized as a friendship provides a basis for disqualification. And there is no reason that Facebook “friendships” — which regularly involve strangers — should be singled out and subjected to a per se rule of disqualification.”

The foundation of the majority opinion was built on a thorough discussion of exactly what ‘friendship’ means on Facebook, or indeed any other social media; the clear conclusion was that the term ‘friend’ had a different meaning from that which it has in the neighbourhood, schoolyard or workplace. In coming to that conclusion, the court noted that:

Some people have thousands of ‘friends’ on Facebook;

Facebook members often cannot recall every person with whom they have connected as a ‘friend’;

Many Facebook ‘friends’ are selected based on a suggestion from Facebook’s data-matching technology rather than personal interactions;

Facebook allows people to be friends with strangers, celebrities, animals and even inanimate objects, none of which meet the traditional meaning of ‘friend’.

The court did not rule out a recusal being justified on the basis of a Facebook friendship in the right circumstances, merely noting that this was not an automatic recusal. As with a traditional friendship between judge and lawyer, the unique facts and circumstances of each case, in addition to the base fact of ‘friendship,’ will determine whether recusal is appropriate.

Importantly, one of the majority (Labarga J) felt the need to write a separate opinion, concurring but urging Judges not to participate in Facebook. Labarga J notes (at 22):

“Facebook “friendships” fall across a broad spectrum, from virtual stranger to close, personal friend. Because the relationships between judges and attorneys can fall anywhere on that spectrum, judges who elect to maintain Facebook “friendships” with attorneys who have any potential to appear before them are, quite simply, inviting problems.”

The dissenting minority took a stricter view, noting that Judges do not have the ‘unfettered social freedom’ that other parts of society enjoy, and thought that judges being friends with the lawyers who appear before them might undermine confidence in the judge’s neutrality and create a well-founded fear of bias. Pariente J (who wrote the dissent, with which Lewis and Quince JJ concurred) concluded without ambiguity (at 32):

“The bottom line is that because of their indeterminate nature and the real possibility of impropriety, social media friendships between judges and lawyers who appear in the judge’s courtroom should not be permitted. Under this rule, the opposing litigant would not be required to delve into how close the Facebook friendship may be, the judge avoids any appearance of impropriety, and Florida’s courts are spared from any unnecessary questions regarding the integrity of our judiciary.”

Although of course not binding in Australian courts, the case nevertheless provides useful guidance on an issue with which judges and lawyers everywhere will soon have to grapple on a regular basis, if they aren’t already. Of importance in any jurisdiction are the following takeaways:

Social media ‘friends’ are different from regular friends, and must be treated differently when considering recusal and apprehension of bias issues;

Social media connections between members of the bench and those who appear before them will always invite scrutiny and are best avoided.

In a practical sense, it would be prudent for practitioners to refrain from connecting on social media with judges, magistrates or tribunal members in front of whom they are likely to appear. Simply having the argument–even if no recusal is justified–could undermine confidence in our justice system, and cause unnecessary embarrassment to all concerned.

Life on the bench can be isolating, and that isolation is unlikely to be relieved by the vague and peripheral connections in the digital world. Far better that we take the opportunity to socialise with professional colleagues in the real world; a handshake and a smile every now and again does us all more good than a thousand likes in our social media feeds.