The Florida Supreme Court will decide whether judges must recuse themselves for being Facebook “friends” with attorneys appearing before them.

The Court will review a decision from the Third DCA finding a Miami judge was not required to recuse herself simply for being Facebook “friends” with an attorney on the case. In its decision, the Third DCA explained, “a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word.”

On December 7, 2017, the Florida Supreme Court entered an order granting the petitioners’ motion to stay the lower court proceedings pending review.

The Petitioners filed their initial brief on January 3, 2018, arguing that it is a violation of Canon 2B of the Florida Code of Judicial Conduct for judges to be Facebook friends with attorneys who appear before them. Cannon 2B requires that a judge avoid the appearance of impropriety and provides, in part, that a judge shall not “convey or permit others to convey the impression that they are in a special position to influence the judge.” Petitioners argued that a judge’s friendship with an attorney appearing in a case violates that cannon because of the type of interaction that Facebook enables:

Facebook friends have the ability to electronically share virtually anything from the intensely personal to the comically benign. Facebook allows “friends” to communicate, view, access, and comment on specific personal information that “non-Facebook-friends” cannot view or see. Because Petitioners’ and their lawyers do not enjoy the same “special position,” Reyes has, of being a Facebook “friend” of the trial judge, they are not able to freely access, view, comment, and share the same materials as Reyes. Thus, they do not enjoy a commensurate level of intimacy with the trial judge as Reyes does. It is this inclusion of Reyes and exclusion of Petitioners in Judge Butchko’s inner circle and nonpublic forum that gives rise to the appearance of impropriety.

Initial Brief at p. 14.

Petitioners further argue that the Third DCA opinion conflicts with a Fourth DCA opinion finding that a judge’s friendship with a prosecutor was disqualifying. They also argue that it conflicts with two advisory opinions from the Florida Judicial Ethics Advisory Committee (Fla. JEAC Op. 2009–20 and Fla. JEAC Op. 2010-06).

On January 11, 2018, the Florida Supreme Court also granted leave for a non-party to file an amicus curiae brief on behalf of Petitioners, which will argue that Facebook users’ ability to block communications with their friends from public view enhances the appearance of impropriety of social media use by the judiciary.

Stay tuned…