Are your Facebook friends disqualified?
Recently the great William Hamilton of the University of Florida College of Law's E-Discovery Project and retired Judge Ralph Artigliere published an article, Face-Off On Facebook: Judges and Lawyers as Social Media “Friends” in a Post-Herssein World, discussing whether or not a Facebook friendship should be a basis for disqualification. 93, No. 4 Fla. B.J. 18 (July/August 2019). The Florida Supreme Court ruled in Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto. Ass’n, No. SC17-1848, 2018 Fla. LEXIS 2209 (Nov. 15, 2018), that a Facebook friendship is not by itself sufficient to require the disqualification of a judge. This contrasts with the opinion of the Florida Judicial Ethics Advisory Committee that being friends on social media with counsel or litigants would convey the possibility of favoritism being exercised and violate the judicial ethical code.
Hamilton and Artigliere note several complications in assessing the impact of social media connections.
First, the increased reliance on email and e-filings means that judges and attorneys no longer interact as often in person. In the past they had greater opportunities to assess and learn from one another. Restricting social media usage would only increase their isolation.
Second, determining the extent of a social media relationship involves accessing data that is not necessarily publicly available. Discovery methods entail, “invading privacy and creating a burdensome, time-consuming foray unrelated to the case merits.”. Artigliere, at 4.
Third, preferences expressed on a private social media account may give an advantage to those with access over counsel that are excluded.
The California Judicial Ethics Committee lists four factors to consider when determining if a social media connection with an attorney may call a judge's impartiality into question:
1. The more personal the social media account, the more likely it is to cast doubt on impartiality.
2. The greater the number of friends, the less likely it is to cast doubt on impartiality.
3. The Judge's willingness to add friends or followers.
4. The connection is less permissible, if the attorney appears before the judge very frequently.
I personally think that the California guidelines are somewhat flawed.
If a judge only posts about his or her family and sports, aren't any followers unlikely to gain insight to the judges' legal reasoning? Would a judge be less guarded about granting favorable treatment to a friend if this was not likely to be repeated in cases involving many different lawyers and parties?
In any event, there certainly are quite a few judges using social media. See the below sample of these entirely public accounts. To be clear: I am not Facebook friends with any of these judges.
