Michael Moline
Florida Supreme Court justices on Thursday parsed the question of how being Facebook friends with an attorney involved in a lawsuit differs from actual human interactions between judges and members of the Bar.
The justices suggested the wisest course is steer clear of the social media site — as they do themselves.
“It’s fraught with danger,” Justice Barbara Pariente said.
“We’re not saying judges shouldn’t be on Facebook,” attorney Maury Udell said. “Just don’t be Facebook friends with lawyers who appear in front of you. It goes back to the word I came up with at the beginning — optics. It just doesn’t look right.”
The Miami attorney represents the Herssein Law Group, which wants to disqualify Circuit Judge Beatrice Butchko from a dispute over attorney fees, on the ground that she was Facebook friends with Israel Reyes, an attorney representing the U.S. Automobile Association, the company on the other side of the case.
The 3rd District Court of Appeal refused, concluding that “a ‘friend’ on a social networking website is not necessarily a friend in the traditional sense of the word.”
Ethics rules don’t forbid judges from having personal relationships with attorneys as long as there’s no appearance of undue influence, Suzanne Labrit, representing the association, argued.
“There isn’t really, I would submit respectfully, any difference” between that and Facebook friendships,” she said.
Many of the justices’ questions — Justice Ricky Polston did not participate — centered on the difficulty of maintaining the appearance of impartiality in the often closely knit legal community. Judges and litigants know each other well enough to sit down to lunch occasionally — especially in small towns.
The court’s not about to tell judges never to dine with lawyers, but obviously they shouldn’t with an active litigating attorney, or one who frequently appears in the judge’s court, Pariente said.
“There’s something different about what may happen before a case, and then what happens during a case,” she said.
“I think in this case you’re on solid ground,” Pariente told Labrit. But she still suggested the wiser course is to not have “lawyers as friends.”
The Judicial Ethics Advisory Committee ruled in 2009 that a social media connection “conveys the impression that the lawyer is in a position to influence the judge” and was therefore “is not permitted,” Pariente said.
And in 2012, the 4th District Court of Appeal ruled — before the 3rd District acted — that such friendships could be ground for recusal, she said.
Pariente opted against opening a Facebook page for that very reason, she said. Other justices also said they avoided the platform.
The Judicial Ethics Advisory Committee didn’t go so far as to suggest judges purge lawyer Facebook friends, Labrit said. And those relationships range from intimate to distant strangers.
“LeBron James and I are friends on Facebook. He probably couldn’t pick me out in a lineup,” she said.
She pointed to 11th U.S. Circuit Court of Appeals Judge Rosemary Barkett’s warning that failure to observe the distinction would be “infinite motions to disqualify based on the fact that a lawyer may be friends” with a judge.
“You run the risk of having multiple motions for disqualification for any number of people,” Justice Peggy Quince said.
“Facebook friends frequently are friends of a friend of a friend of a friend of a friend,” Justice Charles Canady said.
“The idea that somehow participating in that network arrangement somehow establishes the kind of relationship with anybody who happens to come into it that would result in disqualification just is not consistent with what our case law has said about traditional friendship,” he said.
The difference, Udell said, is that one needs to affirmatively ask to friend someone on Facebook. And, unless a judge accepts their requests, they can never know nature of his or her other Facebook relationships absent an extensive discovery process.
“To avoid the appearance of impropriety, you cannot make that connection to the exclusion of the other side,” he said.
The call would be easy if a judge included an attorney among a very small number of Facebook friends, Canady suggested. “But we don’t have any suggestion in this case that there’s a circumstance like that.”
Justice Fred Lewis warned against the appearance of impropriety.
“If all judges were saints, then we wouldn’t be having all the cases we have coming over from the (Judicial Qualifications Commission). And they’re coming over on a weekly basis, my friend,” he said.
