It may be true that “that which we call a rose by any other word would smell as sweet,” but the same cannot be said of “friends,” at least not on Facebook, according to a Florida court. There has been a question of whether our social media pals, or “e-friends,” as I used to call them, are really “friends,” according to some of the commonly accepted definitions. Personally, I long ago abandoned the distinction between “e-friends” and friends IRL. In my opinion, a friend is a friend is a friend, regardless of how we are connected. The issue is less clear when one looks at how friendships can impact the legal field, specifically, those between judges and the lawyers appearing before them.
In the instant case, the issue arose when Circuit Court Judge Beatrice Butchko found herself in the interesting position of being assigned to a case that would be argued by one of her Facebook friends. A Miami-based law firm, Herssein and Herssein, had filed suit against the United Services Automobile Association (USAA), a former client, to recover outstanding legal bills. The lawyer representing USAA, former Miami-Dade circuit judge Israel Reyes, is one of Judge Butchko’s Facebook friends.
Let’s take a pause here to look at why that matters.
Courts are tasked with impartiality when hearing cases. Judges are not permitted to hear cases in which they may have a conflict of interest that could affect the outcome of the case. Such conflicts include personal knowledge of the facts in dispute other than those gained by reviewing the case, financial interest in the outcome, or – most pertinent here – a personal bias toward the participants in the case. Generally, it’s held that judges who are close friends with an attorney appearing before them may not be able to maintain impartiality due to the personal connection. In those instances, it’s common for the judge to recuse him- or herself. Recusal is a legal term meaning to disqualify or remove oneself from the case.
When plaintiffs Herssein & Herssein discovered Judge Butchko’s connection with Mr. Reyes, Iris Herssein, one of the firm’s attorneys, asked the judge to recuse herself. Ms. Herssein’s reasoning was a “well-grounded fear of not receiving a fair and impartial trial.” After due consideration, Judge Butchko opted against recusal and the plaintiffs appealed.
Third District Court of Appeals Judge Thomas Logue, writing the ten-page unanimous opinion, said, “An assumption that all Facebook ‘friends’ rise to the level of close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking. Electronic social media is evolving at an exponential rate. Acceptance as a Facebook ‘friend’ may well once have given the impression of close friendship and affiliation. Currently, however, the degree of intimacy among Facebook ‘friends’ varies greatly.”
In other words, Judge Butchko did not have to recuse herself as her Facebook friendship with Mr. Reyes did not rise to the level necessary for disqualification. This ruling is, frankly, unsurprising given that many Facebookers have “friends” rosters in the hundreds and have never actually interacted with the majority of them. Indeed, many don’t even remember becoming Facebook friends with most of their rosters.
However, it’s quite likely that the issue will ultimately be one for the Florida Supreme Court. Currently, there are no hard and fast rules for judges regarding social media friendships. In fact, there are disparate rulings across the state; some like Judge Logue, finding that such friendships are fine, and others holding that they present a conflict of interest rising to the level that recusal is necessary.
For example, the state’s Judicial Ethics Advisory Committee said, in 2009, that judges should recuse themselves from cases involving lawyers with whom they are Facebook friends. In 2012, the Palm Beach appeals court held that recusal was necessary for a judge who was Facebook friends with a prosecutor trying a criminal case in that judge’s courtroom. Florida’s state attorney’s office advises prosecutors in Miami “to be mindful” of any Facebook connections with judges in front of whom they’re trying cases.
The reaction to the ruling has been mixed.
Stephen Gillers, a New York University law professor and expert in legal ethics, said, “This decision brings much needed fresh air to an issue that has led some lawyers and judges greatly to overreact. The word ‘friend’ has many meanings. Recusal is justified only when the friendship is so close that the public would reasonably question whether the judge would be able to rule against the lawyer.”
Others, such as Nova Southeastern University ethics law professor Bob Jarvis, see the issue differently. “My own feeling is that it’s [social media] something that can only cause trouble for a judge. I don’t see any upside in a judge having a social-media presence.”
Regardless, judges are people and entitled to have lives outside the courtroom, including a social media presence. Perhaps the best way to handle this delicate situation is for judges to decline Facebook friend requests from lawyers, and vice versa.
It’s possible that Herssein and Herssein will appeal the ruling regarding Judge Butchko’s non-recusal. Even if the firm doesn’t appeal, eventually this controversial issue will make its way to the Florida Supreme Court.