Judges Need Not Recuse Themselves Just Because They Are Facebook "Friends" with a Lawyer

So holds the Florida Supreme Court (by a 4-3 vote).

|The Volokh Conspiracy |

"The establishment of a Facebook 'friendship' does not objectively signal the existence of the affection and esteem involved in a traditional 'friendship.'" Indeed, as the court points out in today's Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto. Ass'n, even traditional "friendship" doesn't always require recusal (though perhaps very close friendship might): Though the court doesn't give these as examples, state and federal Supreme Court Justices are often on close terms with their former clerks, who routinely practice in front of them, and in many small towns all the judges and lawyers may know each other well, especially since judges are usually former local lawyers.

Note, though, that these rules vary from state to state; as the majority points out, its position is the dominant view among those states that have considered it, but other states do require recusal in such situations (as the 3-Justice dissent in the Florida Supreme Court would have). Thanks to Howard Bashman (How Appealing) for the pointer.

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  1. Here you have it: your facebook friends are legally not really your actual friends.

    1. I think the core holding is that lawyers do not necessarily legally have ANY friends.

      1. Both holdings are amply supported by the factual record.

  2. I don’t even know (or really care) about this issue, but the fact that the 4 in the majority were appointed by Republicans and the 3 in the dissent were appointed by Demoncraps makes me know this was the right decision.

    1. Keep that in mind when your lawyer’s ineffectively arguing that your judge should have been recused for being friends with the prosecutor.

      1. Being Facebook friends or friends in reality?

        1. The majority didn’t see a problem with either one.

          1. That particular majority, however, would be expected to order recusal if a Mexican judge* stands between Pres. Trump (President of Trump University, in this context) and avoidance of accountability for fraud.

            * born in Indiana, if I recall correctly

            Carry on, clingers . . . so far as right-wing judges can hold back the tide and right side of history.

  3. IDK. There is certainly the appearance of impropriety here. Particularly w.r.t. former clerks.

    And it would be trivial to mitigate that problem; just transfer the case to a different venue. Or name a visiting judge.

    1. I’m with you. It’s my impression that the “appearance of bias” standard has almost completely disappeared. That’s not a good thing, IMO. For those who have clerked (or who have had friends who clerked); we can see that this judge-clerk relationship is often very close. And A Lot closer than, say, most relationships with uncles/aunts, cousins, etc..

      Would a judge recuse herself if one of the parties was an nephew (where there was Not evidence of a close and warm relationship)? God, I sure hope so. Seems like most ‘reasonable’ people would see that relationship and say, “No way that judge should be deciding this case.”

      (The smaller the town/legal community and the more frequent the close relationship, the less necessary–and practical–the need for recusal. If judge knows all 20 lawyers in a small town, then that close relationship is no longer unique, and therefore, seems less objectionable to me.)

  4. What if they kept poking each other?

    (This is purely a hypothetical, by the way)

  5. Why does the judge have a facebook page? The Canons of judgeship suggest these important people should act like a judge at all times and not engage in matters that would lead to disruption of the court.

    pp

    1. The real question is – why does anyone have a Facebook page?

  6. Agreed the judge should not be disqualified only for the Facebook friend designation.

    However, did they review the nature of the friendship?

    Were there posts/pictures of the judge and lawyer playing golf or at a gay bar together?

    The extent of the friendship should have been examined.

  7. Many judges are liars and corrupt. Why would they avoid the appearance of bias?

    Just recuse yourself if you have any relationship with a conflicting party that is not them simply appearing in your court as part of their job.

    Look at motivations of judges why they dont want to recuse themselves on the rare situation that appears like a conflict of interest. The fact that they WANT to hear certain cases tells you of their bias. A judge should never care what case is assigned to them.

  8. At some point, we’re going to have to recognize that, if we want normal people on the bench, we shouldn’t be surprised with they do normal people stuff. Nor do I think it’s fair to demand they stop doing normal people stuff when they get on the bench.

    A huge number of people in their 30s and 40s have social-media accounts. A large number of my peers are friends on Facebook, people I follow on Twitter, or connections on LinkedIn. I don’t think it’s reasonable to expect that I’d immediately sever those social-media connections should any one of us be nominated to the bench. No more than I would expect a judge to immediately quit every organization/group they engage in with other lawyers.

  9. The Godfather Rule “keep your friends close, and your enemies closer” implies to me that some Facebook friending is done to keep tabs on enemies. Who you “friend” on Facebook may have nothing to do with friendliness.

    1. Great. Evidence of a conflict of interest then. You dont like the person, so you friend your enemy on FB.

      Your example is not some innocent “friend” status on FB. Its a tactic to see what your enemy is doing. If that enemy has a case in your court, your are biased against that person.

      RECUSE YOURSELF!

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