« Ongoing Website Editing Doesn't Trump Single Publication Rule--Yeager v. Bowlin | Main | Buyers of Michael Jackson's Assets from a Storage Locker Auction Can't Set Up Paywalled Tribute Website--Branca v. Mann »
September 11, 2012
Florida Judge Disqualified Over Facebook Friendship With Prosecutor -– Domville v. Florida
[Post by Venkat Balasubramani]
Domville v. Florida, No. 4D12 556 (Fl. Ct. App.; Sept. 5, 2012)
I blogged briefly about a Florida ethics opinion that prohibits judges from friending lawyers who appear before them. ("Is the Florida Bar Taking Facebook Friendship Too Seriously?") A criminal defendant in Florida recently moved to disqualify a judge because the judge was Facebook friends with the prosecutor (the defendant also pointed to several adverse rulings, which he attributed to the Facebook friendship).
The court, citing to the ethics opinion, grants the motion. The ethics opinion explains that it’s not the fact of friendship itself, it’s that identifying the friendship publicly “conveys the impression that the lawyer is in the position to influence the judge.” It doesn’t matter whether the lawyer is actually in a position to exert any influence, the public perception of this undermines the appearance of neutrality. The court (citing the ethics opinion) warns judges who are about to embark on the social networking journey to be careful:
Judges must be vigilant in monitoring their public conduct so as to avoid situations that will compromise the appearance of impartiality. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by the ordinary citizen . . .
Hmmm. It’s interesting to see the court focus not on the fact of friendship, but the fact that it’s almost announced publicly. According to the court, “each of the judge’s “friends” may see on the judge’s page who the judge’s other “friends” are.” This isn’t quite freely available publicly; it’s only available to the judge’s other friends. Which makes you wonder how the defendant got wind of the friendship. (Maybe his defense lawyer?)
The funniest part of the order was the defendant’s description of his own 'Facebook friendships' and why he thought the prosecutor-judge friendship meant he would be unable to get a fair trial:
Domville explained that he was a Facebook user and that his “friends” consisted ‘only of his closest friends and associates, persons whom he could not perceive anything but favor, loyalty and partiality.’
Say what??? I’m tempted to scoff at this as a justification that was ginned up for purposes of the motion, but on the other hand, maybe there are people like this out there. (Contrast this with the court's statement in Quigley Corp. v. Karkus, 2009 U.S. Dist. Lexis 41296 (May 15, 2009): "the Court assigns no significance to the Facebook 'friends' reference . . . . Indeed, 'friendships' on Facebook may be as fleeting as the flick of a delete button".) Either way, I'm still struggling to see how this is different from other forms of social interaction between lawyers and judges. Social interaction between judges and lawyers happens all the time and is not a basis for disqualification. I think there may be a bit of Facebook exceptionalism going on here.
Nevertheless, this type of a challenge is inevitable. Maybe it's curable by some sort of disclosure or policy promulgated by the judge. An alternative is to just keep Facebook friendship not visible (something Facebook's privacy settings now allow), and treat it like golf outings, or other social activities by the judge. Probably not worthy of disqualification, but something a judge may disclose in the interest of full disclosure.
[Eric's comment: if the choice is between avoiding the small possibility of apparent impropriety from a Facebook friendship and having a judge that understands how Facebook works and has the kind of normal social interactions that everyone else has in our modern digital society, I much prefer the latter.]
Posted by Venkat at September 11, 2012 12:32 PM | Evidence/Discovery