The Florida Supreme Court may soon get the ultimate say on whether Florida judges and lawyers can be Facebook “friends.” The social media dilemma for judges began in 2009 with an advisory opinion from Florida’s Judicial Ethics Committee which questioned the ethics of a judge who was a Facebook “friend” with a lawyer. Why? The appearance of impropriety. According to the Committee, the public could see a lawyer who is a Facebook “friend” of a judge as being in a “special position to influence the judge.” Following the opinion, many judges “unfriended” lawyers they knew did or potentially could appear in their courtroom. Other judges took the advisory opinion as just that, an advisory opinion, not a mandate. 

One such judge was a Broward County Circuit Court judge. The issue of judges and lawyers being Facebook “friends” may get to the Florida Supreme Court because that judge denied a criminal defendant’s motion for a new judge after the defendant learned that the judge and the prosecutor were Facebook “friends.” In September of 2012, the Fourth District Court of Appeal (DCA) issued an opinion requiring the Broward County judge to recuse himself. On January 16, 2013, the Fourth DCA denied a request for a rehearing on the issue, but did certify the following question to the Florida Supreme Court:

Where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook “friend,”would  a  reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant’s motion for disqualification should be granted?

Consistent with their September 2012 ruling, the judges of the Fourth DCA seemed adamant that Facebook friendships between judges and lawyers should not exist. One of the appellate judges acknowledged that “there are disagreements between reasonable persons about the way that a judge may take part in social media sites such as Facebook,” but he noted that “a person who accepts the responsibility of being a judge must also accept limitations on personal freedom.” Another appellate judge added that “common sense suggests that the public, without question, would appear to desire“ not see judges friending lawyers on Facebook.

Whether the Florida Supreme Court will see the issue as an “isolated” event, as one of the Fourth DCA, and refuse to rule on the issue is unclear. Undoubtedly, until the Florida Supreme Court says otherwise, lawyers throughout the state will attempt to use the Fourth DCA’s opinions as requiring mandatory recusal in cases where an opposing party and the judge are Facebook “friends.” Thus, any lawyer who is Facebook friends with a judge may be at risk for a motion for recusal.

The Florida Judicial Ethics Opinion can be found at Fla. JEAC Op. 2009-20 (Nov. 17, 2009). The Fourth DCA opinions can be found at Domville v. State, 37 Fla. L. Weekly D2126 (Fla. 4th DCA Sept. 5, 2012), and Domville v. Florida (4D12-556) (January 16, 2013).