Social media has created all sorts of opportunities for members of the Bar, and their clients, to interact with the Judiciary. It used to be that you would only see the Judge in court, at a local restaurant, or at a bar function. Now, it seems, the opportunities for interacting with the Judge are virtually endless. Consider the fact that many members of the Judiciary have a Facebook page, a LinkedIn profile and a twitter feed. Judges who are in the election cycle routinely create Facebook pages in order to garner financial support for their election or reelection. Is the fact that a lawyer or her client are connected with the judge on Facebook sufficient to justify the Judge’s disqualification ?
A Recent case from the Fifth District Court of Appeals has answered that question at least in part. In Chace v. Loisel, the Fifth District Court of Appeals was called upon to review the Trial Court’s treatment of a Motion to disqualify the Judge for bias. Prior to the entry of a final judgment in a divorce case the Trial Judge reached out to the petitioner, ex parte, in the form of a Facebook friend request. Upon advice of counsel, the petitioner did not respond. Thereafter, the Trial Court judge entered a final judgment of dissolution of marriage allegedly apportioning most of the marital debts to petitioner and providing the Respondent with a disproportionately excessive alimony award. Petitioner thereafter filed a Motion to Disqualify. The Trial Court judge found the motion insufficient and denied it.
On appeal the Fifth District Court of Appeals recognized that the standard for granting a Motion to Disqualify is that the complained of conduct must be sufficient to create a well-founded fear in the minds of the party that he or she will not receive a fair trial. If so, it is incumbent upon the Trial Court Judge to disqualify herself.
In order to determine whether a motion is “legally sufficient” the Court must resolve certain fact issues. The question is whether the facts, if accepted as true, would prompt a reasonably prudent person to fear that she could not get a fair and impartial trial before the judge. Mere subjective fear is insufficient to serve as a basis for disqualification.
The Fifth District found that the judge’s ex parte communication with the party presented a legally sufficient claim for disqualification, particularly in case where a party’s failure to respond to the Facebook friend request could potentially offend the Court. The friend request, the Fifth District concluded, put the litigant between a rock and a hard place – either engage in improper ex parte communication with the judge presiding or do not accept the friend request. The Fifth District relied upon a case from the Fourth District entitled Domville v. State in which the Fourth District Court of Appeals determined that a Judge who was friends with various attorneys through social media could create a well-founded fear that a party would not receive a fair and impartial trial.
The Fifth District in Chace expressed serious reservations about the Court’s rationale in Domville. The Fifth District found that the word “friend” on Facebook is a term of art and recognized, as a matter of law, that the word “friend” on Facebook does not necessarily signify the existence of a close relationship. Other than the public nature of the Internet there is no difference between a Facebook friend and any other friend the Judge might have. The Fifth District found that the logic of the Domville Court would require disqualification in cases involving a mere acquaintance of a judge. In small counties, where everyone knows one another, this requirement is both unworkable and unnecessary, the Court found. “Requiring disqualification in such cases does not reflect the true nature of a Facebook friend request and casts a large net in an effort to catch a minnow, ” the Court concluded. The Fifth District found that there was a difference between a Judge’s unreturned friend request and circumstance in which a judge is simply Facebook friends with various lawyers. The Court found that if the Judge was “friend” with a party in a pending case that would raise far more concerns than if a Judge was Facebook friendship with a lawyer. The Fifth District confirmed that a trial judge, who sends a Facebook friend request to a litigant in a pending case, should be disqualified. While the Opinion does not discuss what would happen if the litigant accepted the friend request, it makes sense that this would provide the litigant’s adversary a reason for that party to seek disqualification of the Judge.
The lessons to be learned here for lawyers, litigants and judges are simple. If you are a judge, do not send Facebook friend requests to litigants. However, lawyers can be Facebook friends with Judges and that is not enough to disqualify the Judge. However, litigants, members of the judiciary and members of the bar should exercise caution in connection with their social media relationships in order to avoid the appearance of impropriety.