Florida: judges can be friends with lawyers on Facebook, because Facebook “friends” aren’t necessarily real friends

I reported last month on a motion to disqualify a Florida state judge from presiding over a case after it was learned that she was Facebook friends with opposing counsel.  The twist on the case was that the counsel in question had previously been a judge himself, and the Facebook connection dated back to a time when both judge and counsel were on the bench.

On Wednesday, Florida’s Third District Court of Appeal issued a ten-page order, concluding that disqualification was not necessary.  The key language:

We agree with the Fifth District that “[a] Facebook friendship does not necessarily signify the existence of a close relationship.”  We do so for three reasons.  First, as the Kentucky Supreme Court noted, “some people have thousands of Facebook ‘friends.’…

Second, Facebook members often cannot recall every person they have accepted as “friends” or who have accepted them as “friends.”  In a recent case, a student, who had over one thousand Facebook “friends,” did not know he was a Facebook “friend” with another student he was accused of assaulting….

Third many Facebook “friends” are selected based on Facebook’s datamining technology rather than personal interactions.  Facebook data-mines its members’ current list of “friends,” uploaded contact lists from smart phones and computers, emails, names tagged in uploaded photographs, internet groups, networks such as schools and employers, and other publicly or privately available information.  This information is analyzed by proprietary algorithms that predict associations. Facebook then suggests there “People You May Know” as potential “friends.”

This is a thoughtful and sensible opinion, and the pervasive use of scare quotes around the term “friend” is a telling indictment of how distant our human relationships have grown in an age of social media.

Florida judge faces recusal for Facebook friendship

Miami-Dade Circuit Judge Beatrice Butchko’s Facebook account is the subject of a pending dispute in Florida’s Third Circuit Court of Appeal. Judge Butchko is friends on the social media site with local lawyer Israel Reyes, which appellants argue should disqualify her from hearing any cases involving Reyes or his firm.

Florida was an early leader in setting out ethics guidelines for judges on social media, with a 2009 opinion that barred judges from adding lawyers who may appear before them as “friends” on any social networking site. Had Judge Butchko recently added Mr. Reyes as a friend, it would seem a clear violation of the ethics guideline.

But there is a twist in this case: Mr. Reyes was formerly a colleague on the state bench with Judge Butchko, and it was in that capacity that they connected on Facebook. Only when Mr. Reyes left the bench did the potential for him to appear before Judge Butchko ever become a possibility. And the ethics opinion is silent about removing friends from social media–as opposed to adding new ones.

Mr. Reyes is representing a non-party in the case before Judge Butchko, but the proper defendant in the case finds the entire disqualification motion absurd:

“No reasonably prudent Miami lawyer has a well-founded fear of not receiving a fair and impartial trial simply because two judges who sat on the bench in Miami-Dade County are ‘friends’ on Facebook,” wrote Shutts & Bowen attorneys Patrick Brugger and Frank Zacherl of Miami, who did not respond to a request for comment by deadline.

Judge Butchko could presumably resolve the issue quickly by dropping Mr. Reyes as a Facebook friend, so as to avoid any perception of partiality. Nothing would prevent her from maintaining a real friendship within professional limits. And that might be the best kind of friendship after all.

 

Judges beware: the (ongoing) risks of a social media presence

At Above the Law, Nicole Black has an interesting piece on “judicial missteps” associated with social media use.  Judges have faced recent disciplinary actions for posting on Facebook about active cases, attorneys appearing before them, or other judicial candidates. Black reminds us:

But the convenience of the immediacy and reach of social media is often tempered by its permanency. After all, a single tweet or Facebook post can have unintended and long-lasting effects. Unfortunately, that’s something people often forget in the heat of the moment, resulting in regrettable and irreversible mistakes.

That’s good advice for everyone.  A little discretion on the internet goes a long way.