271 So. 3d 889
Fla.2018Background
- Law Offices of Herssein & Herssein and attorney Reuven Herssein moved to disqualify a trial judge because the judge was a Facebook "friend" of an attorney (Israel Reyes) representing a potential witness/party. The trial judge denied the motion as legally insufficient.
- Petitioners sought a writ of prohibition from the Third District, which addressed only whether a judge’s Facebook "friendship" with an attorney warrants disqualification. The Third District held it did not and denied the petition.
- The Third District acknowledged conflict with the Fourth District’s Domville decision (which required recusal when a judge and prosecutor were Facebook "friends") and cited contrary authority (Chace) and JEAC advisory opinions.
- The Florida Supreme Court granted review to resolve the district split and to address whether a Facebook "friendship," standing alone, provides legally sufficient grounds for disqualification under §38.10 and Rule 2.330.
- The Court held that an allegation that a judge is Facebook "friends" with an attorney appearing before the judge, standing alone, is not legally sufficient to require disqualification, and approved the Third District in Herssein while disapproving Domville.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a judge’s Facebook "friendship" with an attorney appearing in the case is a legally sufficient basis for disqualification | Facebook friendship conveys a public selection/communication that creates the appearance that the attorney is in a special position to influence the judge; recusal warranted | Mere friendship—traditional or digital—without additional facts does not show a well-grounded, objectively reasonable fear of bias; Facebook friendships vary widely and often are casual | Held: Facebook "friendship," by itself, is legally insufficient to require disqualification; additional facts may suffice in particular circumstances |
| Proper legal standard for assessing disqualification motions based on friendship/social media | (Implicit) JEAC and Domville: public nature of social media transforms friendship into appearance of impropriety | Rely on longstanding precedent: mere friendship (without more) is insufficient; apply objective reasonably prudent person standard | Held: Apply §38.10 and Rule 2.330; assume alleged facts true and ask whether a reasonably prudent person would fear not receiving a fair trial; mere Facebook friendship fails that test |
| Whether JEAC advisory opinions control recusal analysis | JEAC: judges should not friend attorneys who appear before them; social-media "friending" conveys special influence | Court: JEAC advisory opinions are persuasive but cannot override precedent that mere friendship is insufficient; Facebook friendship is not functionally equivalent to traditional close friendship | Held: Court rejects JEAC’s per se prohibition and adopts majority view of state ethics bodies that mere Facebook friendship is not per se disqualifying |
| Precedential effect on Domville and inter-district conflict | Petitioners argued Domville supports recusal | Respondents urged following MacKenzie and other precedent | Held: Domville disapproved to the extent it created a per se rule; Herssein approved |
Key Cases Cited
- MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla. 1990) (establishes that mere friendship, standing alone, is legally insufficient for disqualification)
- Livingston v. State, 441 So.2d 1083 (Fla. 1983) (articulates objective reasonably prudent person standard for disqualification fears)
- Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto. Ass'n, 229 So.3d 408 (Fla. 3d DCA 2017) (Third District decision under review holding Facebook friendship alone insufficient)
- Domville v. State, 103 So.3d 184 (Fla. 4th DCA 2012) (Fourth District decision adopting a more restrictive rule, disapproved insofar as it created a per se recusal rule)
- Chace v. Loisel, 170 So.3d 802 (Fla. 5th DCA 2014) (expressed skepticism about treating Facebook friendship as equivalent to traditional friendship)