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August 31, 2017 by Joseph J. DePalmaDownload PDF

A Friend of Yours is a Friend of Mine, MaybeJoseph J. DePalma

The Miami Herald recently reported, “Facebook friends aren’t necessarily real friends.” While this headline comes as no surprise to someone like myself (born in the ‘50’s), the meaning of a “Facebook friend” was front and center in Law Offices of Herssein and Herssein, P.A. etc. et al., vs. United States Automobile Association, a Florida Court of Appeal opinion that was filed on August 23, 2017.

There, the Florida appellate court considered an appeal seeking the disqualification of a trial court judge because he listed as a “friend” on Facebook an attorney representing a potential witness and potential party in a civil case. The issue was framed as “whether a reasonably prudent person would fear that he or she could not get a fair and impartial trial because the judge is a Facebook friend with [that lawyer].”

The facts are straightforward. The petitioner law firm sued USAA Insurance Company in a breach of contract and fraud action. The firm later determined that an individual might have participated in the fraud, and the law firm informed USAA of that belief. As ordinarily happens, USAA hired an attorney to represent the potential witness/defendant. That attorney was listed as a friend on the judge’s Facebook page. A motion to disqualify was filed and, following a denial, the law firm petitioned for appeal of the disqualification ruling.

The Third District Court of Appeal recognized the general rule under Florida law that allegations of mere friendship are insufficient, standing alone, to serve as a basis to disqualify. But it recognized two conflicting decisions of its sister courts. In the first case, Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012), the court ruled that the Facebook relationship between a judge and a prosecutor can warrant disqualification. In Domville, the court recused a judge who friended the prosecutor, reasoning that a user has an “active role’ in accepting or rejecting potential friends or in making friend requests. The Domville court, quoting from an ethics advisory opinion, stated “the judge [by actively friending] conveys or permits others to convey the impression that they are in a special position to influence the judge.”

Next, the Herssein court recognized a case where the Fifth District came to a different conclusion two years later. In Chace v. Loisel, 170 So. 3d 802 (Fla. 5th DCA 2014), the court expressed “serious reservations” regarding Domville, noting that the Facebook term “friend” is, in fact, a term of art that does not always convey that friends are friends.

The Herssein court made three observations it found critical. First, some users have thousands of Facebook friends. Some of those are real friends; others are persons they’ve never met. Next, many Facebook users cannot recount just who their “friends” are. Finally, the court recognized that Facebook suggests many friends to its users based on proprietary algorithms that predict associations. In rejecting Domville and the ethics opinion upon which Domville relied, the Herssein court stated: “An assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”

As is evident, in Florida or elsewhere, the law is both unsettled and developing. The bottom line is to be careful and know the laws in your jurisdiction before you casually accept new Facebook “friends.”