Wednesday, January 16, 2013

Facebook Friends With The Judge? Fourth DCA Certifies Question

In Domville v. Florida (4D12-556), the Fourth District addressed the issue of a judge being Facebook friends with a lawyer appearing before the Judge (see below as Florida's Judicial Ethics Advisory Committee issued an opinion on the issue in 2009). The court certified 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?
In a special concurrence, Judge Gross stated that "recognize that the ability to participate in social media is of great importance to many and there are disagreements between reasonable persons about the way that a judge may take part in social media sites such as Facebook...[but]Judges do not have the unfettered social freedom of teenagers." (emphasis is mine).
Judge Gerber dissented as to certification and stated:
The majority does not provide its reasoning for its conclusion that the certified question is one of great public importance. The only reasoning for its conclusion appears to be stated in the concurring opinion. I disagree with the concurring opinion’s reasoning.
The concurring opinion reasons that the ability of judges to participate in social media with attorneys who appear before them “is of great importance to many.” However, the concurring opinion does not cite any authority for that statement. On the contrary, as the concurring opinion recognizes, common sense suggests that the public, without question, would appear to desire otherwise: “Maintenance of the appearance of impartiality requires the avoidance of entanglements and relationships that compromise that appearance . . . [A] person who accepts the responsibility of being a judge must also accept limitations on personal freedom.”
Related, but not discussed, is a 2009 Florida's Judicial Ethics Advisory Committee opinion that addresses this exact issue and concludes the answer is NO. A judge cannot be Facebook friends with the lawyers that practice before that Judge. See a prior post on the issue HERE. That opinions summary of issues stated, in part:
Whether a judge may add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend."


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