As social media has become more integrated with our lives over the past twenty years, a myriad of legal issues have come to light ranging from the discoverability of social media records to, now, whether Facebook activity can support a request for judicial recusal.

In Law Offices of Herssein and Herssein PA et al. v. United Services Automobile Association, the Florida Supreme Court ruled 4-3 the mere existence of a Facebook friendship between a judge and an attorney, by itself, is not sufficient to support a demand for recusal.  The Court reasoned judges and attorneys have long diligently exercised discretion in recusal when personal connections exist, and that recusal has always been warranted when the friendship surpasses mere acquaintance.  Mindful of the need to preserve judicial integrity, the Florida high court expanded that social media records could constitute grounds for recusal provided there is ample evidence of social contact between the judge and an attorney or fact witness.

Justice Labarga, who concurred with the majority, penned a short opinion in order to underscore concern over the appearance of judicial impropriety.  While a social media “friendship” may be innocuous, Justice Labarga argued the safest course of action for judges would be to not engage in social media at all, or, failing that, to carefully limit friendships to close friends and family.

The dissent disagreed with the majority’s analogizing of social media and real life friendships, and urged instead a standard prohibiting judges from friending attorneys on social media.   The dissent relied upon a local district court’s decision and the Florida Judicial Ethics Advisory Committee’s opinion recommending staunch regulation of judicial use of social media.  As social media has rapidly become the leading form of communication, the dissent notes many users share ideological musings or newspaper articles.  The mere review of such postings, of which there may be no evidence, could infringe on the impartiality of the judge.  Further, the friend is privy to all sorts of personal information about the judge.  The dissent expressed concern that litigants or their attorneys may seek to curry favor by means of social media and thus determined the reasonable course of action was to either require recusal in all cases in which there is a friend relationship or simply ban judges from social media.

Both the majority and dissent express the same valid concerns, but reach radically different results.  The common overlap, though, is that litigants have the reasonable expectation that any significant personal relationship will be disclosed either for waiver of any conflict or as sua sponte grounds for recusal.  In any case, to the extent no such disclosure was forthcoming, we should be mindful that social media records could map out the extent of an undisclosed relationship and should be used to support a demand for recusal.

Thanks to Chris Soverow for his contribution to this post.