Wednesday, February 19, 2014

Will You Be My Friend?

When is it appropriate for a judge to "friend" someone involved in the cases before them? I would suggest that the answer is likely "never." Please disregard the seeming invitation in the title, it was merely to draw you in. The "judge friend" situation was recently illustrated by a Florida Circuit Judge, whose offer of "friend"ship was analyzed by the Fifth District Court of Appeal.

Chace v. Loisel, Case no. 5D13-4449 (Fla. 5th DCA 2014) is a divorce proceeding. During the litigation, the presiding judge sent an offer to one of the parties, the wife, and offered to "friend" her on Facebook. The wife ignored the request.

The use of Facebook by judges has been addressed before. In Domville v. State, 103 So.3d 184; r'hrg denied, 125 So.3d 178 (Fla. 4th DCA 2013), the presiding judge there accepted the assigned (in that judge's usual division) prosecutor's "friend" request.

The Fourth District Court noted in Domville that "central to the public's confidence in the courts is the belief that fair decisions are rendered by an impartial tribunal." Therefore, in that instance, the Court concluded that "a reasonably prudent defendant would fear (because the judge was the prosecutor's "friend") that he or she could not receive a fair and impartial trial, so that the defendant's motion for disqualification should be granted."

Essentially, a judge being a "friend" with the attorney for one party creates a problem that is best solved by the judge's disqualification or recusal, according to the Fourth DCA.
The Chace judge was not the invitee, but actually sent the invitation to one of the parties in the case. The judge was thereafter presented with a motion for disqualification (side note, when a judge removes himself or herself it is called a recusal, when a party seeks removal it is called disqualification). The judge denied the motion, but the Fifth DCA reversed and disqualified the judge who sent the offer of "friend"ship.

The Chace court noted that the Judge's offer of "friend"ship was an ex parte communication to the wife. That is not appropriate under Canon 3 of the Code of Judicial Conduct. The Court also noted, however, that the offer placed the wife "between the proverbial rock and a hard place: either engage in improper ex parte communications with the judge presiding over the case or risk offending the judge by not accepting the 'friend' request."

Although the Chace court ordered the disqualification, it took issue with the Domville prohibition on facebook "friends," saying "We have serious reservations about the court’s rationale." They explained that in social media "friend" is a term of art and that it may not connote a "close relationship;" it could mean instead "virtual stranger." The Chace court noted that "Domville’s logic would require disqualification in cases involving an acquaintance of a judge." This, they concluded, could lead to disqualification under Domville that are "unworkable and unnecessary."
Of course, following the Domville decision, few if any judges remain exposed on the Facebook platform. Many have simply abandoned that platform and similar networking media like LinkedIn. Therefore, the Chace court's concern of unworkable and unnecessary disqualification may be inapplicable except when a judge acts inappropriately as in Chace.

The Court noted that the suggested distinction between Domville and Chace based upon the "friend"ship (offered or accepted) being between the judge and a party versus an attorney is "inconsequential," although the "friending" of a party "in a pending case raises far more concern than a judge’s Facebook friendship with a lawyer," essentially because of the ex parte nature of that communication, and the Canon's clear prohibition.

In the end, Domville remains the law in Florida. Judges should refrain from "friend"ships that could "create a well-founded fear of not receiving a fair and impartial trial in a reasonably prudent person." Chace suggests that this may not always remain the situation, and that "friend"ships may not remain so problematic for Judges forever. But Chace does not change Domville, and the prudent Judge will currently refrain (in case you missed the disclaimer above, the foregoing is in no way intended as an invitation to "friend"ship in any way, manner or description).

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