Judge’s Facebook “Friend” Request to Litigant Was Improper Ex Parte Communication
The rapid expansion and surge in popularity of social media networking has presented unique, novel challenges in the field of litigation—not only to attorneys and clients, but to judges as well. The recent revelation of a risqué sex profile on “the world’s biggest gay hookup site” allegedly belonging to a Monroe County judge has raised interesting questions concerning privacy rights and judicial ethics.
More recently, Florida’s Fifth District Court of Appeal examined a judge’s attempt to “friend” a litigant on Facebook. In Chace v. Loisel, Case No. 5D13-4449, a Seminole County trial judge presiding over a marital dissolution case sent a Facebook “friend” request to the wife, whose counsel advised her not to respond to the request. The trial judge later entered a final judgment of dissolution, attributing most of the marital debt to the wife and providing the husband with a “disproportionately excessive” alimony award. After learning of other cases involving similar ex parte social media communications which led to the same judge’s disqualification, the wife filed a motion to disqualify, which the judge denied as “legally insufficient.”
On a petition for a writ of prohibition to quash the trial court’s order, the Fifth District reversed the order (and subtly chided the trial judge in its concluding remarks):
It seems clear that a judge’s ex parte communication with a party presents a legally sufficient claim for disqualification, particularly in the case where the party’s failure to respond to a Facebook “friend” request creates a reasonable fear of offending the solicitor. The “friend” request placed the litigant 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.
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. . . The trial judge’s efforts to initiate ex parte communications with a litigant is prohibited by the Code of Judicial Conduct and has the ability to undermine the confidence in a judge’s neutrality. The appearance of partiality must be avoided. It is incumbent upon judges to place boundaries on their conduct in order to avoid situations such as the one presented in this case.
Because Petitioner has alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial, we quash the order denying the motion to disqualify and remand to the trial court for further proceedings consistent with this opinion. We trust that the issuance of a formal writ will be unnecessary.
In Chace, the Fifth District addressed the only other reported Florida decision discussing the impact of a judge’s social networking activity—Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012), rev. denied, State v. Domville, 110 So. 3d 441 (Fla. 2013). In Domville, a criminal defendant moved to disqualify the trial judge upon learning that the judge and the prosecutor were Facebook “friends.” The trial judge denied the motion as “legally insufficient.” On a petition for a writ of prohibition, the Fourth District reversed. Relying on an opinion of the Judicial Ethics Advisory Committee and Florida Code of Judicial Conduct Canon 2, the Fourth District explained:
[A] judge’s activity on a social networking site may undermine confidence in the judge’s neutrality. Judges must be vigilant in monitoring their public conduct so as to avoid situations that will compromise the appearance of impartiality . . . [B]eing a judge necessarily limits a judge’s personal freedom.
Notably, the Fifth District in Chace expressed “serious reservations” about the court’s rationale in Domville:
We have serious reservations about the court’s rationale in Domville. The word “friend” on Facebook is a term of art. A number of words or phrases could more aptly describe the concept, including acquaintance and, sometimes, virtual stranger. A Facebook friendship does not necessarily signify the existence of a close relationship. Other than the public nature of the internet, there is no difference between a Facebook “friend” and any other friendship a judge might have. Domville’s logic would require disqualification in cases involving an acquaintance of a judge. Particularly in smaller counties, where everyone in the legal community knows each other, this requirement is unworkable and unnecessary. Requiring disqualification in such cases does not reflect the true nature of a Facebook friendship and casts a large net in an effort to catch a minnow.
That said, Domville was the only Florida case that discussed the impact of a judge’s social network activity and, as such, was binding upon the trial judge in this case. See Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (explaining that “in the absence of interdistrict conflict, district court decisions bind all Florida trial courts”). Although this case involves the “friending” of a party, rather than an attorney representing a party, for purpose of ruling on the motion to disqualify we find that the difference is inconsequential. In our view, the “friending” of a party in a pending case raises far more concern than a judge’s Facebook friendship with a lawyer.
While both decisions quashed orders denying motions to disqualify based upon trial judge’s Facebook “friending” activity, the Fifth District’s expression of doubt on the Fourth District’s rationale in Domville raises the prospect of interdistrict conflict on the permissible scope of social networking for judges, attorneys, and litigants.
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