In an interesting case having relevance in the Indian situation as well, the Supreme Court of Florida,USA,has ruled by 4:3 majority that Facebook friendship between a judge and an attorney appearing before him in a matter is not a sufficient ground for disqualifying him from considering that matter on the ground of likelihood of bias.
The majority opinion expressed by Chief Justice Charles Candy held that Facebook friendship cannot be equated with traditional friendship,and this alone cannot be a ground for disqualification. Though Justice Jorge Labarga concurred with Chief Justice, he urged judges to maintain extreme restraint in using social media so as to maintain impression of impartiality. Justice Barbara Pariente dissented from the majority, holding that Facebook friendship operated on a different level than traditional friendship, as it enabled a person to have a peek into another's inclinations, aptitudes, interests, political opinions etc., giving scope for a shrewd attorney to manipulate the mindset of the judge.
The matter arose out of a motion moved by a law firm Herrsein & Herssein in a trial proceeding, seeking to disqualify a trial judge from dealing with the matter on the ground that he was a Facebook friend of an attorney who was appearing for a party in the matter. When the motion got dismissed, it was carried to Supreme Court in appeal.
Dealing with the matter, CJ Candy deliberated on the general legal standard for disqualification.The mere existence of a friendship between a judge and an attorney appearing before the judge, without more, does not reasonably convey to others the impression of an inherently close or intimate relationship. The standard for determining the legal sufficiency of a motion to disqualify is whether the facts alleged “would place a reasonably prudent person in fear of not receiving a fair and impartial trial.
The judgment passed on November 15 contained philosophical musings on the meaning of friendship. In the traditional sense, a friend is a person attached to another person by feelings of affection or esteem. It is commonly understood that friendship exists on a broad spectrum: some friendships are close and others are not.
People traditionally “select” their friends by choosing to associate with them to the exclusion of others. And people traditionally “communicate” the existence of their friendships by choosing to spend time with their friends in public, introducing their friends to others, or interacting with them in other ways that have a public dimension.
"A Facebook “friend” may or may not be a “friend” in the traditional sense of the word. But Facebook “friendship” is not—as a categorical matter—the functional equivalent of traditional “friendship.” The establishment of a Facebook “friendship” does not objectively signal the existence of the affection and esteem involved in a traditional “friendship.” Today it is commonly understood that Facebook “friendship” exists on an even broader spectrum than traditional “friendship.” Traditional “friendship” varies in degree from greatest intimacy to casual acquaintance; Facebook “friendship” varies in degree from greatest intimacy to “virtual stranger” or “complete stranger", it was held.
It was ruled that mere existence of a Facebook friendship,in and of itself, does not inherently reveal the degree or intensity of the relationship between the Facebook friends. Since the creation of a Facebook friendship in itself does not signal the existence of a traditional friendship, it certainly cannot signal the existence of a close or intimate relationship.
The Chief Justice overruled a decision of subordinate court in Domville vs State, which had held that Facebook friendship with lawyer provided sufficient ground for disqualification. The CJ also disapproved the opinion expressed by Florida Judicial Ethics Committee against judges adding lawyers as friends in social media. If traditional friendship by itself was not a ground for disqualification, the concerns of Ethics Committee about facebook friendship-which exists on an even broad spectrum-are unwarranted.
Justices Ricky Polston, Jorge Labarga and C.Alan Lawson concurred with the CJ's opinion.
However, Justice Labarga, though concurring, expressed concerns about Facebook friendship between lawyers and judges. "Because the relationships between judges and attorneys can fall anywhere on that spectrum, judges who elect to maintain Facebook “friendships” with attorneys who have any potential to appear before them are, quite simply, inviting problems", he said. It was urged that judges should avoid situations which can raise doubts of bias. Judges should review their social media activity and limit their friends only to family members, actual close friends and relatives. "The safest course of action is to not participate in Facebook at all", the judge observed.
The dissenting opinion by Justice Pariente stated that having a lawyer as a Facebook “friend” may undermine confidence in the judge’s neutrality. Equating friendships in the real world with friendships in cyberspace is a false equivalency. The existence of a Facebook “friendship” may reveal far more information regarding the intimacy and the closeness of the relationship than the majority would assign it.
The dissenting judge approved the decision in Domville, which observed : "Unlike face to face social interaction, an electronic blip on a social media site can become eternal in the electronic ether of the internet. Posts on a Facebook page might be of a type that a judge should not consider in a given case. The existence of a judge’s Facebook page might exert pressure on lawyers or litigants to take direct or indirect action to curry favor with the judge."
Justice Pariente went on to hold : "As a practical matter, it is unrealistic to require discovery into the extent of social media “friendship” as a prerequisite to recusal before a valid motion may be filed. An individual judge’s social media, whether it is Facebook, LinkedIn,Instagram, or any other site, is fraught with concerns for the average litigant because it is difficult and intrusive for a litigant to determine with whom the judge has connected, with whom the judge has declined to connect, and what type of communication the judge engages in on these platforms".
The dissent also approved the concerns raised by Ethics Committee. "The bottom line is that because of their indeterminate nature and the real possibility of impropriety, social media friendships between judges and lawyers who appear in the judge’s courtroom should not be permitted", concluded the dissenting opinion to which Justice R. Fred Lewis and Peggy Quince concurred.