Supreme Court of Florida

____________

No. SC17-1848
____________

LAW OFFICES OF HERSSEIN AND HERSSEIN, P.A., etc., et al.,

Petitioners,

vs.

UNITED SERVICES AUTOMOBILE ASSOCIATION,

Respondent.

November 15, 2018

CANADY, C.J.

In this case, we consider an issue regarding the legal sufficiency of a motion

to disqualify a trial court judge on the basis of a Facebook “friendship.” This

Court granted jurisdiction to review the decision of the Third District Court of

Appeal in Law Offices of Herssein & Herssein, P.A. v. United Services Automobile

Ass’n, 229 So. 3d 408 (Fla. 3d DCA 2017), which held that the existence of a

Facebook “friendship” was not a sufficient basis for disqualification and which

expressly and directly conflicts with the decision of the Fourth District Court of

Appeal in Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012). We have

jurisdiction. See art. V, § 3(b)(3), Fla. Const.

 We hold that an allegation that a trial judge is a Facebook “friend” with an

attorney appearing before the judge, standing alone, does not constitute a legally

sufficient basis for disqualification. We therefore approve the decision of the

Third District in Herssein and disapprove the decision of the Fourth District in

Domville on the conflict issue. 1

BACKGROUND

In the case on review, the Law Offices of Herssein and Herssein, P.A., and

attorney Reuven Herssein “filed a motion to disqualify the trial judge.” Herssein,

229 So. 3d at 409. After the trial judge denied the disqualification motion as

legally insufficient, the Herssein Firm and attorney Herssein “petition[ed the Third

District] for a writ of prohibition to disqualify the trial court judge.” Id. On

review of the petition, the Third District explained the basis for the motion to

disqualify that is relevant here:

The motion [to disqualify] is based in part on the fact that [Israel]
Reyes[—an attorney appearing before the trial judge on behalf of a
potential witness and potential party in the pending litigation—]is
listed as a “friend” on the trial judge’s personal Facebook page. In
support of the motion, Iris J. Herssein and Reuven Herssein, president
and vice president of the Herssein Firm, signed affidavits in which
they swore, “[b]ecause [the trial judge] is Facebook friends with
Reyes, [the executive’s] personal attorney, I have a well-grounded
fear of not receiving a fair and impartial trial. Further, based on [the

1. The Petitioners have presented certain other issues that we decline to

address.

-2-
 trial judge] being Facebook friends with Reyes, I . . . believe that
Reyes, [the executive’s] lawyer has influenced [the trial judge].”

Id. (some alterations in original).

The Third District expressly acknowledged that “Petitioners raise[d] three

grounds” for disqualification on review. Id. But the Third District “wr[ote] only

to address the petitioners’ argument that the trial court judge should be disqualified

because the judge is a Facebook ‘friend’ with a lawyer representing a potential

witness and potential party in the pending litigation.” Id. The Third District

framed the issue as “whether a reasonably prudent person would fear that he or she

could not get a fair and impartial trial because the judge is a Facebook friend with

a lawyer who represents a potential witness and party to the lawsuit.” Id.

At the outset, the Third District cited authority from this Court and the First

District Court of Appeal supporting the longstanding general principle of law that

an allegation of mere friendship between a judge and a litigant or attorney

appearing before the judge, standing alone, does not constitute a legally sufficient

basis for disqualification. Id. at 409-10 (citing MacKenzie v. Super Kids Bargain

Store, Inc., 565 So. 2d 1332, 1338 (Fla. 1990); Smith v. Santa Rosa Island Auth.,

729 So. 2d 944, 946 (Fla. 1st DCA 1998)).

The Third District acknowledged that “this authority does not foreclose the

possibility that a relationship between a judge and a lawyer may, under certain

circumstances, warrant disqualification.” Id. at 410. The Third District noted that

-3-
the Fourth District in Domville “held that recusal was required when a judge was a

Facebook ‘friend’ with the prosecutor” based on “a 2009 Judicial Ethics Advisory

Committee Opinion.” Id. (citing Fla. JEAC Op. 2009-20 (Nov. 17, 2009)). The

Florida Judicial Ethics Advisory Committee (“JEAC”) advised in its 2009 opinion

that judges were prohibited from adding lawyers who appear before them as

“friends” on their Facebook pages or from allowing lawyers who appear before

them to add them as “friends” on the lawyers’ Facebook pages based on the

JEAC’s conclusion that “a judge’s selection of Facebook ‘friends’ necessarily

‘conveys or permits others to convey the impression that they are in a special

position to influence the judge’ ” in violation of Canon 2B of the Florida Code of

Judicial Conduct. Id. at 412 (quoting Fla. JEAC Op. 2009-20 (Nov. 17, 2009)). In

support of its conclusion, the JEAC zeroed in on the “selection and communication

process” of Facebook “friendship.” Id. at 410 (quoting Fla. JEAC Op. 2009-20

(Nov. 17, 2009)). The JEAC reaffirmed its advice in 2010. Id. (citing Fla. JEAC

Op. 2010-06 (Mar. 26, 2010)).

The Third District went on to explain that the Fifth District in Chace v.

Loisel, 170 So. 3d 802 (Fla. 5th DCA 2014), subsequently “signaled disagreement”

with Domville. Herssein, 229 So. 3d at 410. Chace expressed “serious

reservations about the court’s rationale in Domville” in part because “[a] Facebook

-4-
friendship does not necessarily signify the existence of a close relationship.” Id.

(quoting Chace, 170 So. 3d at 803-04).

The Third District agreed with Chace on this point for three reasons. Id. at

411. “First, as the Kentucky Supreme Court noted, ‘some people have thousands

of Facebook “friends.” ’ ” Id. (quoting Sluss v. Commonwealth, 381 S.W.3d 215,

222 (Ky. 2012)). “Second, Facebook members often cannot recall every person

they have accepted as ‘friends’ or who have accepted them as

‘friends.’ ” Id. And “[t]hird, many Facebook ‘friends’ are selected based upon

Facebook’s data-mining technology [suggestions] rather than personal

interactions.” Id. Thus the Third District concluded that “a ‘friend’ on a social

networking website is not necessarily a friend in the traditional sense of the

word[—i.e., a person attached to another person by feelings of affection or

personal regard].” Id. at 412. The Third District further concluded that “[a]n

assumption that all Facebook ‘friends’ rise to the level of a close relationship that

warrants disqualification simply does not reflect the current nature of this type of

electronic social networking.” Id.

The Third District ultimately “h[eld] that the mere fact that a judge is a

Facebook ‘friend’ with a lawyer for a potential party or witness, without more,

does not provide a basis for a well-grounded fear that the judge cannot be impartial

or that the judge is under the influence of the Facebook ‘friend.’ ” Id.

-5-
Accordingly, the Third District denied the petition for writ of prohibition. Id. The

Third District acknowledged that its holding was “in conflict” with Domville but

did not certify conflict. Id.

ANALYSIS

The conflict issue presents a pure question of law that is subject to de novo

review. See Daniels v. State, 121 So. 3d 409, 413 (Fla. 2013). In considering this

question of law, we first discuss the general standard governing disqualification

and review the case law addressing the specific issue of judicial disqualifications

based on a friendship relationship. We then apply the established principles of law

to the context of Facebook “friendships.” Finally, we explain that our conclusion

that Facebook “friendship,” standing alone, is insufficient to warrant

disqualification is consistent with the majority view in the other states.

A. Legal Standard for Disqualification

“A motion to disqualify is governed substantively by section 38.10, Florida

Statutes . . . and procedurally by Florida Rule of Judicial Administration

2.330.” Gregory v. State, 118 So. 3d 770, 778 (Fla. 2013) (quoting Gore v.

State, 964 So. 2d 1257, 1268 (Fla. 2007)). “The statute requires that the moving

party file an affidavit in good faith ‘stating fear that he or she will not receive a fair

trial . . . on account of the prejudice of the judge’ as well as ‘the facts and the

reasons for the belief that any such bias or prejudice exists.’ ” Peterson v. State,

-6-
221 So. 3d 571, 581 (Fla. 2017) (quoting § 38.10, Fla. Stat. (2014)). The rule

provides that “[t]he judge against whom an initial motion to disqualify . . . is

directed shall determine only the legal sufficiency of the motion and shall not pass

on the truth of the facts alleged.” Pasha v. State, 225 So. 3d 688, 703 (Fla. 2017)

(quoting Fla. R. Jud. Admin. 2.330(f)). “The disqualification [statute and] rules

are designed to keep the courts free from bias and prejudice.” Tableau Fine Art

Group, Inc. v. Jacoboni, 853 So. 2d 299, 301 (Fla. 2003). “[T]he disqualification

statute and rules are [also] designed to ensure confidence in the judicial system, ‘as

well as to prevent the disqualification process from being abused for the purposes

of judge-shopping, delay, or some other reason not related to providing for the

fairness and impartiality of the proceeding.’ ” Id. (quoting Livingston v. State, 441

So. 2d 1083, 1086 (Fla. 1983)).

“The standard of review of a trial judge’s determination on a motion to

disqualify is de novo.” Parker v. State, 3 So. 3d 974, 982 (Fla. 2009). “A motion

to disqualify will be dismissed as legally insufficient if it fails to establish a well-

grounded fear on the part of the movant that he will not receive a fair hearing.”

Braddy v. State, 111 So. 3d 810, 833 (Fla. 2012) (quoting Correll v. State, 698 So.

2d 522, 524 (Fla. 1997)). “Whether the motion is legally sufficient is a question of

law.” Mansfield v. State, 911 So. 2d 1160, 1170 (Fla. 2005). The standard for

determining the legal sufficiency of a motion to disqualify is whether the facts

-7-
alleged, which must be assumed to be true, “would place a reasonably prudent

person in fear of not receiving a fair and impartial trial.” MacKenzie, 565 So. 2d at

1335 (quoting Livingston, 441 So. 2d at 1087). “A mere ‘subjective fear[]’ of bias

[or prejudice] will not be legally sufficient; rather, the fear must be objectively

reasonable.” Arbelaez v. State, 898 So. 2d 25, 41 (Fla. 2005) (first alteration in

original) (quoting Fischer v. Knuck, 497 So. 2d 240, 242 (Fla. 1986)).

B. Traditional “Friendship”

In the traditional sense, a “friend” is a person attached to another person by

feelings of affection or esteem. See, e.g., Webster’s Third New International

Dictionary 911 (1993 ed.) (defining the term “friend” as “one that seeks the society

or welfare of another whom he holds in affection, respect, or esteem”); The

American Heritage Dictionary 703 (5th ed. 2011) (defining the term “friend” as

“[a] person whom one knows, likes, and trusts”); Shorter Oxford English

Dictionary 1035 (6th ed. 2007) (defining the term “friend” as “[a] person joined by

affection and intimacy to another”).

But “friendship” in the traditional sense of the word does not necessarily

signify a close relationship. It is commonly understood that friendship exists on a

broad spectrum: some friendships are close and others are not. See, e.g., Black’s

Law Dictionary 667 (6th ed. 1990) (defining the term “friend” as “[v]arying in

degree from greatest intimacy to acquaintance more or less casual”); Black’s Law

-8-
Dictionary 600 (5th ed. 1979) (same); Black’s Law Dictionary 795 (4th ed. 1951)

(same); see also Clark v. Campbell, 133 A. 166, 170 (N.H. 1926) (“Friendship is a

word of broad and varied application.”). Thus the mere existence of a friendship,

in and of itself, does not inherently reveal the degree or intensity of the friendship.

It follows that 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. No

reasonably prudent person would fear that she could not receive a fair and

impartial trial based solely on the fact that a judge and an attorney appearing

before the judge are friends of an indeterminate nature. It is for this reason that

Florida courts—including this Court—have long recognized the general principle

of law that an allegation of mere friendship between a judge and a litigant or

attorney appearing before the judge, standing alone, does not constitute a legally

sufficient basis for disqualification. See, e.g., MacKenzie, 565 So. 2d at 1338

(“There are countless factors which may cause some members of the community to

think that a judge would be biased in favor of a litigant or counsel for a litigant,

e.g., friendship, member of the same church or religious congregation, neighbors,

former classmates or fraternity brothers. However, such allegations have been

found legally insufficient when asserted in a motion for disqualification.”); Ervin v.

Collins, 85 So. 2d 833, 833-34 (Fla. 1956) (allegations of friendship between three

-9-
supreme court justices and the governor, who was a party, were “not sufficient to

constitute a legal basis for disqualification”); Ball v. Yates, 29 So. 2d 729, 735 (Fla.

1946) (allegation of friendship between a supreme court justice and an attorney

previously employed by the prevailing party was “in fact and in law . . . inadequate

and insufficient in substance” for disqualification); see also Smith, 729 So. 2d at

946; Adkins v. Winkler, 592 So. 2d 357, 360-61 (Fla. 1st DCA 1992); Raybon v.

Burnette, 135 So. 2d 228, 230-31 (Fla. 2d DCA 1961).2

With this legal framework in mind, we now turn to address the Facebook

“friendship” issue.

C. Facebook “Friendship”

Facebook was officially “launched on February 4, 2004.” Facebook, Inc. v.

DLA Piper LLP (US), 23 N.Y.S.3d 173, 175 (N.Y. App. Div. 2015). Facebook is a

social media and social networking service with approximately “1.79 billion active

users.” Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017). Facebook

“permits registered users to do a host of things, among them: posting and reading

comments, events, news, and, in general, communicating with . . . others.” United

2. Of course, this general rule of law does not suggest that a friendship
between a judge and an attorney of a determinate nature cannot constitute a close
or intimate relationship that warrants disqualification. Nor does it foreclose the
possibility that a friendship between a judge and an attorney of an indeterminate
nature may, in conjunction with some additional factor, constitute legally sufficient
grounds for disqualification.

- 10 -
States v. Jordan, 678 F. App’x 759, 761 n.1 (10th Cir. 2017); see, e.g., Elonis v.

United States, 135 S. Ct. 2001, 2004-07 (2015).

Facebook provides users with several means of communicating with

one another. Users can send private messages to one or more users.
Users can also communicate by posting information to their Facebook
“wall,” which is part of each user’s Profile Page. A Facebook “wall
post” can include written comments, photographs, digital images,
videos, and content from other websites.

Shaw v. Young, 199 So. 3d 1180, 1188 n.6 (La. Ct. App. 2016) (quoting Ehling v.

Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d 659, 662 (D.N.J. 2013)).

“Facebook users [primarily] create online profiles to share information about

themselves with other Facebook users.” Sublet v. State, 113 A.3d 695, 698 n.5

(Md. 2015). “To create a profile, a person must go to www.facebook.com, enter

his or her full name, birth date, and e-mail address, and register a password.

Facebook then sends a confirmation link to the registered e-mail, which the person

must click on to complete registration.” Smith v. State, 136 So. 3d 424, 432 (Miss.

2014). “Thereafter, the profile may be accessed on any computer or mobile device

by logging into Facebook’s website using the same e-mail address and password

combination.” State v. Buhl, 138 A.3d 868, 874 n.2 (Conn. 2016). “Once

registered, a Facebook user can . . . customize her profile by adding personal

information, photographs, or other content. A user can [also] establish connections

with other Facebook users by ‘friending’ them; the connected users are thus called

‘friends.’ ” Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1063 (9th Cir.

- 11 -
2016); see Ehling, 961 F. Supp. 2d at 662 (“A Facebook user can connect with

other users by adding them as ‘Facebook friends.’ ”).

A Facebook user’s “friend” list appears on his profile page. See Strunk v.

State, 44 N.E.3d 1, 5 (Ind. Ct. App. 2015); Commonwealth v. K.S.F., No. 2497

EDA 2011, 2013 WL 11266159, at *1 n.3 (Pa. Super. Ct. Apr. 12, 2013). In order

to “select” a Facebook “friend,” a user must either (1) send a Facebook “friend”

request to another user to accept or (2) accept a Facebook “friend” request sent by

another user; a Facebook “friendship” is officially established by the acceptance of

a previously sent “friend” request. See Fla. JEAC Op. 2009-20 (Nov. 17, 2009).

In general, “Facebook users may opt to make all or part of their Facebook

information private . . . .” Sluss, 381 S.W.3d at 227 n.12. But even if a Facebook

user generally opts to make the user’s profile private, others may still be able to

view the user’s list of Facebook “friends” on the user’s profile page. See Chaney

v. Fayette County Pub. Sch. Dist., 977 F. Supp. 2d 1308, 1315 (N.D. Ga. 2013);

State v. Eleck, 23 A.3d 818, 820 n.1 (Conn. App. Ct. 2011). Moreover, even if the

Facebook user specifically opts to make the user’s Facebook “friend” list private,

the user may still appear as a Facebook “friend” on another’s profile page. See

United States v. Meregildo, 883 F. Supp. 2d 523, 525-26 (S.D.N.Y. 2012); State v.

Gaps, 316 P.3d 172, 2014 WL 113465, at *2 (Kan. Ct. App. 2014). In this way, it

could be said that a Facebook user publicly “communicates” the existence of the

- 12 -
user’s Facebook “friendships” to others. See Fla. JEAC Op. 2009-20 (Nov. 17,

2009).

We now come to the crux of the matter: what is the nature of Facebook

“friendship?” “The word ‘friend’ on Facebook is a term of art.” Chace, 170 So.

3d at 803. In its most basic sense, a Facebook “friend” is a person digitally

connected to another person by virtue of their Facebook “friendship.” See, e.g.,

Power Ventures, 844 F.3d at 1063; Ehling, 961 F. Supp. 2d at 662.

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.” Chace, 170 So. 3d at 803;

see, e.g., United States v. Tsarnaev, 157 F. Supp. 3d 57, 67 n.16 (D. Mass. 2016)

(“Over a billion people use Facebook and connect with other users as ‘friends.’

Some may be friends in the traditional sense, but others are no more than

acquaintances or contacts or in some cases may even be complete strangers.”); In

- 13 -
re Air Crash Near Clarence Ctr., N.Y., No. 09-CV-769S, 2013 WL 6073635, at *5

(W.D.N.Y. Nov. 18, 2013) (noting that “one can be [Facebook] ‘friends’ with

people known to them, with strangers, with celebrities, with animals, and even

with inanimate objects”).

So it is regularly the case that Facebook “friendships” are more casual and

less permanent than traditional friendships. See, e.g., Williams v. Scribd, Inc., No.

09CV1836-LAB WMC, 2010 WL 10090006, at *6 (S.D. Cal. June 23, 2010) (“[It

is] no secret that the ‘friend’ label means less in cyberspace than it does in the

neighborhood, or in the workplace, or on the schoolyard, or anywhere else that

humans interact as real people.”); Quigley Corp. v. Karkus, No. 09-1725, 2009 WL

1383280, at *5 n.3 (E.D. Pa. May 15, 2009) (“Indeed, ‘friendships’ on Facebook

may be as fleeting as the flick of a delete button.”); Herssein, 229 So. 3d at 411

(“ ‘[S]ome people have thousands of Facebook “friends.” ’ . . . Facebook members

often cannot recall every person they have accepted as ‘friends’ or who have

accepted them as ‘friends.’ . . . [M]any Facebook ‘friends’ are selected based upon

Facebook’s data-mining technology [suggestions] rather than personal

interactions.” (quoting Sluss, 381 S.W.3d at 222)); State v. Smith, No. M2014-

00059-CCA-R3-CD, 2015 WL 100452, at *8 (Tenn. Crim. App. Jan. 7, 2015)

(“Facebook ‘friendships’ frequently exist between those who are indifferent to one

another.”).

- 14 -
 It is therefore undeniable that the 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. See McGaha v.

Commonwealth, 414 S.W.3d 1, 6 (Ky. 2013) (“It is now common knowledge that

merely being friends on Facebook does not, per se, establish a close relationship . .

. .”); Sluss, 381 S.W.3d at 222 (“ ‘[F]riendships’ on Facebook and other similar

social networking websites do not necessarily carry the same weight as true

friendships or relationships in the community . . . .”); Kirby v. Wash. State Dep’t of

Emp’t Sec., No. 70738-8-I, 2014 WL 7339610, at *1 (Wash. Ct. App. Dec. 22,

2014) (“The words ‘post,’ ‘friend,’ and ‘friending’ used in [the Facebook] context

merely refer to individuals communicating with those listed on a social networking

website and do[] not, necessarily, imply any more significant relationship between

those individuals.”).

In short, the mere fact that a Facebook “friendship” exists provides no

significant information about the nature of any relationship between the Facebook

“friends.” Therefore, the mere existence of a Facebook “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

- 15 -
relationship. No reasonably prudent person would fear that she could not receive a

fair and impartial trial based solely on the fact that a judge and an attorney

appearing before the judge are Facebook “friends” with a relationship of an

indeterminate nature.

As we now explain, our holding is in line with the majority of state judicial

discipline bodies and judicial ethics advisory committees—which we refer to

collectively as state ethics committees—that have considered whether Facebook

“friendship” between a judge and an attorney appearing before the judge creates

the appearance of impropriety under their respective states’ judicial codes of

conduct.

D. State Ethics Committees

The clear majority position is that mere Facebook “friendship” between a

judge and an attorney appearing before the judge, without more, does not create the

appearance of impropriety under the applicable code of judicial conduct. See, e.g.,

Ariz. JEAC Op. 14-01, at 4 (Aug. 5, 2014); Ky. Jud. Ethics Comm. Op. JE-119, at

2-3 (Jan. 20, 2010); Md. Jud. Ethics Comm. Op. 2012-07, at 5 (June 12, 2012);

Mo. Ret., Removal, & Discipline Comm’n Op. 186, at 1 (Apr. 24, 2015); N.M.

Jud. Conduct Adv. Comm. Op. Concerning Soc. Media, at 13-14 (Feb. 15, 2016);

N.Y. JEAC Op. 13-39 (May 28, 2013); Ohio Bd. of Comm’rs on Grievances &

Discipline Op. 2010-7, at 1-2, 8-9 (Dec. 3, 2010); Utah JEAC Op. 12-01, at 4-7

- 16 -
(Aug. 31, 2012). In other words, the majority position is that the mere existence of

a Facebook “friendship” between a judge and an attorney appearing before the

judge, without more, does not reasonably convey or permit others to convey the

impression that they are in a special position to influence the judge in violation of

the applicable code of judicial conduct.

The minority position is that Facebook “friendship” between a judge and an

attorney appearing before the judge, standing alone, creates the appearance of

impropriety because it reasonably conveys or permits others to convey the

impression that they are in a special position to influence the judge in violation of

the applicable code of judicial conduct. See, e.g., Cal. Judges Ass’n Jud. Ethics

Comm. Op. 66, at 1, 10-11 (Nov. 23, 2010); Conn. Jud. Ethics Comm. Op. 2013-

06 (Mar. 22, 2013); Fla. JEAC Op. 2009-20 (Nov. 17, 2009); Mass. Jud. Ethics

Comm. Op. 2011-6 (Dec. 28, 2011); Okla. Jud. Ethics Adv. Pan. 2011-3 (July 6,

2011).

Florida’s JEAC was one of the first to advise that judges were prohibited

from adding attorneys who appear before them as “friends” on their Facebook page

or from allowing attorneys who appear before them to add them as “friends” on the

attorneys’ Facebook pages based on the JEAC’s conclusion that a judge’s selection

of Facebook “friends” necessarily “conveys or permits others to convey the

impression that they are in a special position to influence the judge” in violation of

- 17 -
Canon 2B of the Florida Code of Judicial Conduct. Fla. JEAC Op. 2009-20 (Nov.

17, 2009). 3 The JEAC has since reaffirmed its support of the minority position and

extended the reasoning of the minority position to other social media and social

networking services including LinkedIn and Twitter. See Fla. JEAC Op. 2013-14

(July 30, 2013) (extending the reasoning of the minority position to Twitter); Fla.

JEAC Op. 2012-12 (May 9, 2012) (extending the reasoning of the minority

position to LinkedIn); Fla. JEAC Op. 2010-06 (Mar. 26, 2010) (reaffirming its

support of the minority position).

The overarching concern of the JEAC is that a reasonably prudent person

would fear that he or she could not receive a fair and impartial trial based solely on

the fact that a judge and an attorney appearing before the judge are Facebook

“friends” of an indeterminate nature. For the reasons we have explained, we

conclude that concern is unwarranted. The correct approach is that taken by the

majority position, which recognizes the reality that Facebook “friendship,”

standing alone, does not reasonably convey to others the impression of an

inherently close or intimate relationship that might warrant disqualification.

3. Canon 2B of the Florida Code of Judicial Conduct provides that a judge

shall not “convey or permit others to convey the impression that they are in a
special position to influence the judge.”

- 18 -
 In its 2009 Opinion, the JEAC relied on the “selection and communication

process” of Facebook “friendship” in support of its conclusion that Facebook

“friendship” between a judge and an attorney appearing before the judge

reasonably “convey[s] or permit[s] others to convey the impression that they are in

a special position to influence the judge.” Fla. JEAC Op. 2009-20 (Nov. 17, 2009)

(quoting Fla. Code Jud. Conduct, Canon 2B)). But by focusing on the public

nature of Facebook “friendship,” the JEAC missed the intrinsic nature of Facebook

“friendship.” It is commonly understood that traditional “friendship” involves a

“selection and communication process,” albeit one less formalized than the

Facebook process. 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. Nevertheless, this Court has

consistently recognized that an allegation of mere friendship between a judge and a

litigant or attorney appearing before the judge, standing alone, does not constitute a

legally sufficient basis for disqualification. See, e.g., MacKenzie, 565 So. 2d at

1338; Ervin, 85 So. at 833-34; Ball, 29 So. 2d at 735. If traditional “friendship,”

without more, does not reasonably convey or permit others to convey the

impression that they are in a special position to influence the judge, then surely

- 19 -
Facebook “friendship”—which exists on an even broader spectrum than traditional

“friendship” and is regularly more casual and less permanent than traditional

“friendship”—does not reasonably convey such an impression. The JEAC’s

position simply cannot be reconciled with this Court’s longstanding treatment of

disqualification motions based on mere allegations of traditional “friendship.”

CONCLUSION

In some circumstances, the relationship between a judge and a litigant,

lawyer, or other person involved in a case will be a basis for disqualification of the

judge. Particular friendship relationships may present such circumstances

requiring disqualification. But our case law clearly establishes that not every

relationship characterized as a friendship provides a basis for disqualification. And

there is no reason that Facebook “friendships”—which regularly involve

strangers—should be singled out and subjected to a per se rule of disqualification.

We approve Herssein and disapprove Domville.

It is so ordered.

POLSTON, LABARGA, and LAWSON, JJ., concur.

LABARGA, J., concurs with an opinion.
PARIENTE, J., dissents with an opinion, in which LEWIS and QUINCE, JJ.,
concur.

ANY MOTION FOR REHEARING OR CLARIFICATION MUST BE FILED

WITHIN SEVEN DAYS. A RESPONSE TO THE MOTION FOR
REHEARING/CLARIFICATION MAY BE FILED WITHIN FIVE DAYS
AFTER THE FILING OF THE MOTION FOR REHEARING/CLARIFICATION.

- 20 -