Law Offices of Herssein & Herssein, P.A. v. United Servs. Auto. Ass'n, 3D17–1421

• Decision Date: 23 August 2017
• Docket Number: No. 3D17–1421,3D17–1421
• Citation: 229 So.3d 408
• Parties: LAW OFFICES OF HERSSEIN AND HERSSEIN, P.A., etc., et al., Petitioners, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Respondent.
• Court: Florida District Court of Appeals

229 So.3d 408

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

v.UNITED SERVICES AUTOMOBILE ASSOCIATION, Respondent.

No. 3D17–1421

District Court of Appeal of Florida, Third District.

Opinion filed August 23, 2017

Rehearing Denied October 2, 2017

Herssein Law Group, and Reuven Herssein, for petitioners.

Shutts & Bowen LLP, and Frank A. Zacherl and Patrick G. Brugger, for respondent.

Before FERNANDEZ, LOGUE, and SCALES, JJ.

LOGUE, J.

The Law offices of Herssein and Herssein, P.A. (Herssein Firm) and Reuven Herssein, petition this court for a writ of prohibition to disqualify the trial court judge below. We deny the petition. Although Petitioners raise three grounds, we write 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.

The Herssein Firm sued its former client, United Services Automobile Association (USAA), for breach of contract and fraud. In the course of the litigation, Herssein accused one of USAA's executives of witness tampering and has indicated that the executive is a potential witness and a potential defendant. In response, USAA hired Israel Reyes, an ex-circuit court judge, to represent the executive.

On June 8, 2017, the Herssein Firm filed a motion to disqualify the trial judge. The motion is based in part on the fact that Reyes 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 trial judge] being Facebook friends with Reyes, I ... believe that Reyes, [the executive's] lawyer has influenced [the trial judge]." The trial court denied the disqualification motion, and the Herssein Firm filed this petition for writ of prohibition.

The test for determining the legal sufficiency of a motion for disqualification is whether "the facts alleged (which must be taken as true) would prompt a reasonably prudent person to fear that he could not get a fair and impartial trial." Molina v. Perez, 187 So.3d 909, 909 (Fla. 3d DCA 2016) (quoting Brofman v. Fla. Hearing Care Ctr., Inc., 703 So.2d 1191, 1192 (Fla. 4th DCA 1997) ). Our review of the facts focuses on "the reasonable effect on the party seeking disqualification, not the subjective intent of the judge." Haas v. Davis, 37 So.3d 983, 983 (Fla. 3d DCA 2010) (quoting Vivas v. Hartford Fire Ins. Co., 789 So.2d 1252, 1253 (Fla. 4th DCA 2001) ).

The issue in this case is therefore 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. At the outset, we note as a general matter, that "allegations of mere ‘friendship’ with an attorney or an interested party have been deemed insufficient to disqualify a judge." Smith v. Santa Rosa Island Auth., 729 So.2d 944, 946 (Fla. 1st DCA 1998). Indeed, the Florida Supreme Court has noted:

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.

MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1338 (Fla. 1990). And as Justice Overton explained in denying a request for recusal, "[i]f friendship alone with a lawyer or member of a firm is a basis for disqualification, then most judges in rural and semi-rural areas and many in metropolitan areas would be subject to disqualification in a large number of cases." Hayes v. Rogers, 378 So.2d 1212, 1220 (Fla. 1979).

Nevertheless, this authority does not foreclose the possibility that a relationship between a judge and a lawyer may, under certain circumstances, warrant disqualification. Indeed, in Domville v. State, 103 So.3d 184 (Fla. 4th DCA 2012), the Fourth District held that recusal was required when a judge was a Facebook "friend" with the prosecutor. The Fourth District based its holding on a 2009 Judicial Ethics Advisory Committee Opinion. Fla. JEAC Op. 2009–20 (Nov. 17, 2009). In its Opinion, the Committee advised that judges were prohibited from adding lawyers who appear before them as "friends" on their Facebook page or from allowing lawyers who appear before them to add them as "friends" on the lawyers' Facebook pages. The Committee focused on the fact that a judge on Facebook has an active role in accepting or rejecting potential "friends" or in inviting another to accept them as "friends." Id."It is this selection and communication process," the Committee advised, "that violates Cannon 2B, because the judge, by so doing, conveys or permits others to convey the impression that they are in a special position to influence the judge." Id.

A minority of the Committee disagreed. The minority believed that "the listing of lawyers who may appear before the judge as ‘friends' on a judge's social networking page does not reasonably convey to others the impression that these lawyers are in a special position to influence the judge." Id. They reasoned "the term ‘friend’ on social networking sites merely conveys the message that a person so identified is a contact or acquaintance; and that such an identification does not convey that a person is a ‘friend’ in the traditional sense, i.e., a person attached to another person by feelings of affection or personal regard." Id.

In 2010, the Committee advised that candidates for judicial office may add lawyers as "friends" on a social networking site even if those lawyers would later appear before them should the candidate be elected. Fla. JEAC Op. 2010–05 (March 19, 2010). It also reaffirmed, however, the advice in its 2009 advisory opinion that a judge may not be Facebook "friends" with a lawyer who appears before her, although a minority believed the committee should recede from its 2009 opinion. See Fla. JEAC Op. 2010–06 (March 26, 2010).

More recently, the Fifth District signaled disagreement with the Fourth District's Domville decision. In Chace v. Loisel, 170 So.3d 802, 803–04 (Fla. 5th DCA 2014), the Fifth District held that, in a dissolution of marriage case, a judge who sent the wife a Facebook friend request during the proceedings, which the wife rejected, made an ex-parte communication and was required to recuse himself. In so ruling, however, the Fifth District noted, "[w]e have serious reservations about the court's rationale in Domville." Id. Defining the word "friend" on Facebook as a "term of art," the Fifth District explained:

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.

Id.

We agree with the Fifth District that "[a] Facebook friendship does not necessarily signify the existence of a close relationship." We do so for three reasons. First, as the Kentucky Supreme Court noted, "some people have thousands of Facebook ‘friends.’ " Sluss v. Commonwealth, 381 S.W.3d 215, 222 (Ky. 2012). In Sluss, the Kentucky Supreme Court held the fact that a juror who was a Facebook "friend" with a family member of a victim, standing alone, was not enough evidence to presume juror bias sufficient to require a new trial. In Sluss, the juror in question had nearly two thousand Facebook "friends." Id. at 223. Another recent out-of-state case involved a trial judge with over fifteen hundred Facebook "friends" who was allegedly a Facebook friend with a potential witness, a local university basketball coach, who himself had more than...