Grappling with the question of Facebook friends being unreal, the Supreme Court of Florida, USA, stated that the existence of a Facebook Friend relationship between a judge and a lawyer presenting before him are not sufficient grounds for them to be disqualified. The subordinate court’s decision in Domville vs. State was overruled by Chief Justice Charles Canady on 15th of November 2018 and stated 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.”
Who was the one to appeal?
Herrsein & Herrsein, a law firm, was the one to appeal to the Supreme Court. It all started when the law firm moved a motion during the trial proceeding, asking to disqualify Miami-Dade County Circuit Judge Beatrice Butchko in a legal battle against the United States Automobile Association. The reason they quoted was Beatrice Butchko’s Facebook friendship with opposing counsel’s Israel Reyes. When Butchko refused to step down, and the District Court dismissed this issue, the law firm approached the Supreme Court of Florida.
When questioned, attorney Maury Udell representing Herssein & Herrsein said while he was not against judges using Facebook, he was categorically against judges displaying impropriety through maintaining such social media relationships that had the potential to make people skeptic about the degree of fairness on their part.
Florida Judicial Ethics Committee felt otherwise.
The 4:3 majority ruling in superseding the subordinate court’s decision in Domville vs State, even went against the Ethics Committee that said, “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.”
Justice Canady, however, went on to speak for the decision concurred upon by Justice Ricky Polston, Jorge Labarga, Alan Lawson and himself. His point was when real friendships are not a basis for disqualification, how can one count Facebook friendship as a basis for the same while acknowledging the fact that Facebook friends are to a large extent, ‘virtual’, and can sometimes be ‘complete strangers’.
The 20-page ruling has a very philosophical tone to it, reflective about the nature of friends and friendship. It speaks in detail about how a person is comparatively more involved in a traditional friendship than merely be Facebook connections. If a person is intimate with another, he/she introduces him in public, spends time with him in real dimensions and is genuinely seen speaking to him at least once, if not more. Merely sharing a Facebook friendship cannot and does not objectively hint at the “existence of the affection and esteem involved in a traditional ‘friendship’.
The absence of harsh criticism of judges’ Facebook friendships notwithstanding, Justice Labarga came forward advising judges to review their activity carefully on social media sites. Though he was a part of the majority, he said that being friends with lawyers on Facebook did mean inviting trouble. According to him, Facebook is a wonderful platform to connect with family and long-forgotten friends. However, profession and personal lives are not to be mixed and attorneys should not appear on their friend lists.
What does the Indian judiciary have to say about the issue?
So far, there does not factually exist a serious law passed revolving around judges in India and their social media usage. Nevertheless, a couple of unique events have shed light as to which path the Indian legal system is inclined toward.
On August 27, 2018, when an over enthusiastic group of judicial officers decided to build up a ‘Facebook-friendship-club-culture’ with the country men, the Chief Justice of Jammu and Kashmir, N Paul Vasanthakumar, reprimanded the judicial officers. The action was termed a ‘misdemeanor’ and a violation of the code of conduct on their part. The judges and lawyers of J&K are now confined to 140 characters of Twitter when it comes to expression.
In another trial, a judge in Mumbai lost his case after one of the attorneys ‘commented’ on his Facebook post. In April 2018, while the judge tried to preside over a property dispute between two families, the additional sessions judge brought the Facebook matter to the Principal Judge’s notice and the case was transferred.
There are a plethora of opinions regarding a judge’s Facebook relations. While there are people who believe going online may bring about a sense of transparency, others feel that such presence may impact their judgements. In fact, if research is to be believed, in 2014 a survey with 252 judges as participants revealed that 44.5% of them thought they could use Facebook without getting entangled in ethical concerns. However, 27% of them completely refused and said judges must not use Facebook, and that adopting a ‘precaution is better than cure’ approach. So although Indian judges need not start unfriending their lawyer friends, it may not be very advisable to add them in the first place. The conundrum is on and a settling answer will be reached only when this question enters the domain of Indian Law. Until then, it is better safe than sorry.