Business Litigation Perspectives - Insights & Commentary on Business Legal Issues

How would you feel if you were a party to a lawsuit and the judge was a Facebook friend of the other side's attorney?  Would you think the judge could be fair? What if it were a criminal case? Would that make a difference? 

That is one of the questions being certified to the Supreme Court of Florida in the case Domville v. State of Florida, 38 Fla. L. Weekly D150a.  Specifically, where the presiding judge in a criminal case has accepted the prosecutor assigned to the case as a Facebook "friend," would a reasonably prudent person fear that he could not get a fair and impartial trial, so that the defendant's motion for disqualification should be granted?

The Fourth District Court of Appeal determined that the underlying judge should have disqualified himself from the case, but has certified the question to the Supreme Court as a question of great public importance.  It was noted by the judges who agreed with the majority opinion that "a person who accepts the responsibility of being a judge must also accept the limitations on personal freedom." "Judges do not have the unfettered social freedom of teenagers."

The reality is that most judges are friends with lawyers.  They are lawyers themselves.  They attend social events with lawyers all the time, but that is not always known by parties involved in litigation. So when does a friendship cross the line where the judge should recuse him/herself from a particular case?

Most judges know the answer to that question and will recuse him/herself when they feel that their relationship with an attorney would not allow them to be fair and impartial to the other side.  Judges recuse themselves from cases all the time for all sorts of reasons, including because of a relationship with a particular lawyer.

The only difference is with the advent of social media, you now have access to information that you may not have otherwise been privy to in the past.  Nonetheless, Florida does have an ethical rule prohibiting judges from being Facebook friends with lawyers who may appear before them.  Until the Supreme Court of Florida agrees to hear the question, however, the safest course of action for a judge is to not accept a friend request on Facebook.

"Friending" the Jury, obviously it is a bad idea, but, these days, social media status updates and friend requests are becoming part of the trial landscape.  In England a juror was recently sentenced to eight months in jail for "friending" and messaging the defendant in the middle of a multi-million dollar drug trafficking trial. The Court was forced to declare a mistrial.

In an effort to avoid such disasters, Florida's Standard Jury Instructions provide detailed instructions to be read to the jury at the outset of their selection to the jury pool, stating:

Many of you have cell phones, computers, and other electronic devices. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers. You must not use any device to search the Internet or to find out anything related to any cases in the courthouse. . .

In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case.

Despite being given such instructions, jurors are routinely using Facebook, twitter, and other internet services during the course of a trial. 

In a recent jury trial, I integrated a review of social network sites into the voire dire process.  Of the inital round of 24 potential jurors, about half had Facebook profiles and the majority of the Facebook profiles allowed some, or all, of their Facebook profile to be shared publicly.  At least two of the jurors had posted a status update about the case and one of the jurors actually posted racist comments about the Plaintiff.

With the increasing value of jurors' social media postings to the voire dire process, the Committee on Professional Ethics, for the New York County Lawyers' Association, has written an opinion on the propriety of this social media surveillance.  The NYCLA determined that, under the NY ethics rules, it was permissible for an attorney to conduct social media surveillance during voire dire and over the course of the trial. However, the NYCLA opinion warned that it was improper for an attorney to "'friend,' email, send tweets to jurors or otherwise communicate in any way with the juror, or act in any way by which the juror becomes aware of the monitoring."  

Based on the NYCLA opinion, an attorney can monitor any publicly available information a juror is providing, but cannot friend or otherwise obtain access to any private information of the juror.  Interestingly, the NYCLA opinion concludes that an attorney cannot subscribe to a juror's twitter feed, reasoning that the mere act of subscribing would constitute unethical juror communication.