The Oklahoma Bar Journal August 2023

the 3rd District Court of Appeal found that a Facebook friendship alone does not prove a close rela tionship between the parties and, as a result, affirmed the trial court’s decision to deny the motion. This decision caused a split in Florida’s District Courts of Appeal, so the Florida Supreme Court reviewed the issue in Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Association . 15 The Florida Supreme Court upheld the decision of the 3rd District Court of Appeal to deny the disqualification motion and rejected the Florida Judicial Ethics Advisory Opinion Committee’s bright-line rule of disqualification. The Florida Supreme Court went as far as to criticize the committee for misunderstanding the “intrinsic nature of Facebook ‘friendship’” and placing too much focus on a Facebook “friendship” without con sidering other factors in evaluating the relationship between a judge and attorney or litigant. 16

public confidence in their inde pendence, impartiality, integrity and competence.” 8 The panel articulated a test for the appearance of impropriety rooted in Canon 1, Rule 214(C) for determining whether a judge’s use of social media violates the Judicial Code of Conduct. That rule stated, “A Judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the Judge.” 9 “The test for appearance of impro priety is whether the conduct would create in reasonable minds a per ception that the Judge violated this code or engaged in other conduct that reflects adversely on the Judge’s honesty, impartiality, temperament, or fitness to serve as a Judge.” 10 The Oklahoma Supreme Court has adopted the more stringent approach articulated by the panel in decisions disqualifying judges who were “friends” with a lit igant or attorney on Facebook. For example, a judge presiding over a divorce case was asked to be recused by one of the parties because the judge was a Facebook friend of the complaining party’s spouse. The trial court denied the motion to disqualify the judge, finding that the judge and the liti gant were not actually friends. The judge had thousands of Facebook friends and accepted all Facebook friend requests. Using the impro priety test, the trial court found that an objective observer would not reasonably question the judge’s impartiality because the judge and the litigant’s spouse had a Facebook friendship; that relation ship alone was not close enough to influence the judge’s ability to remain impartial. The Oklahoma Supreme Court disqualified the judge in an unpublished decision. 11

EVOLVING SOCIAL MEDIA STANDARDS IN OTHER STATES The stringent social media policy adopted in Oklahoma is based on decisions in other states, including Florida’s Judicial Ethics Advisory Opinion 2009-20 that “prohibits a Judge from adding lawyers who appear in the Judge’s court as ‘friends’ ... as being violative of the canon.” 12 The panel extended the restriction to “social workers, law enforcement officers, or others who regularly appear in court in an adversarial role.” 13 One notable dif ference is in Florida’s opinion court: Staff were prohibited to be added as “friends,” and Oklahoma’s does not extend that prohibition. 14 However, that Florida opinion was subsequently reversed in 2018 by the Florida Supreme Court. The case involved a party to a lawsuit who sought a judge’s disqualification based on her Facebook friendship with an attorney who represented a potential party in the pending litigation. The trial court denied the motion to disqualify, and on appeal,

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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THE OKLAHOMA BAR JOURNAL