Facebook “Friends” Aren’t Necessarily Real Friends

Florida’s Third District Court of Appeal has decided that a Facebook friendship doesn’t necessarily signify a close relationship warranting automatic disqualification of a judge. The decision allows Miami-Dade Judge Beatrice Butchko to remain on a case in which she is a Facebook “friend” with a lawyer representing a potential witness and potential party in the pending litigation.

In the decision, the court notes its disagreement with another Florida appeals court. In a 2012 decision, the Fifth District Court of Appeal held that a judge had to disqualify himself because he was Facebook friends with the prosecutor.

In its decision, the Third District Court of Appeal emphasized that “some of a member’s Facebook ‘friends’ are undoubtedly friends in the classic sense” and that a relationship between a judge and a lawyer may, under certain circumstances, warrant disqualification. But, the court noted, “[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.”

Read the full opinion here.

Attorneys v. Clients: Clients Ordered to Pay $350K for Online Defamation

As the old adage goes, “It takes 20 years to build a reputation and 5 minutes to ruin it.”  Disgruntled clients are increasingly posting defamatory reviews on widely available public online attorney review websites. Some attorneys have begun fighting to protect their online reputations by filing defamation suits against their former clients.

On January 6, Florida’s Fourth District Court of Appeal held that the First Amendment does not protect demonstratively false allegations that a former client wrote about her attorney and posted online. The court determined that the comments posted on Avvo and other attorney review websites were factually inaccurate statements rather than statements of opinion. The comments included claims that the attorney misrepresented her fees and falsified a contract to support the increase in fees.  The court ordered the client and her husband to pay $350,000.00 in punitive damages for defamation

The court’s decision has been hailed as a potential turning point in the online battle among some attorneys and their clients that is damaging to attorneys’ reputations. However, it is important to note that a similar ‘client vs. lawyer’ defamation case in another state may not result in a similar award; Florida statutes allow targets of per se defamation to recover punitive damages even when the plaintiff cannot demonstrate a quantifiable loss. By contrast, there are higher evidentiary burdens in other jurisdictions that require punitive damages to be based on the amount of actual damages. Without a calculable loss, this burden would create a barrier to achieving a similar result.

To read the trial court’s opinion, click here.

Federal Court: Florida Limitations on Advertising Specialization Are Unconstitutional

On September 30, 2015, a Florida federal court held that the Florida advertising rule that prohibits an attorney from truthfully stating that he or she specializes in a specific field of law is a violation of the First Amendment and therefore unconstitutional. The rules currently require that a lawyer may only claim a specialization or expertise when the lawyer has been certified under the Florida Certification Plan, or by an organization whose specialty certification program has been accredited by the American Bar Association or the Florida Bar; or the lawyer has been certified by another state bar if the state bar program grants certification on the basis of standards reasonably comparable to the standards of the Florida Certification Plan. The opinion explains that, “the state cannot prevent a person from advertising a lawful specialty, even if the state’s own definition of the specialty is different.”

The issue is one of several in the Searcy, Denny law firm’s suit against the Florida Bar. The claim partially derives from the fact that not every field of law has a board certification. Therefore, according to the Florida rule, an attorney who specializes in mass torts or unsafe products cases is not permitted to truthfully state that he specializes in these fields, because there is no board certification available.

Florida has some of the most detailed advertising rules in the country; however, the rule at issue is a common one.  It will be interesting to see whether other states amend their rules in accordance with the Florida opinion.

For more information on the recent decision, click here. To read the opinion click here.

Judges on Facebook: Exercising First Amendment Rights or Violating the Judicial Canons?

There is no doubt that since the inception of Facebook in 2004, various other social media networks have sprung up allowing people to share and exchange information instantly. As of the second quarter of 2015, Facebook had nearly 1.49 billion monthly active users.[1] Originally a social networking website geared towards college students, Facebook has grown to market its services to people of all ages, backgrounds, and professional occupations. As social media continues to become a part of people’s everyday lives, many have predicted that this is a long-term trend that will be continuously refined so that people turn to interacting and behaving online as they do in their everyday lives. But with this dependency on online social networking comes potential consequences that can affect many groups of people, including the legal profession.

The American Bar Association reported in its most recent Legal Technology Survey that about 62% of law firms maintain social networks. This can include, for example, LinkedIn, Facebook, Twitter and Instagram. In fact, 78% of individual lawyers maintain one or more social networks, and spend on average 1.7 hours per week using these sites for professional purposes.[2]

But what about in the courtroom? Is it ethical for a judge to use social media to comment and express his or her opinion on a case unfolding in the judge’s courtroom? Unfortunately for one District Court judge in Texas, Facebook updates about a trial over which she was presiding resulted in a reprimand by the State Commission on Judicial Conduct.

This story began during the criminal jury trial of State v. David M. Wieseckel, which was held in Judge Michelle Slaughter’s court. The defendant, Wieseckel, was charged with unlawful restraint of a child for allegedly keeping a 9-year-old boy in a wooden enclosure.

Judge Slaughter’s social media saga began a few days before the commencement of the trial when she posted on her Facebook page: “We have a big criminal trial starting Monday! Jury selection Monday and opening statements Tues. morning”. However, it wasn’t until after the first day of testimony when Judge Slaughter posted several comments on her Facebook page that ethical issues allegedly emerged.

The following are the Facebook comments that led defense counsel to file a motion to recuse Judge Slaughter from the case:

“Opening statements this morning at 9:20 am in the trial called by the press ‘the boy in the box’ case.”

“After we finished Day 1 of the case called the “Boy in the Box” case, trustees from the jail came in and assembled the actual 6”x 8’ box inside the courtroom!”

“This is the case currently in the 405th!” [This post included a link to a Reuters article entitled “Texas father on trial for putting son in a box as punishment”].

The issue raised about these comments was that the box to which she referred had not yet been admitted into evidence at the trial.

As a result of these comments, defense counsel filed motions to recuse Judge Slaughter from the case and for a mistrial and she was removed from the Wieseckel case. The case was transferred to another court and the judge in that court granted the defendant’s motion for mistrial. Judge Slaughter’s behavior was criticized on social media despite her argument that she made her comments with the intention of promoting transparency and to encourage individuals to come watch the proceedings.

The State Commission on Judicial Conduct (Commission) did not share the Judge’s perspective. After considering the relevant standards of judicial conduct, including Canon 3B(10) of the Texas Code of Judicial Conduct and Canon 4A, the Commission concluded that Judge Slaughter’s comments “went beyond providing an explanation of the procedures of the court” and instead “highlighted evidence that had yet to be introduced at trial”. Further, the Commission stated that “Judge Slaughter cast reasonable doubt upon her own impartiality and violated her own admonition to jurors by turning to social media to publicly discuss cases pending in her court, giving rise to a legitimate concern that she would not be fair or impartial in the case”.

On April 20, 2015, the Commission issued a Public Admonition and Order of Additional Education to Judge Slaughter requiring her to obtain four hours of instruction, with a mentor and in addition to her required judicial education, on the proper and ethical use of social media by judges.

Judge Slaughter appealed the sanction to a special court of review based upon First Amendment claims. On July 20, 2015, Justice Charles Kreger of the 9th Court of Appeals, Justice Gina Benavides of the 13th Court of Appeals, and Justice John Bailey of the 11th Court of Appeals heard arguments and evidence in the trial de novo. The crux of Judge Slaughter’s argument is that this particular proceeding is going to chill the exercise of the right to free speech as the matters that occur within the courtroom are of public concern. The Court of Appeals has not yet issued its decision.-This case is a prime example of the tension between the First Amendment and the judicial canons that may arise when the judiciary engage in social media however well-intentioned.

[1] http://www.statista.com/statistics/264810/number-of-monthly-active-facebook-users-worldwide/

[2] American Bar Association, 2014 Legal Technology Survey Report, available at http://www.americanbar.org/groups/departments_offices/legal_technology_resources/publications.html

Personally Soliciting Contributions: A “Don’t” for Judicial Candidates in Florida

In an opinion released in late April, the U.S. Supreme Court voted 5-4 to uphold Florida’s ban on judicial candidates’ personal solicitation for campaign contributions. Justice Roberts noted that regulations on judicial candidate fundraising can be stricter than regulations on legislative and executive fundraising because of the judiciary’s unique role that gives rise to the state’s interest in promoting public confidence in the judiciary’s integrity.

The case of Williams-Yulee v. The Florida Bar reached the Supreme Court on appeal by a Tampa attorney, Lanell Williams-Yulee, who the Florida Bar reprimanded for directly soliciting judicial campaign contributions in 2009. Williams-Yulee had posted a letter online and distributed the letter “via mass mailing”. The Florida Bar prosecuted Williams-Yulee for violating Florida’s Rule of Professional Conduct 4-8.2, which requires attorneys who are candidates for judicial office to follow Florida’s Code of Judicial Conduct. Florida Judicial Canon 7C(1) prohibits personal solicitations and requires the creation of a committee to seek such campaign contributions.

The opinion is important across the country because 30 states have judicial campaign fundraising regulations similar to Florida’s.

You can find more information on the opinion in this article from the Florida Bar News. To read our earlier blog post on the topic, click here.