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Law Offices of Herssein and Herssein, P.A. v. United Services Automobile Association

Florida Court of Appeals, Third District

August 23, 2017

Law Offices of Herssein and Herssein, P.A., etc., et al., Petitioners,
United Services Automobile Association, Respondent.

         Not final until disposition of timely filed motion for rehearing.

         A Case of Original Jurisdiction - Prohibition Lower Tribunal No. 15-15825.

          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 ...

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