Law Offices of Herssein and Herssein, P.A., etc., et al., Petitioners,
United Services Automobile Association, Respondent.
final until disposition of timely filed motion for rehearing.
of Original Jurisdiction - Prohibition Lower Tribunal No.
Herssein Law Group, and Reuven Herssein, for petitioners.
& Bowen LLP, and Frank A. Zacherl and Patrick G. Brugger,
FERNANDEZ, LOGUE, and SCALES, JJ.
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
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.
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
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
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).
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