An opinion from the ABA’s Standing Committee on Ethics and Professional Responsibility concludes that judges risk violating the Model Code of Judicial Conduct if they consult the Internet regarding parties or facts in pending cases.
In clarifying the application of Model Rule of Judicial Conduct 2.9(c), Formal Opinion 478 provides strict limitations on judicial use of the still-evolving medium of Internet research. While “legislative facts” that go to general policy questions are fair game, the opinion concludes, judges should not use the Internet to fill in “adjudicative facts” affecting the outcome of a specific dispute.
An Emerging Issue
Model Rule 2.9(c) states that a “judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.” Comment 6 to the rule clarifies that the “prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.” As the Standing Committee on Ethics and Professional Responsibility advises, “whether truthful or not, information discovered by a judge via the Internet that does not qualify for judicial notice and is not disclosed to the parties is untested by the adversary process.”
The fact that the standing committee devoted time to this issue suggests that it may be fairly prevalent, advises Scott E. Reiser, Roseland, NJ, cochair of the ABA Section of Litigation’s Ethics & Professionalism Committee. Indeed, there appear to be scores of decisions—including more than thirteen from circuit courts of appeal—that have expressly relied on Internet sources.
“Importantly,” the standing committee advises, “Rule 2.9(C) does not preclude legal research.” A judge may also use the Internet to obtain judicial records from other proceedings, which are generally subject to judicial notice. Meanwhile, a judge is permitted to research general or educational information. For example, it would not be inappropriate for a judge to research general environmental information about an area where he or she expects to adjudicate environmental claims, but has no pending case to which that information applies.
Although a judge may participate in social media, it is improper for the judge to investigate the parties through that medium. Similarly, it is inappropriate for a judge to investigate counsel on social media if the investigation will influence the judge’s resolution of “adjudicative facts,” according to the standing committee.
As opposed to “legislative facts” that “do not usually concern the immediate parties,” “adjudicative facts” are those “that normally go to the jury in a jury case.” Opinion 478 provides the example of a judge investigating the hours that a business is open, which would constitute inappropriate research of adjudicative facts if the defendant had argued that the business was not open for the number of hours that the plaintiff had alleged.
Disclosure Is Key
Section of Litigation leaders conclude that independent judicial research of the facts may not always be harmful. Where the research occurs and is disclosed in advance of trial, there may be little or no prejudice because the parties can address any issues before fact conclusions are reached, according to Reiser.
Despite the relative novelty of Internet sources, “this is not a substantially different analysis than when a judge relies on a learned treatise or other source that the parties did not bring to the court’s attention,” Reiser continues. A practitioner who suspects that a judge has engaged in impermissible Internet research should treat it like “any other judicial error: make an objection and a record and then deal with the issue as necessary.”
In fact, a lawyer is bound by a duty to bring the issue to the court’s attention, says Charles S. Fax, Bethesda, MD, Section member. “If a lawyer has a good-faith basis to believe that a judge may be violating the strictures of the rule, in my opinion the lawyer should raise the issue with the court by referencing the problematic statement, finding, or ruling, reminding the judge of the ethical rule and its meaning, and respectfully asking the judge whether there may be an issue,” Fax says.
Lauren M. Gregory is an associate editor for Litigation News.
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