December 08, 2017

ABA issues ethical guidance on when judges should use the internet for independent factual research

CHICAGO, Dec. 8, 2017 — The American Bar Association Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 478  that provides the nation’s judicial branch guidance related to the ethical boundaries of independent factual research on the internet.

The guidance is consistent with the ABA Model Code of Judicial Conduct, but notes that judicial notice is governed by the law of evidence in each jurisdiction. The opinion draws a bright-line distinction between independent investigation of “adjudicative facts” and research of “legislative facts” of law and policy. Formal Opinion 478 also provides guidance on internet research by judges of the lawyers and the parties involved in the case.

“Stated simply, a judge should not gather adjudicative facts from any source on the Internet unless the information is subject to proper judicial notice,” Formal Opinion 478 said. “Further … judges should not use the Internet for independent fact-gathering related to a pending or impending matter where the parties can easily be asked to research or provide the information. The same is true of the activities or characteristics of the litigants or other participants in the matter.”

The opinion provides five hypothetical situations, and provides an analysis of each and how they might be handled by a judge.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to advise lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.

Formal Opinion 478 and previous ABA ethics opinions are available on the ABA Center for Professional Responsibility website under “Latest Ethics Opinions.”

Go to www.abalegalfactcheck.com for the ABA’s new feature that cites case and statutory law and other legal precedents to distinguish legal fact from fiction.

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