Nicole Black, BridgeTower Media Newswires
It’s 2017, and just like the rest of us, judges are increasingly using the internet as part of their day-to-day workflow. After all, the online world is readily available to anyone with an internet-enabled device and there’s a wealth of information that is instantaneously accessible. So, why wouldn’t judges use the internet for research purposes?
Of course, given their unique position, conducting online research necessarily triggers ethical considerations. Fortunately, the American Bar Association released Opinion 478 last week (online: https://www.americanbar.org/content/dam/aba/images/abanews/FormalOpinion478.pdf), which provides guidance for judges seeking to conduct independent factual research online.
The Standing Committee on Ethics and Professional Responsibility explained that the internet can be a valuable resource for judges: “The Internet provides useful tools for discovering vast amounts of information. Searching reliable sources on the Internet may reveal information that educates, informs, and enlightens the judiciary, not unlike judicial seminars and printed materials.”
However, because the use of the internet by judges can present ethical landmines for judges, the committee issued the opinion to “help the judiciary navigate the hazards of Internet research, (and review) … the ethical parameters under the ABA Model Code of Judicial Conduct for conducting on-line independent fact-finding not tested by the adversary system.”
As discussed in the opinion, the potential ethical issues triggered when judges use the internet for research are: 1) ex parte communications (Model Rule 2.9(A), 2) the preclusion of independent factual research (Model Rule 2.9(C), 3) judicial notice of facts (Model Rule 2.9(C), and 4) a judge’s duty to supervise (Model Rule 2.9(D)).
The committee explained that judges may use the internet to conduct independent factual research in certain situations. Judges may use the internet to obtain educational information that would provide the judge with a better understanding of the subject matter. However, judges may not seek out information that is necessary to decide the case or that is adjudicative, including information that would corroborate, discredit or fill in factual information on the record.
When seeking background information about a party or the subject matter of a case, judges must proceed with caution as well. According to the committee, the “key inquiry … is whether the information to be gathered is of factual consequence in determining the case. If it is, it must be subject to testing through the adversary process.”
Next, the committee provided a number of useful hypotheticals to help judges walk through the ethical quandaries presented by various scenarios. The committee then summed up its findings, offering the following conclusion: “Information properly subject to judicial notice is well within the judge’s discretion to search and use according to the applicable law. On the other hand, adjudicative facts that are needed to determine an issue in a case, but which are not properly subject to judicial notice, may not be researched without violating Rule 2.9(C).”
Overall, Opinion 478 provides instructive guidance for judges seeking to use the internet for research. If you’re a sitting judge, you’ll find that the discussions regarding the hypotheticals are particularly useful.
The bottom line boils down to an oft-repeated principle I’ve shared many times over the years: The online is simply an extension of the offline. If you’re a judge and the research you’re seeking would violate your ethical obligations if obtained offline, using online tools to seek it out will likewise be unethical. It’s a simple concept, but opinions like this one offer much-needed clarity for judges who, like everyone else, are increasingly wading into the online world as part of their judicial duties.
And with that, I’m signing off until next year. See you in 2018, and I hope you enjoy the holiday season!
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycase.com.
