By Elena Gurevich
Last month, the American Bar Association ABA Standing Committee on Ethics and Professional Responsibility, which develops model ethics standards for attorneys and judges, took on the judiciary’s use of the web in trial work.
The committee published Formal Opinion 478, “Independent Factual Research by Judges Via the Internet,” highlighting how “a vast amount of information available on the Internet exposes judges to potential ethical problems.” Released Dec. 8, the opinion is available at http://bit.ly/2mOetAr.
The formal opinion may have implications for alternative dispute resolution. It defines the term “judge” as “anyone who is authorized to perform judicial functions, including an officer such as a justice of the peace, magistrate, court commissioner, special master, referee, or member of the administrative law judiciary.” See Model Code of Judicial Conduct, Application § I(B)(2011).
The question is whether it can be inferred that arbitrators fall into this category as well, subjecting their neutrals’ roles to the opinion’s rules.
The general rule, the opinion notes, is Model Code of Judicial Conduct Rule 2.9(C). The rule states: “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.” A comment to the rule says the ban on investigating facts “extends to information available in all mediums, including electronic.”
In the opinion, the committee stresses a distinction between the “legislative facts”—defined as “general facts which help the tribunal decide questions of law and policy and discretion”—and “adjudicative facts,” which are facts “concerning the immediate parties—who did what, where, when, how, and with what motive or intent.”
The opinion notes that “research of legislative facts does not raise the same due process concerns as research of adjudicative facts.”
The ABA provides guidelines in the opinion for independent Internet factual research by judges. These guidelines are designed to help judges decide whether to independently investigate facts on the Internet.
They include (1) assessing whether additional information is necessary to decide the case, and (2) whether the judge is corroborating or discrediting facts, or filling in factual gaps in the record—and, where, in the case adjudicative facts, it would be improper to do so.
But there is still a possibility that a judge can misjudge—pun intended—a situation when it comes to verifying sources. For example, a third guideline states that when a judge is “seeking general or educational information that is useful to provide the judge with a better understanding of a subject unrelated to a pending or impending case . . . [then] the inquiry is appropriate. Judges may use the Internet as they would other educational sources, like judicial seminars and books.”
A fourth and final guideline looks at a judge seeking background information about a party or subject matter of a case.
The question with these guidelines is what if, while doing research unrelated to a case, a judge stumbles upon and reads something that is related? The research might start as a need for a better understanding, but the moment a judge obtains that information it can affect his or her judgment.
The ABA underscores that the key inquiry for the judge is “whether the information to be gathered is of factual consequence in determining the case.” The opinion, which illustrates its points with hypothetical examples, continues, “If it is, it must be subject to testing through the adversary process.”
The opinion also equates general background learning on the Internet to “attending judicial seminars or reading books”, but warns that it can be of service “so long as there is reason to believe the source is reliable.”
And here lies another problem: the definition of “reliable.” To different individuals, it is all a matter of perspective. To some prominent judges, Wikipedia has been a reliable source. See, e.g., Lubavitch-Chabad of Illinois Inc. v. Northwestern Un., 772 F.3d 443 (2014)(7th Cir. 2014)(available at http://bit.ly/1xu1bZt).
For judges, the dangers are not only on the World Wide Web, but even in the court’s computerized records systems, where judges are essentially urged to rely on their skill and capability in order to get the search right. The committee quotes Illinois Judicial Ethics Opinion 2016-02, which cautions judges that
the particular judge’s competence to navigate the computerized court records is essential . . . only facts which are ‘not subject to reasonable dispute’ are the proper subject of judicial notice. The judge must be confident that his or her review will lead to accurate information. For example, indexes of computerized court records are likely to contain individuals with the same name; is the inquiring judge capable of finding the appropriate records and accurately matching them to the party in question? Judges must be aware of their own skills and, more importantly, their limitations. . . . [Emphasis is in the opinion.]
The bottom line is that judges are walking a fine line every time they are taking on a case. After all, it is very easy to make a mistake when it’s only one click away.
The opinion also notes that Model Rule 2.9(D) requires judges to make sure the court staff and officials do not perform improper independent investigations.
The ABA’s website explains that 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.”
ABA Formal Opinions have been cited as persuasive when courts around the nation interpret state-adopted Rules of Professional Conduct.
Formal Opinion 478 and previous ABA ethics opinions are available on the ABA Center for Professional Responsibility website under “Latest Ethics Opinions,” or directly at the link above. For more analysis, see Debra Cassens Weiss, “May judges search the internet for facts? ABA ethics opinion sees problems,” ABA Journal (Dec. 8)(available at http://bit.ly/2DpkC1a).
The author is a CPR Institute intern.