by Raymond J. McKoski// ABA Journal
In Formal Opinion 478, the ABA Standing Committee on Ethics and Professional Responsibility addresses the restrictions imposed by the 2007 ABA Model Code of Judicial Conduct on a judge searching the internet for information helpful in deciding a case. The ABA opinion concludes that Rule 2.9(C) of the Model Code prohibits a judge from researching adjudicative facts on the internet unless a fact is subject to judicial notice.
Rule 2.9(C) clearly and definitively declares 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.” Acknowledging the integral part that search engines play in everyday life, Comment 6 to Rule 2.9 bluntly tells judges that the prohibition “extends to information available in all mediums, including electronic.”
While recognizing that the internet, including social networking sites, provides immediate access to a limitless amount of information potentially useful to a judge laboring over difficult case-specific factual issues, the recent ABA opinion highlights two important justifications for the prohibition against electronic factual research.
First, information found on the web may be fleeting, biased, misleading and sometimes downright false. Second, unless the narrow judicial-notice exception applies, gathering even trustworthy information from the internet compromises the division of responsibility between the judge and the parties so essential to the proper functioning of the adversarial system. The committee emphasizes this point by describing the “defining feature” of the judicial role as a judge’s duty to base decisions only on evidence presented in court and available to the parties.
The limitations on independent factual research by judges are not solely a matter of judicial ethics. Rule 2.9(C) is one of the few provisions of the Model Code that integrates an evidentiary rule into an ethical standard. Rule 2.9(C) permits a judge to consider a fact from sources other than the evidence submitted by the parties as long as the judge abides by his or her jurisdiction’s requirements for taking judicial notice of the fact. Incorporating a rule of evidence into an ethical rule complicates the analysis because, as noted by the committee, judicial notice standards and procedures vary significantly from jurisdiction to jurisdiction.
To illustrate how Rule 2.9(C) and the doctrine of judicial notice interface, the committee examines Federal Rule of Evidence 201, which governs judicial notice. FRE 201(a) and (b) permit judicial notice of a fact that relates to the parties in a case (an adjudicative fact) only when that fact is “not subject to reasonable dispute” because it is (1) “generally known” or (2) “accurately and readily determined” from a source “whose accuracy cannot reasonably be questioned.” Even if a “fact” meets this rigorous test, the judge must provide the parties with an opportunity to contest the need to notice the fact and a chance to challenge the accuracy of the fact. Like most state rules governing judicial notice, the federal rule only bars judicial notice of adjudicatory facts. The doctrine does not restrict a judge’s independent research of legislative facts, such as statistical, sociological and economic studies, which differ from adjudicative facts in that they are not unique to the litigants but are facts that assist a judge in deciding questions of law or policy.
The committee offers four guidelines to help judges determine the ethical propriety of investigating facts on the internet. Because the guidelines are by necessity general in nature, the committee also provides hypothetical scenarios to illustrate their application.
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