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ABA issues opinion on web research, adjudicative facts.

Byline: Kris Olson

For most, its become instinctual: Have a question? Google it. Ask Siri. But now the American Bar Associations Standing Committee on Ethics and Professional Responsibility has joined others in urging judges to resist that impulse in their decision-making, except in limited circumstances. Local attorneys say the ABA committee did not exactly break new ground with its Formal Opinion 47, issued Dec. . But, especially where at least one prominent federal appellate judge has shown an inclination to push the envelope with outside online research, the opinion offers some useful guidance, particularly by walking through some commonly occurring hypotheticals, the lawyers say. Its an interesting area because more and more, everyone in society is used to just getting on the internet. Its an ingrained habit, said Boston attorney Lisa C. Goodheart. But judges, when performing their adjudicatory function, cant succumb to that. Another reason for the prohibition is to preserve the integrity of appellate review, she said. [box type="shadow" align="alignright" width="300px" ]Opinions hypotheticals offer useful fodder Attorneys agree that perhaps the most helpful piece of ABA Formal Opinion 47 is the hypotheticals that walk through the proper handling of common situations. For example, the first hypothetical involves a judge overseeing an overtime case who becomes skeptical of defense counsels claim that the plaintiff could not have worked more than 40 hours a week because his clients restaurant is open only for breaks and lunch during the work week and not on weekends. The judge consults websites such as Yelp and Google Maps, which indicate that the restaurant is open from 7 a.m. to p.m., seven days a week. What the judge should have done is ask the parties and their counsel to provide admissible evidence as to the restaurants hours of operation, the opinion says. While agreeing with that assessment, Boston attorney Thomas F. Maffei said one of the other hypotheticals gave him some pause. It involves a social-media-savvy lawyer-turned-judge who wants to use his online skills to probe the parties and their out-of-state lawyers in a complex, multi-party case. While online research to gather information about a juror or party in a pending or impending case is clearly independent fact research prohibited by Model Rule 2.9(C), the ABA opinion calls the scouting of the lawyers a closer question. It likens such exploration as the equivalent of a judge cracking open a legal directory like Martindale Hubbell to determine, for instance, whether the lawyer is authorized to practice in the jurisdiction. But even an online source as seemingly benign as the Board of Bar Overseers website opens the door to additional information, Maffei noted. If a judge sees that an attorney has a disciplinary history, that may well affect the judges handling of the case before him, he suggested. Obviously, if an attorney has been disbarred or suspended and should not be before him at all, the judge needs to know that. But if the sanction is merely a reprimand for being overly aggressive, for example, it would likely influence the judge in an improper way, he said. Youre injecting into the case something that is not material at all or relevant to the issue, he said, adding that such information probably doesnt belong in a judges psyche. Maffei also paused on the last hypothetical, in which a judge searched the courts electronic files to determine whether a party is or had been the subject of other judicial proceedings. The ABA opinion states that a judge can judicially notice the factual existence of court records but not the truth of allegations or findings therein. Sealed documents also clearly should not be reviewed, the ABA adds. But Maffei said just knowing that a plaintiff is a serial filer of lawsuits could have a prejudicial effect on the judges thinking, even if he does not dive deeper into the merits of the cases.[/box] The Appeals Court wants to know what body of evidence the judge relied on, Goodheart said, noting that that becomes impossible if the information is hidden off the record and invisible. James S. Bolan of Newton said he wasnt sure he had ever seen an ABA opinion go so far as to provide a series of hypotheticals, calling it essentially a restatement of law. What the rule says In 2007, when it adopted Rule 2.9(C) of its Model Code, the ABA updated the prohibition on independent investigation for the internet age. The rule 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. A comment extends the prohibition to information available in all mediums, including electronic. Until its recent overhaul completed in 2015, the Massachusetts Code of Judicial Conduct did not have an analog to Model Rule 2.9(C) per se, but the principle and concept was still very much a part of Massachusetts law, custom and understanding, said Goodheart, who served on the Committee to Study the Code of Judicial Conduct. The rule now in place in Massachusetts is worded slightly differently from ABA Model Rule 2.9(C), but the deviations were intended merely to clarify the language, Goodheart said, with the substantive thrust still the same. The key distinction is between adjudicative facts, which the ABA committee describes as facts concerning the immediate parties who did what, where, when, how, and with what motive or intent, and legislative facts, which are general facts which help the tribunal decide questions of law and policy and discretion. Research of the latter does not raise the same due process concerns as research of adjudicative facts, the ABA adds. An exception is provided for adjudicative facts that may properly be judicially noticed. That, in turn, implicates rules of evidence, such as Section 201 of the Massachusetts Guide to Evidence. Facts suitable for judicial notice are both generally known and can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned, according to the Massachusetts guide. Importantly, in Massachusetts and elsewhere, the rules include due process protections, specifically an opportunity to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. That request can come after the fact, if the court takes judicial notice before notifying a party. The new ABA opinion boils those considerations down to a set of guidelines, adding that under Model Rule 2.9(D) the prohibition on improper independent investigations extends to those whom a judge supervises, such as clerks and other court staff. Temptation hard to resist While the rules seem straightforward enough, judges have been able to convince themselves that straying from them is warranted, particularly at the appellate level. Perhaps the best known example came two years ago at the 7th U.S. Circuit Court of Appeals, when Judge Richard Posner laid bare the extensive research he had done on medical and pharmaceutical websites to help decide an appeal in the case Rowe v. Gibson. The Rowe case involved a prisoners Eighth Amendment claim that prison officials had denied him sufficient access to the drug Zantac to treat his gastroesophageal reflux. One of the defendants in the case, a doctor, had provided an affidavit stating that the plaintiff prisoners twice-daily doses of the drug were sufficient. In large part because the plaintiff was representing himself and had no ability to afford a countervailing expert, that affidavit had gone unchallenged. Given the circumstances, Posner said he thought it perfectly appropriate to fill the gap with material from online sources he considered reputable. While Posners position prevailed, his colleague Judge Illana Diamond Rovner did not share Posners enthusiasm for internet research. She thought that the same result reversing the grant of summary judgment for the defendants could be reached on the record before the 7th Circuit. Meanwhile, dissenting Judge David Hamilton railed against Posners unprecedented departure from the proper role of an appellate court. Hamilton wrote that the internet is an extraordinary resource, but it cannot turn judges into competent substitutes for experts or scholars or such as historians, engineers, chemists, psychologists, or physicians. The majoritys instruction to the contrary will cause problems in our judicial system more serious than those it is trying to solve in this case. Posner at least deserves credit for coming clean, Bolan said. Far more often such research remains undisclosed, he suggested. [divider] More and more, everyone in society is used to just getting on the internet. Its an ingrained habit. But judges, when performing their adjudicatory function, cant succumb to that. Lisa C. Goodheart, Boston [divider] Left unsaid Boston attorney Seth J. Robbins said he would have liked to see the ABA committee delve further into legislative facts, given increasing evidence that federal appeals courts in particular have been relying on erroneous data to help make policy decisions. He cited as an example a court referencing a study in a voting rights case that had come from an institute claiming to specialize in that issue. That data should perhaps be subjected to the scrutiny provided by being part of the adversarial process, with notice and an opportunity to rebut given to the parties, he suggested. Bolan said he could envision a court someday ending up in a Demoulas situation. He was referencing the ill-fated attempts of two lawyers to prove their hunch about the judicial misconduct of former Superior Court Judge Maria I. Lopez. Their suspicions prompted them to extend a sham job offer to Lopezs clerk and threaten him with being reported to the BBO in an effort to peek behind the curtain at her decision-making, efforts that eventually got them disbarred. Similarly, a litigant and his counsel may develop suspicions about a judges online research and demand to know what had been done behind the scenes. Its not unthinkable, he said, that an enterprising lawyer could someday soon request the browsing histories of the judge and his clerks. Bolan noted that Section 201 of the Massachusetts Guide to Evidence allows a court to take judicial notice at any stage of the proceeding, whether requested or not, which presumably includes post-trial. If and when a judge does provide evidence that outside information gained through an internet search informed his decision, it will present a very interesting issue for an appellate court as to whether a litigant should get a second bite at the apple, Bolan said. But more often than not, such research will continue to fly under the radar, he reiterated. I think the real problem is, unless the judge discloses what he or she has done, youre never going to know, he said.

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Author:Olson, Kris
Publication:Massachusetts Lawyers Weekly
Date:Dec 21, 2017
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