American Bar Association: Judges Should Not Use the Internet For Research on Cases

ABA Warns Judges of Ethical Problems Over Benches’ Internet Research

A formal opinion issued Friday from the ABA's ethics committee outlines when judges should, or shouldn’t, use the internet for their own research.

By Cogan Schneier | December 08, 2017 | Originally published on National Law Journal

The internet is a powerful research tool, but in the hands of a judge, its use poses serious ethical conundrums that are best avoided, warns a new American Bar Association opinion.

The ABA’s Standing Committee on Ethics and Professional Responsibility, which develops and interprets ethics standards for lawyers and the judiciary, issued the opinion Friday. While internet information may be educational or useful, the ABA said, there are risks because internet information can be “biased, unreliable, or false.” When making decisions, judges should not rely on facts found via internet research that are not subject to the adversarial process, the guidance adds.

“Stated simply, a judge should not gather adjudicative facts from any source on the Internet unless the information is subject to proper judicial notice,” the guidance advises.

The guidance says judges should not conduct internet research to fill factual gaps in a case record, or to corroborate or discredit facts in the record. If extra information is needed, that information should be subject to judicial notice, or in other words, “not subject to reasonable dispute.” Judges should also ask parties to provide more information when appropriate, not go find it on their own.

Judges can, however, conduct research into general topics to help them understand a subject unrelated to a pending case, under the ABA’s rules. The guidance gives the example of a judge recently assigned to a jurisdiction with a high volume of environmental cases. That judge would not face ethical issues by reading articles and other materials about environmental law, according to the guidance.

The opinion lists additional hypothetical situations, and explains whether a judge’s behavior may be acceptable. That includes a judge using social media to learn about lawyers, jurors or parties in a case. While judges can use social media, the guidance says, judges should not gather information about jurors or parties.

But gathering information about a lawyer is a “closer question,” the ABA said. If a judge wants to become “familiar with counsel” who appear in his or her court, that’s acceptable. But judges cannot use independent research on lawyers in weighing or considering adjudicative facts.

The extent to which judges should engage in online research is a subject of ongoing debate, especially as social media sites that provide personal information about users have become more pervasive. In 2015, the U.S. Court of Appeals for the Seventh Circuit handled a case in which a prisoner who suffered from gastroesophageal reflux brought an Eighth Amendment challenge, claiming prison officials restricted his access to over-the-counter medicines.

Judge Richard Posner, now retired, conducted extensive research on medical websites, including WebMD and others. In the opinion, Posner defended his research, writing that the court was not “deeming the Internet evidence cited in this opinion conclusive or even certifying it as being probably correct, though it may well be correct since it is drawn from reputable medical websites.” He said the information was only used “to underscore the existence of a genuine dispute of material fact” that arose in district court proceedings.

The dissenting judge, David Hamilton, wrote that Posner’s research was an “unprecedented departure from the proper role of an appellate court.”

It appears the ABA agrees, as its guidance explicitly states that judges should not conduct outside research to gather facts that affect the outcome of a case.

The ABA goes even further, noting that judges should simply ask parties to provide information if possible, rather than finding it themselves.

“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 guidance says. “The same is true of the activities or characteristics of the litigants or other participants in the matter.”