ABA issues opinion on web research, adjudicative facts

By Kris Olson
BridgeTower Media Newswires
 
BOSTON — For most, it’s become instinctual: Have a question? Google it. Ask Siri.

But now the American Bar Association’s 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 478, issued Dec. 8. 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.

“It’s an interesting area because more and more, everyone in society is used to just getting on the internet. It’s an ingrained habit,” said Boston attorney Lisa C. Goodheart. “But judges, when performing their adjudicatory function, can’t succumb to that.”

Another reason for the prohibition is to preserve the integrity of appellate review, she said.

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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.

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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 prisoner’s 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 prisoner’s 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 Posner’s position prevailed, his colleague Judge Illana Diamond Rovner did not share Posner’s 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 Posner’s “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 majority’s 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.

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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 Lopez’s 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 judge’s online research and demand to know what had been done behind the scenes. It’s 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, you’re never going to know,” he said.