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New Guidelines on When Judges Should Use Internet Research

By William Vogeler, Esq. on December 11, 2017 | Last updated on March 21, 2019

Sometime after Al Gore invented the internet, judges started including internet sources in their decisions.

That was then. Now the American Bar Association has invented guidelines for how judges should use the internet for legal research.

And if you believe that Gore invented the internet or that the ABA can tell judges how to do their jobs, you may want to check out bridges for sale on Amazon. In the meantime, there are these new rules:

More Like Guidelines

The ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 478 to provide "the nation's judicial branch guidance related to the ethical boundaries of independent factual research on the internet." The committee periodically issues ethics opinions to advise lawyers, the courts and the public.

Other than state the obvious need for scrutinizing information obtained on the internet, the opinion tells judges that facts should not be included in judicial determinations unless they qualify for judicial notice. The opinion cites ABA Code of Judicial Conduct Rule 2.9(C), which 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." The ABA says the code book is not to be considered as rending legal advice for specific cases.

However, the new opinion offers hypothetical applications of the judicial rules on internet research. For example, it says judges may use the internet to educate themselves but not use that information to make "an adjudicative decision of material fact."

Social-Media Savvy

One hypothetical describes a social-media savvy lawyer who has been appointed to the bench. The opinion says that judges are prohibited from gathering facts from social media sites about a juror or party.

"Gathering information about a lawyer is a closer question," it says, comparing it to checking a legal directory.

It hews close to the news, too, given the high-profile case of Justice Don Willett. He is a Twitter laureate who has been nominated to the U.S. Fifth Circuit Court of Appeals.

Willett famously poked fun at Donald Trump on Twitter before Trump became President. Now, not so much.

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