ABA Opinion warns against judges doing online research on facts related to cases

Source: OTHERWISE: ABA Opinion warns against judges doing online research on facts related to cases

by Raymond J. McKoski// ABA Journal

IFormal 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.


Former Lawyer of Martin Shkreli Convicted of Fraud

In case you missed the news over the winter holidays, in late December 2017, Evan Greebel, who was outside counsel to Martin Shkreli’s former pharmaceutical company, Retrophin, was found guilty by a jury in Brooklyn of charges that he conspired to commit wire fraud and securities fraud.  In August 2017, a different jury found Shkreli guilty of defrauding hedge fund investors but cleared Shkreli of conspiring with Greebel to steal from Retrophin.  This conviction offers a stark reminder that lawyers cannot use their legal expertise to facilitate the commission of a crime or fraud.


The news story can be found here.

Trump’s Lawyer May Face Ethics Complaint Over Payment to Porn Star

Trump’s lawyer claims that he personally sent $130,000 to porn star, Stephanie Clifford, who states that she had an affair with President Trump prior to his election.  The lawyer, Michael Cohen, claims the payment was legal, but was it ethical?

A recent New York Times article discusses some of the potential ethics violations.  For example, Rule 1.8(e) of the New York Rules of Professional Conduct states:  “While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client . . . .”  So, if Ms. Clifford contemplating some type of litigation against Mr. Trump, then his payment for Mr. Trump’s benefit would trigger a violation of this ethics rule.

But what if Ms. Clifford was not threatening litigation but simply that she was going to make the affair public?  If the payment was to buy Ms. Clifford’s silence prior to the election, it could trigger a violation of Rule 1.8(a) if it was a loan and if Mr. Cohen did not have a written loan agreement with Mr. Trump.  If Mr. Cohen has a written loan agreement and followed other aspects of Rule 1.8(a), which include that the loan terms are fair and reasonable and that Mr. Trump was advised in writing about seeking out independent legal counsel on the matter, then Mr. Cohen would be in the clear on this front.

Assuming Mr. Cohen did not violate any provision of Rule 1.8, he could still be in hot water if he lied about the payment.  Mr. Cohen has said that “I used my own personal funds to facilitate a payment of $130,000 to Ms. Stephanie Clifford.  Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly.”  Another New York Ethics Rule, Rule 8.4, prohibits a lawyer from “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation.” If any part of this explanation is a lie, for example someone else has repaid him on behalf of Mr. Trump, then that would be Mr. Cohen engaging in dishonesty, deceit or misrepresentation.

Finally, let’s say Mr. Cohen hasn’t lied, simply used his own money, has not been reimbursed, litigation was not be threatened, it wasn’t a loan, and it was simply a gift.  Mr. Cohen would seem to be in the clear ethically, but there may still be one nagging legal issue – did he file a Form 709 with the IRS?  The IRS requires that anyone making gifts totaling more than $14,000 to anyone other than your spouse usually must filed a Form 709.  The other types of gifts not subject to reporting to the IRS are donations to political organizations, transfers to some tax exempt organizations, and payments that qualify under educational or medical exclusions.

It will be interesting to see if and how we learn if Mr. Cohen is completely in the clear.