Can a judge look up facts about a case or the parties on the internet, like checking Google, Yelp, or social media?

Plain-English summary

The opinion addresses the line between permissible and impermissible internet use by judges. It starts from the adversarial principle that a judge decides on evidence presented on the record, except for facts properly subject to judicial notice, and that information a judge finds online but does not disclose is "untested by the adversary process."

The governing provision is Model Rule 2.9(C): "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." Comment [6] extends the ban "to information available in all mediums, including electronic." The opinion stresses that Rule 2.9(C) bars independent research of facts, not law: judges may still conduct legal research beyond the authorities cited by counsel. It also explains that the ban was moved from a comment into the black-letter rule in 2007 precisely because considering only the evidence presented is "a defining feature of the judge's role in an adversarial system."

The opinion distinguishes adjudicative facts (facts about the parties and what they did, which must be tested through the adversary process or judicially noticed) from legislative facts and general background learning (which do not raise the same concerns). It offers a four-question framework: whether the information is needed to decide the case; whether the search aims to corroborate, discredit, or fill a gap in the record (improper for adjudicative facts); whether the judge seeks general education (permissible, like a seminar or book); and whether the judge seeks background on a party or the subject matter (improper if of factual consequence to the case).

Five hypotheticals illustrate the line: checking a restaurant's hours on Yelp to test a witness's claim violates Rule 2.9(C); reading general background on environmental law before a case is assigned is permitted; researching jurors and parties on social media is prohibited, while limited research to confirm a lawyer's bar admission may be permissible; a law clerk's online fact research is improper and implicates the judge's supervisory duty under Rule 2.9(D); and reviewing the court's own records can be proper subject to judicial-notice procedures, but reviewing sealed documents is not. The opinion also notes that independent research can give the judge "personal knowledge of facts that are in dispute," a ground for disqualification under Rule 2.11(A)(1).

In practice

Under the Model Code as it stood at the time of the opinion, a judge's internet use is governed by whether the information is an adjudicative fact about the case. The opinion holds that searching online for facts about the parties, witnesses, or events in a pending matter violates Rule 2.9(C) unless the fact is properly subject to judicial notice; that legal research and general subject-matter education remain permitted; that the prohibition reaches staff under Rule 2.9(D); and that independent fact research can create personal knowledge requiring disqualification under Rule 2.11. The opinion resolves doubt in favor of asking the parties to supply the information rather than researching it.

Common questions

Q: Can a judge Google a party or check their social media for background?

A: Not for facts of consequence to the case. The opinion treats online research about a juror or party in a pending or impending matter as prohibited independent fact research under Rule 2.9(C).

Q: Does the ban on independent research also cover legal research?

A: No. The opinion is explicit that Rule 2.9(C) proscribes independent research of facts, not law, and that judges may research legal authorities beyond those cited by counsel.

Q: Can a judge read general background articles about a topic that may come before the court?

A: Yes, with care. The opinion analogizes general background learning to attending a seminar or reading a book, so long as the source is reliable and the judge is not gathering adjudicative facts to decide a material issue.

Q: What if a law clerk does the online fact research instead of the judge?

A: The opinion says that does not cure the problem. A clerk's improper fact research can violate Rule 2.9(A) (considering ex parte information) and the judge's supervisory duty under Rule 2.9(D).

Background and rules framework

The opinion interprets the ABA Model Code of Judicial Conduct (2011), centered on Rule 2.9 (ex parte communications; the 2.9(C) ban on independent fact investigation; the 2.9(D) supervisory duty) and Rule 2.11(A)(1) (disqualification for personal knowledge of disputed facts). Because Rule 2.9(C) permits consideration of facts "that may properly be judicially noticed," the opinion incorporates the law of judicial notice (illustrated with Federal Rule of Evidence 201) and notes that each jurisdiction's own judicial-notice standards control.

Citations and references

Rules of Professional Conduct:

• ABA Model Code of Judicial Conduct Rule 2.9 (ex parte; independent investigation; supervision of staff)
• Model Code Rule 2.11(A)(1) (disqualification for personal knowledge of disputed facts)

Statutes:

• Fed. R. Evid. 201 (judicial notice of adjudicative facts), referenced as an illustrative standard

Other opinions cited:

• ABA Formal Op. 462 (2013): judge's use of electronic social networking media
• Minn. Bd. on Jud. Standards Advisory Op. 2016-2 (2016); Ill. Jud. Ethics Comm. Op. 2016-02 (2016)

See also

• ABA Formal Op. 462: Judge's Use of Electronic Social Networking Media
• ABA Formal Op. 488: Judges' Social or Close Personal Relationships
• NY State Bar Op. 541: Judge's Appearance of Integrity and Impartiality

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: aba-formal-opinion-478.pdf