In an age when smartphones are ubiquitous, and the ability to seek the answer to any question at any time has almost made “Google” a generic term, the paper-based information resources of years past have given way to voice search and virtual home assistants. Thus, despite the legal profession often lagging behind other industries on the tech front, its institutions are slowly being transformed by this ready access to limitless information, including within the judiciary.
It is perhaps for this reason that late last year, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility (the “Committee”) issued an advisory opinion on the subject of internet research by judges, or more specifically, when such research is permissible and when it is not. The opinion represents a renewed assertion by the ABA that judicial use of independent internet research presents challenges that are distinct from those associated with other extrinsic sources of information, which have long found their way into judicial reasoning.
The ABA’s recent opinion provides a clear explanation of the legal framework informing its conclusions, though its guidelines revolve around the somewhat nebulous law of judicial notice. Possibly recognizing the practical difficulties of complying with rules that are anchored to such an arguably messy body of law, the Committee provides a series of hypotheticals and questions that members of the judiciary may refer to in determining the propriety of running a case-related Google search at any given time. It also offers a more cohesive overview of the legal doctrines implicated by judicial use of internet research than much of the relevant legal authority has done to date, acknowledging the intersection of ethical, evidentiary, and constitutional questions at issue in this context. This sort of guidance is especially critical as the role of judicial internet research in legal proceedings continues to expand, bringing with it important consequences for core legal system values including due process, transparency, and an impartial judiciary.