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Judges who use the Web to determine facts or visit party sites to evaluate evidence run the risk of encountering questionable sources and ethical quandaries. Judicial standards and ethics opinions are starting to address these complex issues, and potential sources of ethical guidance are making their resources accessible online. Before the Internet era, ethical boundaries were crossed when a judge “routinely sought out and interviewed witnesses outside of court and made judgments based on their unsworn ex parte communications.” [FOOTNOTE 1] But is multipurpose Web surfing any different? However it is characterized, the Internet has the potential to become a gray eminence in judicial decision-making. In a 6th U.S. Circuit Court of Appeals case, a lawsuit was brought claiming that the City of Columbus Ohio’s Check Resolution Mediation Program violated federal and state debt collection laws. [FOOTNOTE 2] The trial judge relied on a description of the program from its Web site to find that the city was not a debt collector, and dismissed the suit. On appeal, the court would not equate the Web site’s content with a public record, since it contained facts whose accuracy could have been reasonably questioned. The 6th Circuit went on to describe the perils of blind reliance on government sites. “[I]f all online statements by a government agency could be relied upon as true by a court considering a motion to dismiss, government agencies could defuse any complaint alleging improper governmental motives merely by stating an arguably proper motive on their website. Such a result could eviscerate all sorts of fraud, civil rights, and other laws requiring investigations into governmental motives.” [FOOTNOTE 3] On the other hand, a Michigan trial court was more circumspect in its treatment of evidence from a well-known computer vendor’s site. [FOOTNOTE 4] The defendant in an unauthorized access prosecution asked the court to take judicial notice of documentation on the Microsoft Web site supporting the argument that a missing event log could have been deleted as the result of a defect. The trial court refused to accept the information as accurate without expert testimony. On appeal, the court agreed, holding that the event log problem was not “capable of accurate and ready determination” and the Microsoft site was not a “source whose accuracy cannot be reasonably questioned.” Internet research as evidence presented by the parties or offered for purposes of judicial notice faces scrutiny to establish its authenticity and reliability. [FOOTNOTE 5] When discovered independently by the court, it raises additional questions. An illuminating article by attorneys David Tennant and Laurie Seal in The Professional Lawyer suggests that when judges use the Internet to decide factual questions they may run afoul of the ABA Model Rules of Judicial Conduct. [FOOTNOTE 6] The authors specifically referred to the commentary to Cannon 3B(7), which states: “A judge must not independently investigate facts in a case and must consider only the evidence presented.” [FOOTNOTE 7] This injunction has been elevated to a rule in the discussion draft prepared by the ABA Joint Commission to Evaluate the Model Code. [FOOTNOTE 8] And comment [8] of the proposed rule extends the prohibition against independent factual investigation “to all mediums, including electronic ones.” JUDICIAL CONDUCT ON THE WEB Tennant and Seal also observed that as far back as 1998, the New York State Bar Association Committee on Professional Ethics sounded a cautionary note on Web-based research: “To the extent that the attorney in performing legal research for clients relies on information obtained from searching of Internet sites, the attorney’s duty under Canon 6 to represent the client competently requires that the attorney take care to assure that the information obtained is reliable.” [FOOTNOTE 9] This tocsin is equally important for judges under their ethical rules of conduct. As mentioned earlier, the New York State Bar Association publishes an annotated version of the New York Code of Judicial Conduct. [FOOTNOTE 10] And the Office of Court Administration, on its Web site, has made available opinions interpreting the code, which are issued by the Advisory Committee on Judicial Ethics, [FOOTNOTE 11] ranging from 1996 to the present. [FOOTNOTE 12] The advisory committee, composed of current or former judges, issues opinions in response to requests from sitting jurists on such topics as ethical conduct, judicial duties and conflicts of interest. It has issued opinions proscribing judges from: (1) writing articles that would comment on the facts of a pending Internet case [FOOTNOTE 13]; (2) posting a link to a Megan’s Law advocacy group on the court’s Web site [FOOTNOTE 14]; and (3) allowing their name or photograph to be posted on a law firm page in connection with an advertisement for a career-day panel discussion. [FOOTNOTE 15] The New York State Commission on Judicial Conduct, [FOOTNOTE 16] which posts its decisions online as well, is the official state agency responsible for investigating complaints of misconduct against judges and deciding whether to admonish, censure or remove them from office. Its Decisions Archive begins with opinions from the 1980s. At this point, no decisions on the limits of Internet use have been issued. It is worth noting that information regarding the ethical standards of administrative judges and hearing officers has also been made available electronically. [FOOTNOTE 17] Nationally, there is the Center for Judicial Ethics, [FOOTNOTE 18] which collects and makes available resources regarding judicial conduct nationwide. It responds to requests for information; maintains directories of investigative agencies and judicial conduct advisory committees; and publishes books and monographs, including the Judicial Conduct Reporter. This site is part of the American Judicature Society, a national nonpartisan membership organization concerned with the administration of justice. Lastly, the Legal Information Institute at Cornell University School of Law publishes the Judicial Ethics Library. [FOOTNOTE 19] This is a national collection of federal statutes, state commissions, codes of judicial conduct, judicial decisions, and other materials organized by jurisdiction and topic. And the American Bar Association provides an annotated copy of the Model Code of Judicial Conduct on their Web site. [FOOTNOTE 20] CONCLUSION The Internet is becoming a fixed presence in court libraries and judges’ chambers across the country. This powerful tool will impact decision-making and the conduct of litigation through the next shift in information technology. As it evolves, judges and lawyers should be cautious about the practical and ethical limits on its use. Ken Strutin is director of legal information services at the New York State Defenders Association. ::::FOOTNOTES:::: FN1 Matter of VonderHeide, 72 N.Y.2d 658, 536 N.Y.S.2d 24 (1988). FN2 Passa v. City of Columbus, 123 Fed.Appx. 694, 2005 U.S. App. LEXIS 2832, at 1 (6th Cir. Feb. 16, 2005). FN3 Id. at 10. FN4 People v. Schilke, 2005 WL 1027039 (Mich. Ct. App. May 3, 2005). FN5 See generally Ken Strutin, Voodoo Information? Authenticity Is Key When Considering Web Content as Evidence, New York Law Journal, Oct. 12, 2004, at 5, col. 1. FN6 See David H. Tennant and Laurie M. Seal, “Judicial Ethics and the Internet: May Judges Search the Internet in Evaluating and Deciding a Case?,” 16 The Professional Lawyer No. 2, at 10 (2005), www.abanet.org/judicialethics/resources/TPL_jethics_internet.pdf. FN7 ABA Model Code of Judicial Conduct, www.abanet.org/cpr/mcjc/canon_3.html. See Commentary [3.9][3B(6)(e)] in Code of Judicial Conduct (NYSBA April 13, 1996). FN8 Preliminary Draft ABA Model Code of Judicial Conduct, Rule 2.10(B) (June 30, 2005), www.abanet.org/judicialethics/Canon2.pdf. FN9 NYSBA Committee on Professional Ethics, Op. 709, at 3 (Sept. 16, 1998). FN10 www.nysba.org/Content/NavigationMenu/Attorney_Resources/Code_of_Judicial_Conduct/CJC.pdf. See 22 N.Y.C.R.R. Part 100. FN11 www.courts.state.ny.us/search/ethics_opinions.asp. FN12 Westlaw has a database of these opinions dating back to 1987. FN13 Advisory Committee on Judicial Ethics Op. 00-115 (Jan. 25, 2001). FN14 Advisory Committee on Judicial Ethics Op. 01-14 (March 8, 2001). FN15 Advisory Committee on Judicial Ethics Op. 04-30 (March 11, 2004). FN16 www.scjc.state.ny.us. FN17 See Manual for Administrative Law Judges and Hearing Officers (N.Y.S. Dept. of Civil Service), www.cs.state.ny.us/pio/hearingofficermanual/hearingofficer.htm. FN18 www.ajs.org. FN19 www.law.cornell.edu/topics/judicial_ethics.html. FN20 www.abanet.org/cpr/mcjc/mcjc_home.html

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