Samuel C. Stretton. Samuel C. Stretton.

Internet research may be considered ex parte communication and shouldn’t be used to review information.

I am a judicial officer and heard argument and evidence from parties. Besides my law clerks and judicial staff, can I talk to other persons or go on the internet to review information that may be pertinent?

The question is an interesting one and there was a recent opinion by the American Bar Association on Dec. 8, 2017, known as Formal Opinion 478. It’s titled, “Independent Factual Research by Judges via the Internet.”

Before that opinion is discussed, the Pennsylvania Code of Judicial Conduct must be briefly reviewed. Obviously, under the Code of Judicial Conduct, ex parte communication is prohibited (see Code of Judicial Conduct, Rule 2.9). But, the Pennsylvania rule does allow ex parte communication for scheduling or administrative issues or emergency purposes.

Rule 2.9 does allow a Judge to consult with a disinterested expert on the law applicable to a proceeding before the Judge, but the Judge has to give advance notice to the parties of who he  is consulting and the subject matter of the advice that is to be requested. The Judge has to allow the parties reasonable opportunity to respond to the notice and to the advice received. Under the same rule, a Judge is allowed to consult with his court staff. A Judge is also allowed under Rule 2.9(a)(3) to consult with other Judges provided the Judge makes reasonable effort to avoid receiving factual information that is not part of the record. Further, when consulting with other Judges, the Judge still has the sole responsibility to decide the case and should not let the other judge he is consulting with make the decision. Comment 4 to the rule notes the judge should avoid comments and interactions that may be interpreted ex parte communications. The comment specifically discusses social media.

“A judge shall avoid comments and interactions that may be interpreted as ex parte communications concerning pending matters or matters that may appear before the court, including a judge who participates in electronic social media,” see Comment 4 to Rule 2.9 of the Code of Judicial Conduct.

Further, Comment 6 in the Pennsylvania Code of Judicial Conduct Rule 2.9 notes the following.

“The prohibition against a Judge investigating the facts in a matter extends to information available in all mediums, including electronic,” see Comment 6 to Rule 2.9 of the Code of Judicial Conduct.

Therefore, at least the Pennsylvania rules strongly suggest, or one could argue prohibit use of the internet because it would be considered ex parte contact.

Having said that, the American Bar Association issued their aforementioned Formal Opinion #478 on Dec. 8, 2017.  The opinion is interesting and should be read by all judicial officers, at least those who are considering using the internet more aggressively in deciding judicial cases. The opinion starts out by suggesting Judges have to be careful not to undermine the hallmark of judicial impartiality. The opinion notes in the American Bar Association’s Model Rule 2.9(a) that bars ex parte communication, except in limited circumstances. The opinion also notes that the model rules, under Model Rule 2.9(c), precludes a judge from investigating facts independently and requests should only consider the evidence presented and any facts that may properly be judicially noticed. Pennsylvania Rules of Judicial Conduct, Rule 2.9(c) is similar to the American Bar Association’s Rule that prohibits independent research of facts. The opinion talks about what is ­­­­­­­­­­­­considered judicial notice of facts and cites the Federal Rules of Evidence 201(b)(1)(2) as a basis for permitted factual judicial notice. The facts can’t be subject to dispute and the accuracy cannot be reasonably questioned. The ABA opinion notes that procedural protections are built-in to taking judicial notice and the opinion notes that Federal Rules of Evidence 201(e) provides the opportunity of the party to be heard before a court takes judicial notice of a fact. The opinion also discusses a judge’s duty to supervise staff to prevent court staff and officials from performing improper independent investigations.

The opinion then gives some guidelines for independent factual research. The opinion first asks is the information necessary? The opinion notes if the purpose of the judge is to discredit facts or fill in factual gaps of the record, the judge is then engaging in an adjudicative process, which is not part of the record, which is improper and ex parte. The opinion notes that if a judge is seeking general or informational or educational information to give the judge a better understanding of the case, the judge then can use the internet as an educational source just like judicial books and seminars. Finally, the opinion notes that if the judge is seeking background information about the party or about the subject matter of a specific pending case, the judge should be very careful since that may present adjudicative facts. The opinion notes the following key question: “The key inquiry here is where the information to be gathered is of factual consequence in determining the case. If it is, it must be subject to testing for the adversary process.”

In other words, the judge can’t look at it because it’s not part of the adversary process. The opinion then provides certain hypotheticals for a judge in considering what to do and what not to do. Of interest is one of the hypotheticals involves independent research about the lawyer or lawyers. The opinion suggests such independent research about a lawyer is not permitted if it is done to affect the judge’s weighing or considering adjudicative facts.

The opinion concludes with the statement that the Internet provides useful tools for discovering vast amounts of information. The opinion notes that proper judicial notice of facts is within the judge’s right and discretion to search. But, the opinion also notes that adjudicative facts that are needed to determine an issue, but which are not properly the subject to judicial notice, may not be researched without violating the Rule 2.9(c).

“Simply stated, a judge should not gather adjudicative facts from any source on the internet unless the information is subject to proper judicial notice.”

The opinion wisely puts limitations on internet research. It would be worthwhile for any judge who is considering doing any sort of internet research or review of a pending case to review that particular opinion. But, internet research may be considered ex parte communication and cannot be used and should be disclosed if done.

Allowing independent legal technicians to practice could have a devastating effect on the legal profession.

I saw an article in the American Bar Association Journal which appears to espouse the limited license legal technician as the way of the future law. I was surprised that a bar association should be making such statements. What are the ethics of this?

The Rules of Professional Conduct currently prohibit anyone other than a practicing lawyer who is licensed to represent people and provide legal advice and be paid for the same. In Pennsylvania Rules of Professional Conduct 5.4 and 5.5 are very clear on that particular issue.  But, rules can be changed and obviously there is some concern.

The issue of a nonlawyer being able to take over an area of law traditionally done only by lawyers is really a trade issue involving attorneys versus the ability to allow the public more access to someone who can aid them on legal issues and problems. In some states there are licenses called “limited license legal technicians” and there’s programs where they can be certified.

The first issue is whether the bar association should be supporting such programs. That is questionable at least without further review. The bar associations are trade organizations. They are to educate the bar and to maintain the competency of the bar, but also to protect the legal profession and the independence that it needs.

In theory, allowing nonlawyers to provide legal advice on certain areas seems perhaps like a wonderful idea, but it would be devastating to the legal profession. Lawyers who practice law regularly, particularly solo practitioners or small firms, know how difficult it is to get business. Many firms in the area of criminal law have seen a tremendous drop in business. The large numbers of legal graduates coming out of law school each year and working out of their houses, with little overhead has hurt the bottom line of many firms.  Other areas of getting business are drying up. District judges, at times, get upset when lawyers appear for ARD and other matters. But, the legal profession has to have a source of income. If easier tasks are going to be replaced by legal technicians who can charge a fraction of the fee, then the future of the legal profession for at least solo practitioners and small offices, is going to be in jeopardy.

There are some articles recently published in the ABA Journals that talk about how 80 percent of people cannot afford lawyers in civil cases. These are suggestions that practicing lawyers are not losing clients or would not lose to such limited legal technicians. But, that has not been the experience of many lawyers.

It’s sometimes very difficult for the judiciary and the Supreme Courts of various jurisdictions to understand what’s happening in the legal profession. Many of them see the large firms and the substantial salaries, including the salaries lawyers hired right out of law school receive. That, of course, is true. It does happen, but those firms only represent a small percentage of the practicing bar. For every large firm lawyer that’s receiving a six or seven figure annual salary, there are 50 to 100 practicing lawyers who are barely making their ends meet or making less than $30,000 to $40,000 a year, particularly after overhead.

To allow license licensed legal technicians to take a chunk of what lawyers used to do in addition to the large number of unemployed or underemployed lawyers who are working out of houses with no overhead other than their computer and printer, is a recipe for disaster. For instance, in Philadelphia where 40 to 50 percent of the citizens fall below the poverty line, there is approximately one lawyer for every four people. Presumably other cities have similar ratios. But, with that kind of ratio, it is very difficult to make a living practicing law.

The bar associations have ignored their duties to the legal profession and have gotten too involved in social issues without recognizing the impact it sometimes has on the bar. It’s understandable since most of the leaders of bar associations are made of big firm types and others who don’t know what it’s like to not have enough money at the week to pay one’s staff or secretary or rent because no one is paying reasonable legal fees.

Maybe programs like this are good and they are certainly good in theory, but the bar associations have a duty to advocate for the legal profession and what will happen to the legal profession. The bar associations miserably failed in that area when allowing—in the ‘70s, ‘80s, and ‘90s—law schools to expand greatly and new law schools coming online producing an unbelievable number of lawyers without any appreciation that the legal market was going to become saturated. That has happened. And for the last eight or nine years many lawyers are struggling financially in almost desperate situations. Many of the older lawyers are struggling also and have no pension or monies to live on if they are unable to practice. That’s why so many very old lawyers still practice and they are creating problems for themselves because physically or mentally they are not up to par anymore. But, they have no choice since the economics of the legal profession have not been good the last 20 or 30 years.

It’s great to have an independent legal profession, but it can’t remain independent except for a rich few unless the bar associations deal with the serious issues that undermine the ability of law firms to make an adequate living. Overpopulation of lawyers is an excellent example of a problem the bar association allowed to fester. Allowing independent legal technicians to practice and take away areas that lawyers would normally do could have a very devastating and negative affect on the legal profession.

This article is not to decide the merits of those approaches, but only to suggest that it’s time for the bar association to step up and become an advocate for the entire profession and the many thousands of solo practitioners and small firms who are economically facing serious issues. Only when the bar associations and the courts recognize and start to deal this problem, does the profession have the luxury of looking at other issues involving providing legal services to indigent and poor people.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.