The ABA Draws a Brightline for Judges Conducting Independent Factual Research

The American Bar Association’s latest formal opinion prohibits judges from conducting independent research on adjudicative facts unless the information is subject to judicial notice. However, judges are permitted to use the Internet to search for general contextual information and to research legislative facts.

Formal Opinion 478 defines an adjudicative fact as one containing information that has factual consequence in determining the outcome of a case—i.e., the who, what, when, where, why and how. A legislative fact, on the other hand, is broad and does not specifically concern the immediate parties at hand.

The opinion offers several hypothetical situations to differentiate between these two types of information. For example, a judge who is assigned to a district with a history of environmental contamination cases may conduct general background learning on the Internet before a case is assigned, and may rely upon that information so long as there is reason to believe that the source is reliable. Conversely, a judge impermissibly gathers information about adjudicative facts when researching the store hours of a specific restaurant while presiding over a case involving a claim of unpaid overtime. There, the restaurant’s hours of operation have factual consequences in determining whether the plaintiff will prevail on the claim.

The ABA derives its bright-line distinction from Model Rule 2.9(C) in the Model Rule of Judicial Conduct. Under Model Rule 2.9(C), a judge’s investigation of facts is restricted to the evidence presented and to any information that may be judicially noticed. Due process protections found in Fed. R. of Evid. 201(e) guarantees that a party is entitled to be heard either before or after a court takes judicial notice of an adjudicative fact.  However, parties do not enjoy the same protections with research of legislative facts because the broad and recurring nature of this information does not raise the same due process concerns as adjudicative facts.

Overall, Formal Opinion 478 aims to preserve judicial impartiality against improper ex parte communications by limiting the scope of independent fact finding not tested by the adversarial process. The ABA emphasizes Model Rule 2.9(D) and reminds judges of their duty to supervise court staff and officials by taking reasonable steps to prevent improper independent investigations. Meanwhile, the ABA also recognizes the utility of the Internet as an important educational tool for today’s judiciary by encouraging judges to draw upon information contained in reliable Internet sources in the same way that they would use information from judicial seminars and books.

To read the ABA’s full opinion, click here.

Colorado Goes Live with Lawyer Self-Assessment Program

On October 24, 2017, the Colorado Supreme Court launched an online platform aimed at helping Colorado lawyers to practice ethically, avoid disciplinary actions, and reduce stress when dealing with rules of professional conduct. The new Colorado Lawyer Self-Assessment Program is the first online self-assessment program launched by a state for its lawyers, but Illinois will soon follow with its own similar same initiative.

A subcommittee of the Colorado Supreme Court’s Advisory Committee initiated the self-assessment tool, and a group of Colorado lawyers, professionals, and professors assisted in its development. The self-assessment program addresses 10 important areas-including conflicts, confidentiality, and fees-in which lawyers encounter common ethical obstacles when practicing law. Every area contains a list of objectives, requirements, and the best practices to follow. Then, the program asks the lawyer performing the assessment if he or she is following those guidelines and, if the answer is negative, the program provides ethics opinions and articles that explain the risks involved. Lawyers who complete the entire program also receive CLE credit.

Colorado lawyers are responding positively to the self-assessment program and the Colorado Supreme Court’s Advisory Committee expects to improve it considerably based on the assessment reports submitted.

View the Colorado Lawyer Self-Assessment Program here.

Bloomberg Law Trains Machine to Highlight Legal Points

On September 26, 2017, Bloomberg Law unveiled an AI program called “Points of Law,” a service that allows users to quickly identify and analyze language in a judicial opinion. The program uses a machine learning algorithm that indexes its opinions, making it easier for users to find legal points and precedents that strengthen their own legal arguments. When the feature is turned on, language is highlighted in the text, and citations are linked from the margin. The program is one of a wave of automated legal research and analysis engines that are raising significant ethical questions regarding attorney competence and confidentiality.

As reported by the ABA, attorneys are increasingly turning to AI-generated work product to increase their legal research and drafting efficiency. In fact, attorneys participate in training these machine learning algorithms, as each query entered into the system helps to expand and refine the legal analysis the algorithm returns. But, when delegating work to AI programs, attorneys should be wary of their ethical obligations under the competence rules. Significantly, lawyers must understand how AI programs function in order to fulfill their duty of technological competence.

This means that a lawyer using Bloomberg’s Points of Law service must understand how the program’s indexing works and how it selects which language to highlight. For example, though AI programs continuously “learn,” they may not find every supporting precedent for a client’s case. As such, a lawyer entering a query into programs like Points of Law must ensure the accuracy of the research returned in order to satisfy their duty under the ethical rules. AI programs likely pose concerns regarding lawyers ethical duties of confidentiality. Therefore, lawyers must take the appropriate steps to prevent inadvertent disclosure of confidential information by completely understanding the terms of service of the AI programs they are using, and ensuring there is a confidentiality agreement with the AI vendor.

Find the article discussing the unveiling of Bloomberg’s Points of Law here.

Facebook “Friends” Aren’t Necessarily Real Friends

Florida’s Third District Court of Appeal has decided that a Facebook friendship doesn’t necessarily signify a close relationship warranting automatic disqualification of a judge. The decision allows Miami-Dade Judge Beatrice Butchko to remain on a case in which she is a Facebook “friend” with a lawyer representing a potential witness and potential party in the pending litigation.

In the decision, the court notes its disagreement with another Florida appeals court. In a 2012 decision, the Fifth District Court of Appeal held that a judge had to disqualify himself because he was Facebook friends with the prosecutor.

In its decision, the Third District Court of Appeal emphasized that “some of a member’s Facebook ‘friends’ are undoubtedly friends in the classic sense” and that a relationship between a judge and a lawyer may, under certain circumstances, warrant disqualification. But, the court noted, “[a]n assumption that all Facebook ‘friends’ rise to the level of a close relationship that warrants disqualification simply does not reflect the current nature of this type of electronic social networking.”

Read the full opinion here.

Nebraska Lawyers Get the Green Light to Accept Bitcoin

In a recent ethics advisory opinion, the Nebraska Supreme Court Advisory Committee declared that attorneys may accept digital currencies such as Bitcoin as payment for legal services, but must immediately convert the currency into U.S. dollars. The opinion is the first by a state ethics body to consider how the ethics rules apply to lawyers accepting this controversial form of currency.

The fluctuating exchange rate of digital currency implicates ethics rules related to the reasonableness of attorney’s fees. The value of Bitcoin, for example, fluctuates as much as ten percent per day. This volatility in value presents the potential for overpayment for legal services.

To combat this risk, the opinion outlines three steps attorney’s must take when accepting payment in digital currencies: (1) notify the client that the payment will be immediately converted to U.S. dollars, (2) make the conversion through a payment processor, and (3) credit the client’s account at the time of payment. The opinion further advises attorney’s to be “careful to see that [digital currency] is not contraband, does not reveal client secrets, and is not used in a money-laundering or tax avoidance scheme; because convertible virtual currencies can be associated with such mischief.”

Read the full opinion here.