Page 31 - Delaware Lawyer - Summer 2019

Randall J. Teti
is the second winner of the
Bruce M. Stargatt Legal Ethics Writing Competition award. He is an associate in the corporate litigation and
counseling group at Ashby & Geddes
and also practices in the firm’s medical malpractice group. He was a law clerk to Superior Court Judge Andrea Rocanelli.
He is a graduate of The Episcopal Academy, Villanova University and Widener University Delaware Law School (summa cum laude). His winning essay explores the question of whether judges should use the internet to research the matters before them.
The Bruce M. Stargatt Legal Ethics Writing Competition invites original, unpublished scholarly papers concerning ethical issues in the practice of law. The competition is open to students and recent graduates of any American Bar Association- accredited law school, persons taking the most recent Delaware Bar examination,
law clerks currently employed by a member of the Delaware judiciary, and Delaware attorneys admitted for no more than five years. The precise essay topic is in the author’s discretion.
This year’s panel of judges consisted of Justice Gary F. Traynor of the Delaware Supreme Court, Judge Craig A. Karsnitz of the Delaware Superior Court, and Matthew F. Boyer of Connolly Gallagher LLP.
The competition is funded by the Stargatt family through the Delaware State Bar Foundation in memory of the late Bruce M. Stargatt, founding member and partner
of Young Conaway Stargatt & Taylor, LLP. Bruce’s accomplishments include President of the Delaware State Bar Association, member of the American College of Trial Lawyers, and winner of the Herbert Healy Award of the American Judicature Society for his “outstanding contributions to substantially improve the administration of justice in the state of Delaware.”
The award reflects his high regard for legal ethics and clear writing throughout his long career as advocate, law firm leader and contributor to Delaware Lawyer magazine.
Independent investigation of reliable internet sources may assist the court in carrying out its duties in a competent, diligent and informed manner.18 Nevertheless, the unprecedented and immediate access to vast amounts of online information directly from the bench suggests that the DCJC should be updated to provide a discernible standard by which the judiciary may navigate the ethical parameters of independent internet research. The Model Code’s amended rule regarding ex parte communications, the considerations set forth by the Standing Committee, and the procedural and evidentiary standards of D.R.E. 201 collectively provide an appropriate and discernible measure. Taken together, these materials suggest a relatively straightforward parameter that is strikingly reminiscent of a well-established principle of Delaware law most recently reiterated by Vice Chancellor Montgomery- Reeves: “Generally, basing a decision on information or evidence outside the record, without complying with D.R.E. 201, ‘constitutes a due process violation.’” 19
NOTES
1. ABA Comm. On Ethics & Professional Responsibility, Formal Op. 478, 1 (2017).
2. Tribbitt v. Tribbitt, 963 A.2d 1128, 1131 (Del. 2008) (Holland, J.).
3. See, e.g., id. (finding reversible error where Family Court substituted unrefuted expert testimony with results of independent internet investigation); Delaware Rule of Evidence 201
4. Delaware Judges’ Code of Judicial Conduct, Preamble (2008) (hereinafter the “DCJC”).
5. See id. (stating that Canons should be applied “in the context of all relevant circumstances.”).
6. Id.
7. State v. Powell, 2016 WL 3023740, at *59 (Del. Super. May 24,
2016), aff’d, 173 A.2d 1044 (Del. 2017).
8. DCJC, Canon 2, R. 2.9(A) (emphasis added). A “Pending Matter”
is defined as a “matter that has commenced.” Id., Terminology. “A matter continues to be pending through any appellate process until final deposition.” Id. An “Impending Matter” is defined as a “matter that is imminent or expected to occur in the near future.” Id.
9. “DCJC is based on Delaware’s 1974 adoption of the ABA’s 1972 Model Code of Judicial Conduct, revised in 1993, following the promulgation of the ABA’s 1990 Model Code of Judicial Conduct. The current text is revised only slightly from the [text DCJC] adopted in 1993.” Id., Preamble.
10. MODEL CODE OF JUDICIAL CONDUCT, Canon 2, R. 2.9(C) (2011) (hereinafter the “Model Code”).
11. Id. at Canon 2, R 2.9(C) cmt. [6].
12. ABA Comm. On Ethics & Professional Responsibility, Formal Op.
478, 3 (2017). 13. Id. at 4.
14. See D.R.E. 201, cmt. (stating that Rule 201 “largely tracks F.R.E. 201 . . . except that the words ‘upon request’ were added at the beginning of D.R.E. 201(f) and the last sentence of F.R.E. 201(f) was deleted.”).
15. D.R.E. 201(e).
16. ABA Comm. On Ethics & Professional Responsibility, Formal Op. 478, 6 (2017).
17. Id.
18. See DCJC, Canon 2, R. 2.5(A)–(B).
19. City of Wilmington v. Fraternal Order of Police Lodge 1, 2016 WL 4059237, at *6 (Del. Ch. July 29, 2016) (quoting Trader v. Caulk, 1992 WL 148094, at *2 (Del. Super. June 10, 1992)).
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