Samuel C. Stretton ()
Judges now have a new code of conduct to follow.
Could you highlight the changes in the new Code of Judicial Conduct adopted by the Pennsylvania Supreme Court?
The new Code of Judicial Conduct that has been adopted does not go into effect until July 1. Some provisions involving appointments, discriminatory organizations, participation in fraternal or civic organizations, fiduciary obligations, and financial activities do not go into effect until July 1, 2015. Therefore, there is a transition time, as there has to be because there are substantial differences between the old and new codes.
This article will give a brief overview of some of the changes. It should be noted that this code does not cover magisterial district judges and traffic court judges. The code does cover all appellate, common pleas and municipal court Judges.
Under Rule 1.3, a judge cannot use the judicial office or letterhead to do personal business. But the judge can provide a letter of recommendation on judicial letterhead if the judge in the letter indicates the reference is personal. Under Rule 1.3(4), if the judge writes or publishes a book of articles, the judge cannot let the judicial office be exploited in the publication. A judge has to retain control over the advertising and promotion. The days of a judge sitting in a robe highlighting the book are gone.
Under Rule 2.3, there is a prohibition against bias, prejudice and harassment. This rule, under Subsection (b), has a specific prohibition against any bias or prejudice based upon race, gender, religion or sexual orientation. Similarly, the judge has to ensure that lawyers exhibit no such bias. Comment 4 specifically prohibits any form of sexual harassment, which includes not only sexual advances but physical conduct of a sexual nature. While judges should be very careful about how they interact with their staff, the days of off-color comments are long gone based on the new code and also the Supreme Court decisions removing judicial officers.
Under Rule 2.5, a judge is required to do administrative and judicial duties competently and cooperate with other judges and court officials. In other words, judges are not just the king of the hill. They must cooperate with their colleagues. Under Comment 4, a judge has an obligation to monitor and supervise cases to reduce or eliminate dilatory practices and delays and costs. A judge can no longer just sit back and let the docket take care of itself. That duty is placed squarely on the judge and it is the judge’s responsibility to monitor cases and avoid delay.
Rule 2.6 is very interesting because, under Comment 2, it speaks about the role of the judge in settling disputes. Comment 2 sets forth specific factors for the judge to consider if the judge is participating in settlement negotiations. Comment 3 suggests that a judge who becomes deeply involved in settlement negotiations may consider recusal.
Under the responsibility to decide section under Rule 2.7, in Comment 3, the judge now has a duty to disclose information to the parties that the judge believes deal with disqualification. The duty to reveal is there even if the judge believes there is no proper basis for disqualification. Therefore, political contributions made by a party or a lawyer or prior representation or prior business relationships, even if long ago, have to be revealed by the judicial officer.
Under Rule 2.8, again there is a requirement for a judge to maintain order and decorum and be dignified and courteous. Of interest is Subsection (c), where a judge cannot commend or criticize the verdict of a jury to the jury. This is an important matter, because in the past judges sometimes would give their opinions in the back room to jurors after the verdict or would indirectly criticize jurors by noting someone’s prior record if the judge was dissatisfied. A judge does not have a stake in the jury outcome and should not allow his or her emotions to be directed at the jury either in open court when the jury is discharged or when the judge goes back to talk to the jury.
Rule 2.9 prohibits ex parte communications. Under the rule, a judge has to notify all parties and give parties an opportunity to respond.
But of interest is the fact that under Rule 2.9, a judge can get written advice of disinterested experts on law applicable to a proceeding. But the judge has to give advance notice to the parties if the judge is consulting with someone else. The parties have to be given an opportunity to object and respond.
Also, Rule 2.9 specifically allows a judge to consult with his or her court staff concerning the judge’s adjudicative responsibilities.
There is a strong requirement now, under Rule 2.9(b), if a judge receives ex parte communication that is not authorized, that all parties be notified immediately and given an opportunity to respond. Under Subsection (c), a judge can’t go out and investigate facts independently. Although that would seem obvious, it was never stated before.
But under Subsection (e) there is some lessening of the prohibitions of ex parte communications when the judge is serving on what the code calls a therapeutic problem solving court, such as mental health court or drug court.
Under Rule 2.10, judges are prohibited from speaking out and making statements on pending cases. Also, a judge is prohibited under Rule 2.10(b) to make any pledges or promises as to how cases will be handled that are inconsistent with the impartial duties of a judge.
Under Rule 2.11, for disqualification, there is now a specific requirement under Comment 4 to disqualify if a judge knows that a lawyer or a party has made direct or indirect contributions to the judicial campaign that would raise reasonable concerns about fairness or impartiality. But there is a rebuttal presumption under Subsection (4) for recusal if the contribution is made for reimbursement for transportation, lodging or hospitality. But that is limited by the new prohibition on gifts. A judge has an obligation to know the interest of the judge’s spouse, domestic partner and children that may interfere with and require disqualification.
Under Rule 2.11, there is now a mandatory duty for a judicial officer to disqualify if the judge’s impartiality might reasonably be questioned. This is a major change from the old code. The code then lists six instances where disqualification is warranted and mandatory.
Under Rule 2.12, a judge has to fully supervise his or her staff and ensure the staff complies with the Judicial Code. Under Section (b) there is a strong admonition for prompt disposition.
Under Rule 2.13, judges must now avoid nepotism, favoritism and unnecessary appointments. The days of appointing one’s relatives or relatives of other judges are over. Further, a judge can’t appoint a lawyer to a position if that person contributed within the prior two years to the judge’s election. There are some exceptions to that, including if the person is not being compensated for the position.
Under Rule 2.14, the judge now has a duty to report or take steps to help lawyers or other judges who are impaired.
Under Rule 2.15, there is a reporting requirement if a lawyer or another judge engages in conduct that raises issues of honesty, trustworthiness or fitness. But there are also general reporting requirements if there are violations of the Rules of Professional Conduct. Rule 2.16 requires cooperation with disciplinary authorities and specifically prohibits retaliation against any judge or lawyer who has cooperated with disciplinary authorities.
Rule 3.1 deals with extracurricular activities of the judicial officer. A judge, under Rule 3.1, has to be careful not to participate in activities that could lead to disqualification. Under Subsection (d), a judge can’t engage in conduct that would appear to be coercive. Particularly, a judge can’t use court staff or stationery, except for law-related matters. The days of sending court staff to get a judicial robe cleaned, pick up a judge’s children or type a child’s term paper are over.
The judge is also restricted under Rule 3.2 from making presentations to public bodies unless in connection with law-related matters or administration of justice issues. Rule 3.3 concerning testimony of character witnesses is left open, although in the current code this is prohibited. But Pennsylvania Rule of Judicial Administration 1701(e) does prohibit a judge from providing character testimony.
Rule 3.4 very strongly prohibits a judge from accepting appointments to government committees and boards unless it concerns law or the legal system. A senior judge, under Rule 3.4(c), can accept such appointments, but then can’t serve as a senior judge during the period of the appointment.
Rule 3.5 prohibits judges from using information acquired in their judicial duties for personal benefit.
Rule 3.6 is a new rule and very clearly prohibits a judge from being involved with discriminatory organizations. There is some limitation under Comment 4 on First Amendment issues. But it appears the days of joining an all-male or all-female club are over.
Rule 3.7 still allows a judge to write and teach on nonlegal subjects if this does not detract from the performance of the judicial office. A judge can engage in charitable activities, but there are prohibitions if the organization were to appear before the court. The judge is not allowed to solicit funds for any charitable activity, nor can the judge be a guest of honor or a speaker at a fundraising event for a charitable activity. The judge also can’t give investment advice. The days of judges being presidents of the board of trustees of their churches or nonprofit organizations may be over as a result.
Rule 3.8 prohibits judges from serving as executors or in other fiduciary positions except for family members. If the judge is so serving when elected, the judge has one year to remove himself or herself. Under Rule 3.9, judges are forbidden to be arbitrators or mediators unless somehow it is part of their official duties. Rule 3.10 is very clear that judges cannot engage in the practice of law. Judges still have the right to represent themselves. A judge can provide some legal advice to his or her family members but cannot charge.
Rule 3.11 deals with a judge’s financial activities. Judges are prohibited from serving as officers, directors, partners, advisers or any employee of any business except a closely held family business.
Under Rule 3.12, a judge can accept reasonable compensation for extrajudicial activities permitted by the code unless there would be the appearance of impropriety. Therefore, a judge can accept an honorarium for speaking or fees for teaching. But there are reporting requirements.
Rule 3.13 is a major change that prohibits gifts, loans or other things of value. The judge can’t accept any gifts or loans if it would appear to undermine the judge’s independence. But, under Subsection (b), a judge can still accept small gifts, such as plaques or trophies. These small gifts don’t have to be reported. But receiving gifts or loans from lawyers appearing before the judge requires disqualification under Rule 3.3(b)(2). A judge can accept ordinary social hospitality. That is, a judge can still go to the homes of friends and have dinner without paying for it. A judge can still keep lottery proceeds. The judge can still get books or magazines that are provided on a complimentary basis.
Also, under Subsection (c) of Rule 3.13, a judge can accept but must report gifts that allow a judge to attend bar-related functions or educational, charitable civic functions if the invitation is offered to nonjudges who are also involved. In other words, if the judicial officer is the only person being paid as a speaker and the other lawyers are not being paid, then the judge can’t do it. The judge has a duty under Subsection (d) to report gifts and loans to the judge or other family members if the source is a party or other person, including a lawyer who has come before the judge.
Under Rule 3.14, a judge can get reimbursed for certain expenses for travel and more if they are associated with the judge’s participation and extrajudicial activities permitted by the code. In other words, when invited to a seminar, the judge can be reimbursed. If the judge is invited to go golfing with lawyers or go to the Pennsylvania Society meetings in New York, the judge can’t get reimbursed.
Under Rule 3.15, there are stringent reporting requirements. Any compensation received under Rule 3.12 has to be reported. Gifts and other things need to be reported unless the value and the aggregate for the year do not exceed $250 from the same source. Reimbursement of expenses that are allowed under Rule 3.14 doesn’t have to be reported unless it exceeds $650 from the same source.
Under Rule 3.15(b), there are specific reporting requirements as to the date, place and nature of the activity and description of the gift. These are to be filed with the Pennsylvania Supreme Court as a statement of financial interest.
Canon 4 replaces the old Canon 7 involving political activity when one is a candidate. Rule 4.1 has some similarities to Canon 7, but specifically prohibits using court staff or court resources for a judicial campaign. In other words, the days of taking calls using the judicial telephone or using the judicial fax machine for sending out campaign material are over. Also, under Rule 4.1(8), a judge cannot knowingly or recklessly disregard the truth by making false or misleading campaign statements. Nor is a judge allowed to make statements that would be expected to affect the outcome or fairness of a matter pending in any court. The old prohibition against pledges or promises under Subsection 11 is maintained. Under Comment 5 to Rule 4.1, members of a judge’s family can be politically active, but the judge has to ensure that the judge does not become personally associated with the family members’ political activities.
Under Rule 4.2, a judge is allowed to set up a campaign committee not earlier than immediately after the general election in the year prior to the calendar year in which the person becomes a candidate. This moves the time period back. It used to be 30 days before the filing deadline for candidates. A judge, beginning after the general election in the year before, can then speak out on his or her candidacy and on the race itself and purchase dinner tickets, accept endorsements and more. A judge under Subsection (8) can use court facilities for photos and videos, but the facilities have to be available also on an equal basis to other judicial candidates.
Under Subsection (c) to Rule 4.2, a judge cannot personally solicit or accept campaign contributions. Contributions must go through the campaign committee. Rule 4.3 allows candidates for appointment to a judicial office to communicate with the appointing authority and seek endorsements for the appointment.
Rule 4.4 involves campaign committees. There can be no solicitation or contributions earlier than immediately after the general election in the year prior to the judicial election. That is a major change because it gives a candidate about three or four more months of fundraising, since before one had to wait the 30 days before filing nominating petitions. Judicial campaign activities and fundraising activities have to end the last calendar day of the election year. Rule 4.4(b)(3) requires reporting the contributions by the committee.
Rule 4.5 discusses activities of a judge who becomes a candidate for a nonjudicial office. That requires a judge to resign from his or her judicial office. But if a judge becomes a candidate for a nonjudicial appointed office, he or she is not required to resign, with certain exceptions. But a judge may continue to hold a judicial office while serving or being a candidate to serve as a delegate to a state constitutional convention.
Many of the new rules are mirrored in the American Bar Association’s Model Rules of Judicial Conduct. The new rules make some substantial changes. These changes will go a long way to ensuring the integrity and independence of the judicial office.
All judges should start to read these new rules. The days of a judicial officer stating he or she hasn’t read the Code of Judicial Conduct or only skimmed through it are over. It should also be noted these rules set forth the minimal standards required of a judge. Hopefully, every judicial officer will strive to be better.
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.