Samuel C. Stretton ()
Judges must report misconduct to uphold
the legal profession’s integrity.
What are the responsibilities of a judicial officer to report another judge or lawyer for professional misconduct?
The rules have changed somewhat in the new Code of Judicial Conduct. The new code has been in effect since July 1 for appellate, common pleas and Philadelphia Municipal Court judges.
The appropriate new rule is Rule 2.15, which, under Subsection (a), addresses knowledge that a judge has committed a violation of the Code of Judicial Conduct. Under the rule, a judge is required to inform the appropriate authority, which is the Judicial Conduct Board, if the misconduct raises a substantial question regarding the judge’s honesty, trustworthiness or fitness.
Similarly, under Subsection (b) of Rule 2.15, if a judge has knowledge that a lawyer has committed a violation of the Pennsylvania Rules of Professional Conduct, the judge has a mandatory obligation to report the lawyer to the Office of Disciplinary Counsel if the conduct raises a substantial question regarding the lawyer’s honesty, trustworthiness or fitness.
To some extent, this is a change from the prior code, under which a judge had the obligation to report a lawyer for any violation of the Rules of Professional Conduct. Such a broad reporting requirement sometimes resulted in no reporting. The old disciplinary rules used to have a similar requirement for lawyers reporting other lawyers. That was changed and the new Rules of Professional Conduct require reporting only for conduct that raises questions concerning the honesty, trustworthiness or fitness of a lawyer.
But a judge must now report either judicial or lawyer misconduct if honesty, trustworthiness or fitness are implicated.
It should also be noted that under Rule 2.15(c) and (d), a judge who receives information indicating a substantial likelihood that another judge or lawyer has violated either the Code of Judicial Conduct or the Pennsylvania Rules of Professional Conduct “shall take appropriate action.”
As Comment 2 to Rule 2.15 notes, the judge does not have to have actual knowledge, but if he or she receives information indicating a substantial likelihood of misconduct, some action has to be taken. That action can be communicating directly with the judge or offending lawyer or communicating with the supervising judge or ultimately reporting to the Office of Disciplinary Counsel or the Judicial Conduct Board.
There is no mandatory requirement under those circumstances to report to the disciplinary authorities. That requirement is only if the judge has actual knowledge of conduct that raises questions as to a judge or lawyer’s honesty, trustworthiness or fitness.
Rule 2.15′s mandatory reporting requirement is absolutely necessary to ensure the integrity of the bench and the bar. The disciplinary system is an honor system of sorts. Neither the Judicial Conduct Board nor the Office of Disciplinary Counsel have the resources to ferret out all misconduct. To a large extent, those offices rely on self-reporting and individual reporting. The judicial officer is in a unique position, through contact with lawyers and other judges, to file a report if there is serious misconduct being committed by a fellow judge or lawyer. The days of turning one’s head are long past. Obviously, no one likes to turn in a fellow lawyer or a judicial colleague, but the rules make it mandatory. Moreover, the concept is important. The independence of the bench and the bar rely heavily on the effectiveness of the attorney and judicial disciplinary systems.
Since 1968, with the Pennsylvania constitutional changes, the modern disciplinary systems were created and the Pennsylvania Supreme Court was given the responsibility to supervise the bench and the bar. In 1993, the constitution was amended to create the Court of Judicial Discipline, with direct responsibility for ensuring the integrity of the judiciary. If the bench and bar cannot police themselves, then ultimately that independence can be lost and executive regulatory agencies would take over. Periodically, the Federal Trade Commission and the Pennsylvania licensing boards try to get a foothold in the regulation of judges and lawyers, but in the past that has been stopped. To effectively police the profession, lawyers and judges have to report at least the most serious misconduct, no matter how distasteful it may be to report a colleague.
The new rules have narrowed the scope of the mandatory reporting, but it is critical that these new rules be complied with by all judicial officers.
Judges writing for profit must be very
cautious to protect the judicial institution.
Are there any restrictions on a judge writing articles or a book to be published by for-profit entities?
When a judicial officer writes or publishes, there is a distinction between publishing with a for-profit organization and a nonprofit organization.
A judicial officer is encouraged to participate in educational, religious, charitable, fraternal or civic activities, under Rule 3.7 of the new Code of Judicial Conduct. Under Subsection (a), the judge is encouraged to write, lecture and speak on both legal and nonlegal subjects if such activities don’t detract from the dignity of the judicial office.
But if the judge is writing for profit, such as a book or memoir, Rule 1.3, titled “Avoiding Abuse of the Prestige of the Judicial Office,” could be implicated. That rule states a judge cannot abuse the prestige of the judicial office to advance his or her personal or economic interest or allow others to do so. Of interest is Comment 4 to Rule 1.3, which notes as follows:
“Special considerations arise when judges write or contribute to publications of for-profit entities, whether related or unrelated to the law. A judge shall not permit anyone associated with the publication of such materials to exploit the judge’s office in a manner that violates this rule or other applicable law. In contracts for a publication of a judge’s writing, the judge should retain sufficient control over the advertising and promotion of such writing to avoid such exploitation.”
This is a very important rule. Over the years, there are judges who have published from the bench. The late Justice William O. Douglas of the U.S. Supreme Court published a number of books while he was a sitting justice, not only on legal issues. Recently, one or two U.S. Supreme Court justices have published autobiographies.
Any judge who is publishing with a for-profit organization has to make sure the contract he or she signs allows the judge to control the advertising and promotion.
For instance, advertising that might suggest “tough judge reveals all” or things of that nature would be entirely inappropriate. Promotional activities that suggest a judge is creating division in the court or promotions that are sensational in nature are prohibited. Personal appearance by a judicial officer in promoting a book has to be very carefully done. Obviously, a judge should never appear in a judicial robe. The judge should make clear the book had nothing to do with his or her judicial responsibilities.
When a judge writes a book of this nature for profit, it cannot be written on judicial time. A judge cannot, on judicial time, perform unrelated business or for-profit activities.
Rule 3.1 of the new Code of Judicial Conduct states a judge has to regulate his or her extrajudicial activities to minimize conflict with judicial duties. A judge is prohibited from making use of court premises or staff or other resources for business except for incidental if the activities concern the law, legal system or the administration of justice.
Sometimes, particularly if one is a judge for many years, it is easy to forget the line between one’s personal interest and the judicial duties and responsibilities. But in the modern world of judicial ethics, that line has to be clearly drawn and understood, particularly in dealing with profitable activities and ventures by judges.
Therefore, any judge who is writing for profit has to be careful how the book or article is going to be promoted and must reserve rights to approve such promotions. Although this can be at times burdensome, it is important at all times to protect the judicial institution.
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.