There are limitations on what a judge should do when making these appointments or hiring his staff.

I am a judicial officer and wish to hire as my secretary and as my law clerk two people whose families were very active in my judicial campaign. Can I do so?

Samuel C. Stretton. Samuel C. Stretton.

The answer is probably, but a judicial officer has to be aware that there are rules in the Code of Judicial Conduct that have to be considered. Rule 2.13 of the Pennsylvania Code of Judicial Conduct deals with administrative appointments and hiring decisions by a judicial officer. That rule is very clear that in making appointments they must be done impartially and on the basis of merit. There can be no nepotism, favoritism and unnecessary appointments.

Rule 2.13(b) of the Pennsylvania Code of Judicial Conduct notes that a judge shall not appoint a lawyer to a position if the judge either knows the lawyer or the lawyer’s spouse (or domestic partner) has contributed as a major donor within the prior two years to the judge’s election campaign. Therefore, for a paying position, there is a two-year window. But there are exceptions under Rule 2.13(b) and the judge can still appoint the person if their position is substantially uncompensated. In other words, for instance, if a justice on the Supreme Court appointed someone to the Disciplinary Board, they could do so even though that person may have made a substantial campaign contribution because serving on the Disciplinary Board is an unpaid position. Further, the appointment could be made if it was done from a rotation from a list of qualified and available attorneys. The list has to be made without regard to the contributions. In other words, on a court-appointed list, a judge could appoint a lawyer who contributed to their campaign if the lawyer was qualified and was on the list and appointed on a rotational basis. The final exception to the rule is the judge finds that no other lawyer is willing or competent or able to accept that position. That sometimes happens in small counties where there are only a limited number of lawyers. A judge may want to appoint a competent person, but that person has contributed to the judicial campaign. If there is no other lawyer available who is competent to handle the position, then that is another exception to Rule 2.13(b).

It should be noted that the rule does not prohibit hiring of a secretary whose spouse or the secretary herself may have contributed to the judicial campaign.

Appointments of guardians can also be a major problem. If the court appoints administrators, guardians, etc., a similar rule should apply. Perhaps what is most important is the compensation for guardians. Compensation cannot be excessive, but much be a fair value for the services. Under Pennsylvania Rule of Judicial Conduct 2.13(c), the following is noted:

“A Judge shall not approve compensation of appointees beyond the fair value of services rendered.”

Therefore, if a lawyer is appointed guardian, charging a $500 or $600 an hour rate would be excessive under the circumstances.

A review of some case law shows examples of misconduct. A judge in Arkansas was censured for hiring his girlfriend as a probation officer. In Alaska, a judge was reprimanded for hiring the coroner because the chief justice had recommended to him. In Indiana, a judge was reprimanded for entering into a court contract when it appeared he was doing it as a favor for someone who had helped him. In California, a judge was reprimanded for appointing attorneys who had rented office space from the judge.

The bottom line is it is administrative appointments and hiring has to be done on a common-sense basis. Rule 2.13 attempts to establish the boundaries for hiring and appointments. It is understood that judges want to hire people they know or trust. There is really nothing wrong with that, unless it’s a family member which is prohibited under Rule 2.13(a)(2). But appointments or hiring have to be on merit and not on favors, contributions, long-time friendships, etc. The court system is not retirement ground for the judge and his friends. Therefore, there are limitations on what the judge should do when making these appointments or hiring their staff.

In evaluating appointments, a judge always has to keep in mind not only Rule 2.13, but also the more general rule, which is Rule 2.2 that a judge must perform all duties of the judicial office fairly and impartially. That includes hiring. As a judge holds an office for years and years, particularly in smaller counties, the public nature of the office sometimes becomes blurred in the judicial mind. At times, it is easy for the judge to view themselves as the office. But no matter how long one holds a judicial post, one must remember it’s a great privilege and honor to have that position. But it is a public position and not theirs. Serving a public position with high public trust requires appointments and hires to be more than favors owed or friendships fulfilled.

Lawyers need to be careful of threatened criminal prosecution issues.

I am representing a client in a civil case that is somewhat contentious. Opposing counsel has just sent a letter to me advising me that if this case isn’t resolved they are going to seek criminal prosecution from the local District Attorney. Is that unethical?

By raising this question, the writer of the question is showing his age. At one time, it was clearly unethical and in violation of the rules to threaten criminal prosecution to gain an advantage in a disciplinary case. Under the old disciplinary rules that were in effect from approximately 1972 until 1987, there was a Disciplinary Rule 7-105. That rule in essence stated lawyers shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.

But when the new Rules of Professional Conduct were originally adopted in 1987, Rule 7-105 was eliminated and no longer appears in the Rules of Professional Conduct.

There was good reason to eliminate it. When one sits down and really thinks about the issue, it may be a valid tactic to threaten criminal prosecution if there is a basis for criminal prosecution. If one now suggests criminal prosecution it has to be a serious threat and not one used as a form of extortion.

Therefore, there is no prohibition against threatening criminal prosecution, but a lawyer should be extremely careful because such threats could easily cross the line into extortion or suggestions of undue influence, etc. that could cause some real problems for the lawyer and their client.

An interesting byproduct of the criminal threat issue is whether in a civil case if it’s settled can there be a settlement agreement not to bring criminal prosecution? The answer is no. Such an agreement would be against public policy and could be an obstruction of justice. Private parties should not agree for civil resolution or payment of funds to not bring or testify against someone if there is a criminal act. That decision should be made solely by the District Attorney. Having said that, apparently there is some disagreement in the world of ethics. In the Pennsylvania Ethics Handbook, 5th Edition, edited by Attorney Michael Temin and Attorney Thomas Wilkinson Jr., Page 305, notes that, “The Rules of Professional Conduct do not prohibit an agreement to refrain from instituting criminal charges as part of a settlement of a civil claim, provided that the criminal charges relate to the civil claim and both claims are warranted by the facts and the law.” The book references the American Bar Association’s Formal Opinion 92-363.

With all due respect to the excellent Pennsylvania Ethics Handbook, this writer strongly disagrees with that conclusion and would warn any attorney thinking of using this broad civil release to not include prohibiting criminal charges. Doing so could result in some serious problems, such as obstruction of justice charges. Similarly, if part of an agreement, there is an agreement not to report the lawyer to the Disciplinary Board, a similar position would be asserted.  This is prohibited.  It is not allowed and should not be part of any civil release. It is the opinion of this writer such a provision would not be enforceable. Perhaps reasonable minds can disagree. At least all lawyers are aware that they must be very cautious in this particular area of having releases prohibiting criminal prosecutions or Disciplinary Board complaints.

In conclusion, at least in Pennsylvania, there is no prohibition against threatening criminal prosecution to gain a civil benefit. That rule was eliminated 32 years ago. But there can be a potential legal minefield. Every lawyer has to be careful of threatened criminal prosecution issues of extortion and obstructions of justice, among other issues. These could come back to haunt the lawyer who makes that threat.

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, Pennsylvania, 19381.