Pledges to support organizations are prohibited.
I saw a candidate for the court of common pleas receive the endorsement of a county Fraternal Order of Police and in the endorsement agreed to sign a pledge to support issues involving police and other matters. Is that improper?
Clearly, no judicial candidate should ever sign a pledge as to what he or she is going to do or not do in office other than to be fair, just, knowledgeable in the law, supportive of the constitution, and to run an efficient and courteous courtroom. There can be no other pledges.
A judicial officer cannot come to an elected position with an agenda. Whether a judicial candidate was a prosecutor or a defense lawyer or a general practitioner, etc., when they become a judge they are none of those. Whatever areas they may have emphasized in their law practice no longer are part of their mindset in terms of bias in deciding cases. If a person can’t do that or comes to the court with an agenda or a pro-prosecution or pro-defense view, he or she will not be a good judge and should not run.
The Code of Judicial Conduct is fairly clear. The judge under Canon 1 has to uphold the integrity and independence of the judiciary. Under Canon 2, the judge must avoid the appearance of impropriety. Clearly, if a judge is giving pledges to the Fraternal Order of Police or other organizations, both of those canons are clearly violated.
A judge cannot give pledges. A judge certainly, under recent court decisions, can discuss his or her judicial philosophy. But he or she cannot indicate how he or she decides cases. But giving a pledge as to how one is going to act is prohibited. Under Canon 3(a) of the Code of Judicial Conduct, a judge has to be faithful to the law and maintain professional competence in the law. A judge must maintain order and decorum in the courtroom.
By giving pledges, a judge would not be able to fulfill all of these canons.
Although there are critics of judicial elections, a judicial candidate who has to go out and campaign and meet voters oftentimes becomes a better judge. Further, the judicial candidate gets to know his or her community far better by having to campaign throughout the community. But elections impose temptations. Groups and supporters want promises. But promises can’t be made by a judicial officer.
Finally, in Canon 7(B)(1)(c), the following prohibition against pledges is clearly stated:
"[Candidates] should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; make statements that commit the candidate with respect to cases, controversies or issues that are likely to come before the court; or misrepresent their identity or qualifications, present position or other fact."
Therefore, there is no question the Code of Judicial Conduct prohibits pledges or promises or commitments. Any pledge to an organization, such as the Fraternal Order of Police, is absolutely and totally prohibited. A judicial officer has to be strong and independent. Pledges or promises don’t fall into any of those categories and should be avoided.
Lawyers should withdraw if clients are not truthful.
I am representing a client and I do not believe the client is truthful. I believe some of the evidence the client wants presented will be false. I want to withdraw and may I reveal the above concerns as the basis for a withdrawal?
To seek to withdraw from a client’s case is an extreme step. Obviously, there are times when a lawyer must do so. But before doing that, a lawyer should carefully review his or her position and also speak to the client in some detail.
If the lawyer believes the client is presenting false information, the lawyer should confront the client. The lawyer should try to talk to the client about not pursuing the course of action. But if all else fails and the lawyer truly believes professionally that he or she cannot present what the lawyer believes to be false evidence, then the lawyer must withdraw.
Rule of Professional Conduct 1.16(a) indicates a lawyer shall withdraw from representation if the representation will result in violations of the Rules of Professional Conduct. Obviously, submitting false information or false testimony would clearly violate Rule 3.3(a). It would also violate Rule 8.4(c), involving deceit or fraud. Also, it would violate Rule 8.4(d), involving conduct contrary to the administration of justice.
These rules are not to be taken lightly. They are serious violations and any one of them could result in a suspension from the practice of law or even disbarment.
If the lawyer is seeking to withdraw, the lawyer should avoid stating the client wants to present false evidence or false testimony. To state that reason may violate Rule of Professional Conduct 1.6, involving confidentiality. Even if a lawyer is getting out of a case, a lawyer does not want to hurt the client. The better practice is to use some more general terms, such as irreconcilable differences between the client and the lawyer. Sometimes a judge might want more specifics or else he or she will deny the motion. But there are limits to what the lawyer can do. The lawyer is limited to what he or she can reveal pursuant to the confidentiality rule, Rule 1.6. If the lawyer has to be more specific with a judge, the lawyer should seek an ex parte conference with the judicial officer.
But the concept of presenting false evidence is absolutely prohibited by the Rules of Professional Conduct (Rules 3.3, 3.4, 4.1 and 8.4(c)), and a lawyer cannot allow it to happen. There is some exception in the criminal case for the criminal defendant’s testimony, but it is a limited exception. In all other cases, there is no exception and to present false testimony or the failure to correct false testimony when known could have serious consequences on a lawyer’s career and the status of the lawyer’s license.
The practice of law is not a game. There are strict rules that have to be complied with. Creating false evidence to help a client is absolutely prohibited and the lawyer has to stand firm in those situations. In Comment 3 of Rule 1.16, it is noted that the lawyer may state in the withdrawal petition that "professional considerations required termination of the representation." The comment indicates that statement should ordinarily be accepted.
In conclusion, sometimes representing a client creates more difficulties than a lawyer really wishes to encounter. But there are some bottom lines beyond which a lawyer cannot go. Presenting false evidence or false testimony is absolutely prohibited. The lawyer must seek to withdraw and the lawyer should not state the reasons except under the most extreme circumstances and, even then, only if there is an exception to Rule of Professional Conduct 1.6.
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.