Judicial candidates must protect the dignity of the office.
I am running for judicial office. What should a candidate for judicial office not do?
The Code of Judicial Conduct and the Standards of Conduct for Magisterial Judges set forth some of things judicial candidates should and should not do. Canon 7 of the Code of Judicial Conduct and Rule 15 of the Standards of Conduct for Magisterial District Judges are the appropriate rules. The rules note the following:
• If a judicial candidate is going to raise money, the candidate can only do so through his or her campaign committee. The candidate cannot ask for money, nor can the candidate receive money. But the candidate can contribute his or her own funds to the campaign account at any time.
• The time for raising campaign funds begins during the year of the judicial election, starting 30 days before the date for circulating nominating petitions.
• There can be no pledges or promises of conduct in office.
• Although a judicial candidate can speak out generally, he or she must be very careful about not commenting or deciding specific legal issues that might come before the candidate.
• Campaign speech suggesting a candidate will present harsh criminal sentences as a judge is a prohibited type of statement. Commenting on how one will handle a case as opposed to speaking on judicial philosophies is prohibited.
• A judicial candidate cannot endorse candidates for other offices other than the same office the judicial candidate is running for.
• A judicial candidate can receive endorsements, but only if there are no strings attached.
• A candidate for judge is not supposed to sign nominating petitions.
• When campaigning, every judicial candidate must realize that he or she has to be very careful about commenting on judicial opponents. False criticism can hurt not only both candidacies, but, more importantly, can hurt the judicial institution.
• A judicial candidate should not misrepresent his or her qualifications, whether it is letters to a bar association committee or to the public, the candidate must be candid about his or her experience, the number of cases tried and argued or the candidate’s financial situation.
• Campaign with dignity. A judicial candidate doesn’t have the luxuries that other candidates have in making reckless statements or acting inappropriately. If one is running for judge, the candidate should be wearing appropriate clothing — the same clothing one would wear in a courtroom. It is important to highlight the dignity of the judicial office.
• No promises can be made.
• As to political signs, obviously a judge should use them, but they must be put in the appropriate places. Judicial signs should not be on lawns or property where there is no advance permission.
• A judicial candidate’s campaign should not engage in stealing or tearing down opponent’s signs. Perhaps other candidates do that (although doing so could result in theft charges), but a judicial candidate cannot because of the dignity of the office.
• Be sure that the campaign does not illegally spend money. All campaign funds must be properly accounted for.
• Make sure the campaign committee timely files all financial reports. Failure to do that could bring disgrace not only to the candidate, but to the judicial institution.
• Finally, when speaking, a judicial candidate has no margin for error. Inappropriate words should not be part of the campaign discussion.
A judicial campaign is different from every other political campaign in that there is a much greater need to protect the underlying judicial office and the dignity of that office. Immeasurable damage can be done during a campaign if a judicial candidate acts inappropriately.
Prosecutors should not approach unrepresented defendants.
I am a young assistant district attorney who handles many preliminary hearings. Surprisingly, a great percentage of criminal defendants do not have counsel and represent themselves. Sometimes I have an offer to make or it is in the defendant’s interest to waive the preliminary hearing. Can I approach the defendant and ask him or her to do so?
Obviously, approaching a criminal defendant is the same as approaching anyone on the opposite side in any litigation. There are specific rules of conduct that apply, particularly Rules of Professional Conduct 4.3 and 4.4. Under these rules, an attorney cannot take advantage of an unrepresented person. The lawyer is not allowed to give the unrepresented person advice other than to seek a lawyer.
The requirements for prosecutors are memorialized to some extent in more detail in Rule 3.8. Under Rule 3.8(c), the prosecutor is not to seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing. But to understand the impact of the rule, one must read the comment. Comment 2 to the Rule 3.8 notes as follows:
"Paragraph (c) does not apply, however, to an accused appearing pro se with the approval of the tribunal."
The key is the status of the unrepresented person. If unrepresented, a prosecutor cannot approach and give advice to plead to a summary offense or waive the preliminary hearing. The prosecutor is bound by Rules 3.8(c), 4.3 and 4.4. But if the judge has allowed the pro se defendant to represent him or herself, then the prosecutor can, according to the comment.
The judicial officer has to bring the defendant in open court and have the defendant formally waive the right to counsel after the appropriate colloquy. The judge has to then make an actual decision that the person can represent him or herself. Only then can a prosecuting officer have the discussions with the individual. Even those discussions are limited by Rule 4.4. One still has to respect the right of an opposing person and not use means to embarrass, delay or burden the third person or use methods to violate his or her rights.
Every assistant district attorney should be careful. If the judge at the preliminary hearing suggests that the assistant district attorney talk to the unrepresented person and tell him or her to either waive or work out a plea for a summary offense, the answer is that the assistant district attorney can’t do so unless and until the judge has a hearing and makes a decision that the person can represent him or herself.
This is not a burden. There are very important pretrial rights that can be given up. If a person wants to represent him or herself, it is one thing, but the court should make sure the defendant understands before the prosecutor is allowed to talk to him or her. Many people don’t realize what rights they are giving up and/or just don’t have the funds for an attorney. Once the right to counsel is properly explained to them by the judge, perhaps they will agree to apply for a public defender or court-appointed counsel if they cannot afford counsel.
The prosecutor cannot talk to the person, except in very limited circumstances, as set forth above, where the court has allowed the person, after a hearing of record, to proceed pro se. •
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.