Judicial officers are always under a microscope.
As someone who is considering running for judge, what are the most serious problems a judicial officer can get into that could cause major judicial disciplinary consequences?
The question is difficult to answer because the Court of Judicial Discipline has been somewhat erratic in the nature of discipline imposed against judicial officers. One would think that serious misconduct on the bench, such as fixing one’s own traffic tickets, would result in removal. Instead, the decision imposed a minor suspension.
In reading recent decisions by the Court of Judicial Discipline, there are some common themes. Obviously, criminal conduct will usually result in serious judicial discipline.
Improper conduct on the bench can result in very serious discipline. Other than a judicial officer not deciding cases properly or receiving benefits for deciding cases, the following are the major concerns of any future jurist:
The first major concern is timely appearance on the bench. The CJD and the Pennsylvania Supreme Court have come down very hard on judges who don’t timely appear in the courtroom on a regular basis or who regularly call out at the last moment when they are not ill.
If the judicial officer’s courtroom is open at 9 a.m., the judge should be there. At least in one recent case, both the Pennsylvania Supreme Court and the CJD ignored the defense that the judge could come out a half-hour later to allow time for the attorneys to organize the cases in the room.
These problems often come to the Judicial Conduct Board’s attention because someone starts keeping records. This has been done in the past by a district attorney’s office or perhaps by a police officer who has decided to run for district justice. Someone who is in the judge’s courtroom regularly starts to keep a record of when the judge entered the courtroom each day and how much time elapsed and how long people waited. These records are kept over a two-year period. Then the complaint, all documented, is filed with the Judicial Conduct Board. It looks very bad if someone can show that for 120 days on the bench, the judge never showed up until 30 to 50 minutes later. The judge cannot go back and recall because of the passage of time.
The second problem is demeanor. A judicial officer does not have the luxury of losing his or her temper on the bench. Obviously, a judge can get angry and demonstrate his or her displeasure. But obscenity is prohibited. Screaming and yelling at people, particularly laypeople, is prohibited. Even screaming and yelling at lawyers is prohibited. Experienced judges who also were experienced lawyers know that it is the Eleventh Commandment that you do not criticize a lawyer in front of his or her client unless the lawyer has done something horrifically bad. The practice is to go to sidebar or in chambers and then let the lawyer have it if he or she engaged in conduct he or she should not be doing.
Consistent examples of bad demeanor, discourteous treatment, bad language, yelling and screaming can well cause a judge to be removed or suspended from his or her judicial position. There are two recent cases that reflect that.
The third area where judges can have problems is delaying decisions. In cases, there is no reason why motions should be sitting around for several months. A judge who is not timely making decisions could ultimately face some serious discipline. Years ago, that resulted in a public reprimand, but in this modern era, many cases not being decided within the 90- or 120-day period could result in significant suspension for the judicial officer.
The next area is how one treats personal staff. Demeaning or harassing treatment or sexually questionable jokes or comments have gotten some judges in Pennsylvania into very serious problems. More importantly, one can’t use staff to do personal business. This is a hard concept, particularly for judges who often take their secretaries from their law practices with them. In a law practice, the secretary does everything for the lawyer, including many aspects of the lawyer’s personal life and activities. But a judicial officer’s secretary can’t do that.
No longer can the judge have the judicial secretary handle some real estate properties the judge might have on the side. Although that secretary did that while the judge was a lawyer, that could result in some rather serious discipline as a judge since it is using public time and money. The fact that the judicial secretary or law clerk might be a relative or even the wife of the judge does not change this prohibition. A judge cannot have judicial staff do personal errands for him or her.
The next problem that gets judges in some difficulty is ex parte communication. There is no reason any lawyer should be talking to a judge about any case before the judge, except in the presence of the opposing lawyer. There is no exception for old friends or political friends to allow these ex parte communications. This is serious misconduct and could create some rather serious problems.
The next is a judge’s drinking habits. Although no one expects a judge to become a monk, a judicial officer doesn’t have the luxury of drinking excessively in public, or even in private. Going out with friends and meeting people should not result in the judge having several drinks. Judicial officers may not realize the extent of the talking behind their back when people go to a party or dinner with a judge or see a judge and the judge has had four or five drinks. It could also get the judge in trouble. Drinking over lunch at a bar or restaurant and going back to the courtroom might be something everyone chuckles about, but it is very serious misconduct.
One cannot be under the influence of alcohol deciding cases. A judge has to be aware of the very negative impact on the judiciary of a judge who is regularly seen publicly drinking alcohol.
A judicial officer has to realize he or she is under a microscope. Perhaps in a large city like Philadelphia it is not as obvious. But in the smaller counties where judicial officers are known, they are watched like a hawk when they are in public. People remember what they do and say. Inappropriate conduct can get a judicial officer in trouble. Deciding cases when friends are involved or relatives or lawyers are contributors or former partners can be a problem. Obviously, a judge can never decide a case involving relatives. At a minimum, there has to be disclosure of the relationship. Whether a judge should or should not disqualify himself or herself might be an issue, but there has to be disclosure so everyone knows. Failure to make that disclosure can cause a problem if it turns out that the lawyer on the other side had been a major contributor to the judicial campaign. These acts clearly negatively impact on a judicial officer.
Taking gifts from lawyers or others is something a judge should not do. Lawyers always want to take a judicial officer out to dinner and pay the bill. Lawyers and law firms will pay for seminars for judges to attend and pay the overnight cost. Lawyers will pay for golf trips with judges and more. No one is saying a judge should be removed from the world and certainly a judge is allowed to have social friends and companionship, but there is no reason for a judge to allow others to pay for their meals, their drinks, their room and board or other gifts. Although the Code of Judicial Conduct has no prohibition against gifts, it is just a bad idea, and a judicial officer should not allow it. District judges do have prohibitions against receiving gifts. There is nothing that raises more concern among the public than reading about a judge accepting a gift from a law firm.
The best anti-gift test of all is a very simple test. If one can practice law for many years and never receive a gift from anyone, then there is no reason in the world why, as a judge, the judicial officer should start to get gifts. People are trying, directly or indirectly, to curry favor and buy influence. It is as simple as that. I have been practicing law for 40 years and no one has given me a gift. If I suddenly became a judge and started to receive gifts, there is no other conclusion that could be drawn other than improper attempts to gain a favorable decision.
A judicial officer has to maintain the sense of dignity and knowledge that is necessary to have the public confidence in the judicial system. Most judges don’t commit crimes or take bribes. Most judges are excellent people who are respected by all. But the things that annoy the public and can get a judge in trouble are some of the items set forth above.
Being a judge is really a privilege. It is a great honor. But the judge doesn’t own the office. Judges who serve a long time sometimes forget their responsibility to the office they serve. A judicial officer, every day, should wake up recognizing how lucky he or she is to be able to serve the public, and how privileged he or she is to be a judge. Judges should not forget that. If a judge begins to believe he or she is bigger than the office he or she holds, then there is a problem, and it is time for him or her to consider another career.
Lawyers should not advertise based on fees.
I want to begin a vigorous advertising campaign to try to pick up business for my law firm. I want to advertise that my fee is substantially lower than all lawyer competitors in this particular area. Can I ethically do that?
The answer is no. In answering a question of advertisement, one always has to consider the First Amendment. But commercial speech is not as protected as noncommercial speech, as every lawyer knows. The rules at issue are 7.1 and 7.2 of the Rules of Professional Conduct, dealing with advertisement. Although there is no specific rule about suggesting one’s fee is lower than others in the area, this type of advertisement normally would violate Rule 7.1, concerning communications about a lawyer’s services. The rule prohibits false or misleading communications.
The rule also precludes unjustifiable expectations. Although that language is not specifically stated in the rule itself, it is stated in the comments to the rule. In fact, in Comment 3, the rule talks about fee advertisements.
“Similarly, an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that comparison can be substantiated. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.”
Therefore, an advertisement where the lawyer is stating his or her fee is lower than anyone else is a very dangerous course of action. It can really create unjustifiable expectations and may be false. Certainly, no lawyer is in a position to do a survey of the fees of all the other lawyers in that particular area.
In advertising about fees, Rule 7.2(h) should also be considered. That rule notes that for advertisements concerning information about lawyer’s fees, a lawyer who indicates there will be no fee unless there is a recovery has to disclose to the client that the client would be liable for certain costs. The rule also notes that a lawyer who advertises a specific fee has to honor that fee for at least 90 days after the publication. The problem is if one puts that fee in an advertisement that is published annually, then the fee can’t be changed for one year. The requirement to maintain the fee for 90 days and/or one year can create some problems for a law firm.
Trying to undercut another lawyer’s fees and take a specific case can lead to a charge of interference of a business contract.
The better practice for a lawyer is not to engage in fee-comparison advertisement. It is unprofessional and unseemly. The lawyer might also be charged with misleading a client. All advertisements have to be truthful and cannot mislead, directly or indirectly.
If there are fee comparisons in a lawyer’s advertisement, the comparison must be accurate. There may be the need for disclaimers to ensure there are no unjustified expectations.
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.