Judicial campaigns must strictly comply with the Election Code.
As a candidate running for common pleas court, what kind of letters can I send to supporters, contributors and volunteers?
What a candidate for judge can or cannot do is defined in Canon 7 of the Code of Judicial Conduct. The question of what kind of letters a judicial candidate can write has caused problems over the years. The starting point is Canon 7(B)(2):
“Candidates, including an incumbent judge, for a judicial office that is filled by public election between competing candidates should not themselves solicit or accept campaign funds or solicit publicly stated support, but they may establish committees of responsible persons to secure and manage the expenditure of funds for their campaign and to obtain statements of public support for their candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from lawyers.”
The rest of Canon 7(B)(2) deals with the timing of setting up a committee and when the committee can begin soliciting public support and contributions.
Therefore, a judicial candidate who is serious would normally have a campaign committee. Without the campaign committee, no money can be raised, other than the judge’s personal money. Unless the judge is some local hometown hero, no one is going to win an election without raising money and expending it to notify voters who is running and their positions and qualifications.
But the judicial candidate has to get used to allowing his or her campaign committee to do the campaign solicitation. Letters seeking support should be signed by the campaign committee chairman or treasurer. Letters seeking contributions again have to be signed by someone on behalf of the judge’s committee. The judicial candidate is not permitted to sign letters asking anyone for support or asking anyone for contributions. The judicial candidate can’t receive contributions. If someone hands checks or money during a campaign appearance to the judicial candidate, the candidate should immediately advise the person to give it to someone connected with the judicial committee. In any event, no candidate can receive more than $100 in cash per the Election Code.
Failure to comply with Canon 7 prohibition can result in problems for a judicial candidate. Recently, a judge was disciplined for his conduct as a candidate in providing incorrect information to a bar association committee. The days of judicial candidates getting free passes for improper campaign activities are gone.
From a practical standpoint, how is Canon 7 followed? It is followed by a judicial candidate not sending the letters. If there are going to be volunteer or contributor meetings, the letters should come from the committee on behalf of the judge. The judicial candidate should not sign the letters.
The judge can certainly speak at campaign meetings and set forth his or her positions. The judge can go on the Internet or publish his or her positions in newspapers or on websites. But the judge cannot seek support or contributions and can’t send letters calling for volunteers to come for meetings for the support of the candidate. That would appear to be prohibited under Canon 7.
Clearly, someone who is running for judge wants to be conservative in interpreting Canon 7. A judicial officer cannot afford to be seen as someone who is skirting or ignoring the law. Gaining that kind of reputation would be a very bad start to holding judicial office.
The reason for this rule is to create a bright line. Many people do not like judicial elections. Judicial elections raise problems because the cost of raising money can compromise a candidate if the candidate is elected. Candidates need money and support to win. If elected, those same people who contribute and give support may well appear in cases before the judge, either as parties or lawyers. This creates an unseemly situation where a judicial officer is deciding cases of political supporters.
But there is no other way to get around the situation because of the importance of judicial elections. As a result, the bright line is that the judicial candidate can’t have a hand in seeking public support or contributions. The judge is one step removed from that. Whether that is truly an effective barrier remains to be seen, but at least it is an attempt to try to maintain the independence of the judiciary and remove the judicial officer from the actual campaign solicitations and begging for support. As a result, this rule should be scrupulously complied with.
There is always a fine line to what is seeking public support and money and what is just general campaign information. The best practice is for a judicial candidate not to send letters that come even close to raising a question. Let the campaign committee do that. That is why one has a campaign committee.
The bottom line is every judicial candidate has to try to protect the institution he or she seeks to hold. Campaigns that don’t comply with Canon 7 or the Election Code can embarrass the judiciary, particularly if the candidate is elected. Therefore, a judicial candidate has an obligation to know these rules and comply with them and ensure that his or her campaign committee does also. Elections may not be the best way to select a judicial officer, but the appointment process leaves a lot to be desired in terms of political realities and the lack of transparency. At least in an election it is all laid out. Therefore, elections are important, but the quid pro quo is that the judicial candidate must be aware of the rules and ethics and comply with them during the judicial campaign.
Any money a lawyer holds is held as a fiduciary.
I have been practicing law for 45 years and have always distinguished between client funds, which I put in my escrow and/or IOLTA account, and third-party or fiduciary funds, such as estate money. Therefore, if I am holding these third-party or fiduciary funds, do I have the same obligation I have for holding client funds?
The problem with getting older or practicing for a long time is that the world changes too fast. Also, older practitioners make assumptions of the way things once were. Sometimes those assumptions are based on misinformation. The way lawyers practiced 20 or 30 years ago should not necessarily be held out as how they should have practiced. Many lawyers must remember that ethics wasn’t taught in many law schools until about 20 or 25 years ago with any regularity. As a result, lawyers who have been practicing more than 30 years may have learned from lawyers who might never have read the Rules of Professional Conduct or the old Disciplinary Rules, as they were called many years ago.
Older practitioners are able to get away with it because there was no organized disciplinary enforcement procedure. The Office of Disciplinary Counsel wasn’t created until 1972. Before that, each county had its own individual bar association disciplinary procedures. Philadelphia had a committee of censures. These committees had limited resources and did not have the professional staff to pursue statewide, uniform discipline.
But to go back to the question, the Rules of Professional Conduct involving holding funds are now found at Rule 1.15, which specifically notes that under Rule 1.15(a)(2) and (3), the fiduciary funds are governed by Rule 1.15. Therefore, if a lawyer is acting as the administrator and/or attorney for an estate and is holding estate funds, this rule must be complied with.
Most lawyers would create a separate estate account, but that has to be an interest-bearing account to hold the funds pending their distribution. There has to be an escrow-type account. If the lawyer places the estate funds or fiduciary funds in an IOLTA account, then those funds can only remain there for a short period of time. If the funds are more than nominal amounts, they may have to be replaced and moved into an interest-bearing escrow account.
Holding money long term in the IOLTA account is prohibited. That is the distinction between qualified funds and nonqualified funds. Qualified funds are those that go in an IOLTA account and are expected to be held for only a short period of time. Nonqualified funds can be held for a longer time.
That is the major difference in this modern era. In the old days, the escrow account was to be used only for client funds. Of course, now there is the IOLTA account (non-interest-bearing account) for qualified funds, and there is the interest-bearing escrow account for nonqualified funds, which are going to be maintained for a period of time.
But the key thing is for the lawyer to understand that clients’ funds aren’t the bright line any more. Any funds a lawyer is holding for someone else, i.e., fiduciary funds, whether it is an estate, a dispute, doctor’s fees or something else, are fiduciary funds and governed by Rule 1.15.
A lawyer has obligations when holding these funds and can’t distribute these funds if there is any dispute. Many lawyers get themselves in trouble when a client demands that the funds be distributed to the client and the client states he or she will then pay whatever provider or person has a claim to those funds. A lawyer who makes that distribution without the other party’s consent could well end up paying the other party money and/or facing potentially serious disciplinary action for misusing the funds.
On the subject of holding fiduciary funds, it should be noted that Rule 1.15(L) does allow fiduciary funds to be placed in an investment account, which are authorized by law.
Therefore, there is really no mystique to what funds a lawyer is to hold in escrow. If it is not the lawyer’s money, then it is in the IOLTA account. If it is a fee that hasn’t been earned, it is in an IOLTA account. If it’s money being held more than a few weeks, then it goes into an interest-bearing escrow account. If it is estate money, it can be placed in an investment account that produces some form of interest as long as it is allowed by law.
In other words, highly speculative
investment accounts should not be used
for fiduciary funds. Therefore, to answer
the question, the assumption the
questioner has is wrong. Any funds are fiduciary funds. Whether it is a client or any third party, if a lawyer holds money, the lawyer holds it as a fiduciary. Failure to do so could have very unfortunate and unpleasant consequences.
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.