A strong, unified judicial system is important for maintaining the public’s respect.

The Pennsylvania Supreme Court has denied the jury commissioner challenge and many jury commissioner offices have been abolished in Pennsylvania. In what direction is the judiciary going?

The loss before the Pennsylvania Supreme Court, where the court allowed the statute to stand that allows each county to abolish its jury commissioners, raises some very serious concerns. [Editor's note: Samuel C. Stretton argued the case on behalf of the commisioners.] Although no opinion has yet been issued, only an order, the court rejected an argument that this violated the separation of powers in the unified judicial system and was an improper and illegal delegation of legislative authority under Article 2, Section 1, of the Pennsylvania Constitution.

The concern is where the unified judicial system is heading. The jury commissioners being abolished apparently will open the door to legislation that could abolish almost all of the other row offices. The prothonotary’s office in some home rule counties has already been held not to be a judicial office, but only a ministerial office. County commissioners, hoping to save money, might well abolish the row offices if similar legislation is passed.

If this continues, the judiciary is going to be left with a courthouse, a judge and his or her secretary and law clerk. All of the other offices that supported the judiciary will be gone or under some executive branch of county government.

The tragedy is this is happening piecemeal. There have been home rule abolishments over the last several years and other enabling legislation. Many of the abolishments are under the theory that these offices are too expensive or their functions can be achieved at a lower cost.

Although I believe that not to be correct, the bottom line is this: Why doesn’t the Pennsylvania judiciary exercise some leadership instead of allowing the legislature to slowly strip away judicial functions and to underfund the judicial system?

The Pennsylvania Supreme Court, since 1987, has been moving toward a unified judicial system, which would require all row offices and indigent defense funding to be consolidated under the Supreme Court and paid by funds from the state Treasury as opposed to being county employees and paid out of a county budget.

Now would be a logical time to unify the judicial system by completing the line of cases and following through with the plan presented in 1999 to place all of these row offices under the Supreme Court. This would truly create a unified system paid by statewide funding. Indigent defense similarly would be paid in the same manner and there would be some uniformity of offices.

Right now, with the jury commissioner office able to be abolished, it is really up to each county to decide how to replace it, if needed. Some counties have a jury manager. Others have a judge’s relative. Some are in the court administrator’s office. Perhaps some are done by the judge’s secretary.

What is lost is the independence that was the hallmark of the jury commissioners where each commissioner had to be from a separate political party. Further, what is lost is the independent person who had quasijudicial functions of ensuring the cross-section of the community, ensuring proper selection processes and ensuring that excuses were made validly. All of this is gone now.

It is further complicated by the fact that at least one county, through its county commissioner, has recently slashed the salary of all row officers to the minimum allowed under law, which is about a 50 to 60 percent cut for many people.

There is a developing hodgepodge of electronic filing systems throughout Pennsylvania. Each county has its own system, with its own passwords, etc. Some counties, such as Philadelphia, have four systems — criminal filings, civil filings, orphan’s court filings and municipal court filings on the civil side. All are different.

There is a need for a unified approach where one can file pleadings in one area and just check off which county it goes to, but everything is the same. A unified judicial system could do this. This is not happening now in Pennsylvania.

Apparently, there is a lack of will or lack of judicial courage, whether at the Supreme Court level or individual county court levels, to challenge the legislature to force this unified judicial system to come into a reality. Instead, over the last 10 years, it appears that the Pennsylvania Supreme Court has been, to some extent, complicit in allowing budgetary cuts that are seriously hurting the judiciary in performing its functions.

The Pennsylvania Supreme Court and potentially president judges of individual common pleas courts have an obligation not to acquiesce in these ridiculous budget cuts of the judiciary, but to go into court seeking a mandamus to force the legislature to properly fund the judiciary at all levels. This could best be done through a unified judicial system where the funding is statewide for all counties under the umbrella of the Supreme Court.

That is the system of the future, if the Supreme Court and the judiciary want to maintain their independence and the independence of the legal profession. Right now the direction is to the contrary and there seems to be no vision as to the future direction.

Without jury commissioners, presumably there will be innumerable challenges, county by county, to the jury selection process. Most counties that have abolished jury commissioners have not really done the diligent work of ensuring there is a good cross-section of the community. Further, all of the Pennsylvania statutes of jury selection, which are still set forth in the Judicial Code, require a jury commission with three members from separate parties that works by majority vote. Except in the nine or 10 counties that have not abolished jury commissioners, that won’t exist after January 2014.

Instead of a formal office or commission one could complain to, there is no one. Apparently, it will be a clerk in the court administrator’s office or, as noted, the judge’s secretary or some other paid employee in the executive branch or administrative branch who will have these responsibilities.

These reductions do not bode well for the legal profession and the judicial branch of government. There is a need for strong judicial leadership with a vision as to the future, and the vision of the future is a unified judicial system, state-funded, with all of these offices under the Supreme Court in the various counties. There can be no other way. But it has to be done soon before there are 66 different electronic filing systems and mass confusion for lawyers who want to practice in multiple counties.

There should be a strong reassertion by the Supreme Court of its supervisory roles of the entire judicial system. This can be done through this unified judicial system. But the current decision on the jury commissioners is a massive step backward, unfortunately. This will probably, as noted above, open the floodgates to getting rid of the other row offices.

Public confidence in the judiciary in Pennsylvania is at an all-time low. That is unfortunate, but it is the result of the Luzerne County scandals, the Philadelphia Traffic Court indictments and questions that are constantly raised about the conduct of Supreme Court justices.

Whether it is right or wrong in terms of the criticisms, clearly the public is upset. Any person who reads the online comments after an article about a judge or subpoenas for judicial records clearly knows there is a lot of anger and distrust now among the citizenry in Pennsylvania as to the conduct of the Pennsylvania judiciary. Most of that is unfortunately misguided, but it happens to be the reality in terms of what people think.

Why can’t the Supreme Court exercise its leadership now and make the changes and order a much better and stronger system?

Time will tell the direction of the bench and bar. But the bottom line is for the judicial branch to maintain its independence and for the legal profession to maintain its independence, there has to be a strong, unified judicial system that also has the public’s support and respect. Hopefully, judicial leaders in Pennsylvania will take the steps necessary to start to enact that vision instead of allowing it on a piecemeal basis to be destroyed.

Using metadata gleaned from legal documents to find information shouldn’t be allowed.

My firm is involved in civil litigation and the firm has discovered through the examination of metadata information that would be very useful in defending the litigation. Can I use this?

The use of metadata has not been fully and completely resolved in the courts in Pennsylvania. Metadata is essentially information gleaned from computer filings that shows corrections or changes or even advice. There is no privacy in the world for anyone that uses a computer or electronic filings and pleadings. The use of metadata is like being able to see someone naked. There is no privacy at all and confidentiality with clients can be revealed through skillful discovery and use of metadata in opposing counsel’s filings or pleadings.

But can it be used? Some states have ethics opinions that suggest that using metadata that was inadvertently sent is wrong and could be considered deception of some sort. Other states take different positions and in Pennsylvania there doesn’t seem to be any firm position yet on the subject matter.

The Pennsylvania Rules of Professional Conduct do not address the metadata issue. There is some reference to inadvertent disclosure and that is contained in Rule 4.4. In Rule 4.4(b), it is noted that if a lawyer receives a document related to representation of a client that the lawyer knows was inadvertently sent, the lawyer has to notify the other side. But there is no requirement that the lawyer not read it or send it back.

Comment 2 to that rule states that the duty to notify is the only requirement and whether additional steps should be taken is beyond the scope of the Rules of Professional Conduct. Comment 3 notes the decision to voluntarily not read it and return the document is within the judgment of the lawyer.

These rules are talking about documents inadvertently emailed or faxed. Metadata is the next step beyond, but the Rules of Professional Conduct in Pennsylvania don’t give any real guidance on this issue.

Obviously, finding things in a deceptive way could violate other rules, such as Rule 8.4(c) involving fraud or deceit, or Rule 8.4(d) involving conduct prejudicial to the administration of justice, but there is no court decision or ethics opinion going that far in most places.

It does seem unseemly for a lawyer to get documents and send them to the IT department to try to find out if there are any secrets through metadata that could be disclosed. It would be interesting to see if they do that for judicial opinions that are emailed. Although Pennsylvania Rules of Civility might suggest the lawyer shouldn’t do that, there are no teeth to these rules. They are just rules for guidance but which allow no enforcement.

I personally feel no firm should attempt to find metadata. If a lawyer came to visit another lawyer on an opposing case and one had to walk out of the office for a second, should the other then read the papers on the desk? That clearly would be improper. Seeking out metadata might fall under that category, but there is no decision saying that.

Further, is a lawyer incompetent if he or she doesn’t use metadata material if it helps, or is a lawyer acting deceitfully by finding and using this material? These questions haven’t been fully answered. But the bottom line, at least in my opinion, is that lawyers have to be honest. One wins cases on the merits, not with trickery or using computer skills to find things out on corrections or changes in documents. That shouldn’t happen and shouldn’t be allowed.

Just because some computer or technological skill allows someone a window into the other side’s privacy doesn’t mean it should be used. Doing so totally undermines the requirement of integrity necessary for all lawyers. 

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.