The state Supreme Court has adopted a new Code of Judicial Conduct that includes provisions on deterring nepotism by judges and prohibiting them from serving on commercial boards.
In an order Wednesday, the justices rescinded effective July 1 the existing provisions of the Code of Judicial Conduct, and adopted new Canons 1 through 4 of the Code of Judicial Conduct of 2014.
The new code comes as a result of recommendations made by a judicial ethics committee commissioned by the Supreme Court and chaired by Pennsylvania Superior Court Judge Anne E. Lazarus.
The committee, in collaboration with the Pennsylvania and Philadelphia bar associations, studied the 2007 American Bar Association Model Code of Judicial Conduct to form a basis for its recommendations. The committee worked for roughly two years in developing those recommendations.
In a press release, Chief Justice Ronald D. Castille said that public trust in the judiciary was a critical consideration in the development of the new code.
“For courts in Western democracies to effectively render independent and impartial decisions, the public’s confidence in the integrity of the judicial system and its judges is essential,” Castille said. “The Code of Judicial Conduct is designed to foster that confidence by assisting judges in their adherence to the highest judicial and personal conduct standards. It also establishes a basis for disciplinary agencies to regulate judges’ conduct.”
In an interview with The Legal, Castille said that the gradual updating process of the code came in tandem with the need to revamp the old code and the release of the 2007 ABA standards.
Thomas G. Wilkinson Jr. of Cozen O’Connor, who established the PBA’s Task Force on the Code of Judicial Conduct in 2012, said, “It was necessary to update the code because it had become substantially out-of-date and the vast majority of states had performed revised updates to their codes to conform to the ABA standard in most respects.”
Castille mentioned that the court reviewed proposals offered by the PBA and the judicial ethics committee side by side so the justices could evaluate the differences between each proposed recommendation.
Additionally, Castille said the members of the court went over the code of conduct line by line.
“It was quite an undertaking,” he said. “It was a lot of hard work for a long time. We looked at our own situation in Pennsylvania to modify parts of” the ABA code “as it applies in Pennsylvania.”
“It’s still a work in progress since it won’t take effect until July,” Castille added. “I imagine we’ll be getting a lot of public comment on some of the new provisions.”
Rule 2.13 of the code includes language about prohibiting judges from engaging in nepotism when making hiring decisions, including not hiring family members.
Abraham C. Reich of Fox Rothschild, co-chair of the PBA Task Force on the Code of Judicial Conduct, said that the nepotism provision represented a cultural shift in the judiciary.
“I thought that was a very bold move by the court and one that I think is very positive,” Reich said. He added that the shift, via the anti-nepotism rule, is one that will have a positive impact on the way the public views the courts over time.
Lynn Marks, executive director of Pennsylvanians for Modern Courts, said in an email to The Legal that the new specifications on nepotism are a welcome change.
“We have been troubled for years about nepotism in hiring within the judicial system. Judges must be seen as fair and impartial in all aspects of their jobs, and when family members are appointed to key positions, the public perception is one of favoritism,” she said. “It doesn’t matter if the family member who was hired was supremely capable for the job; there are just too many potential ethical pitfalls when relatives are hired by judges.”
Rule 2.13 of the code also details the manner in which judges should exercise impartiality: “A judge shall not appoint a lawyer to a position if the judge either knows that the lawyer, or the lawyer’s spouse or domestic partner, has contributed as a major donor within the prior two years to the judge’s election campaign, or learns of such a contribution by means of a timely motion by a party or other person properly interested in the matter.”
There are some exceptions, including: if the position is “substantially” uncompensated; the lawyer is selected from a list compiled without regard to the lawyer’s political contributions; and if there is no other lawyer willing to fill the position.
The initial PBA proposal, The Legal previously reported, prohibited a judge from appointing a lawyer to a position if the attorney or another person connected to the attorney contributed more than $2,500 to the judge’s election in the prior two years.
The code also details, in Rule 2.7, that judges should exercise discretion in determining whether “prevailing facts and circumstances could engender a substantial question in reasonable minds as to whether disqualification” should be required.
Castille noted that in terms of judicial duties, judges are encouraged to preemptively avoid circumstances that might lead to disqualification.
“You still should recuse yourself … in the appropriate situation,” Castille said. “There’s part of the rule, too, that says you should minimize the risk for disqualifying yourself … like watching who you take donations from.”
Additionally, Rule 2.11 says a judge must disqualify himself if he has a known bias or prejudice toward the lawyers or parties involved in a case, or the judge has a personal or business relationship with an involved party.
Rule 2.11 also calls for recusal if “the judge knows or learns that a party, a party’s lawyer, or the law firm of a party’s lawyer has made a direct or indirect contribution(s) to the judge’s campaign in an amount that would raise a reasonable concern about the fairness or impartiality of the judge’s consideration of a case involving the party, the party’s lawyer, or the law firm of the party’s lawyer.”
In terms of recusal relating to campaign contributions, Castille said that in the new code, no specific dollar amount is listed because the significance of the amount of a donation varies from county to county. A $10,000 campaign donation in Tioga County is different than one made in Philadelphia, he said.
The new code also provides details on the prohibition of judges serving as officers in commercial bodies.
Except in instances of businesses owned by a judge’s family or an entity primarily concerned with managing the judge’s resources, Rule 3.11 of the code explains that a judge “shall not serve as an officer, director, manager, general partner, advisor, or employee of any business entity.”
The rule further explains that a judge should not be engaged in financial dealings that involve the judge in “frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court on which the judge serves.”
William Fedullo, chancellor of the Philadelphia Bar Association, praised the new code and said that the association appreciated the work of the Supreme Court, the PBA and the Philadelphia Bar Association under his predecessor, Kathleen Wilkinson, for recognizing the need to update the previous code.
Lazarus said that while the justices did not accept all of the recommendations submitted by the PBA and her committee, she was pleased that the Supreme Court adopted the new code.
“I’m pleased we have black-letter law on what judges can and can’t do,” Lazarus said, adding that the new code “is more on the ground than the code we had before.”