Samuel C. Stretton ()
The judicial discipline system
should be reconsidered.
After the Bruno decision, where does professional judicial discipline stand in Pennsylvania?
The standing of professional judicial discipline in Pennsylvania is not on strong footing after the decision in In re Magisterial District Judge Mark A. Bruno, ____ A.3d ____, 84 MM 2013 (October 1, 2014), a case in which I represented the judge.
In 1993, there were major amendments to the Pennsylvania Constitution under Article 5. Those amendments essentially abolished the old Judicial Inquiry and Review Board. Under that system, the Pennsylvania Supreme Court had de novo review in judicial discipline. The 1993 amendments of Article 5, Section 18, created the Judicial Conduct Board and the Court of Judicial Discipline. Under these constitutional changes, the Supreme Court had no role in professional judicial discipline, except for a limited appellate review, which essentially involved whether there was legal error or whether the sanction was illegal.
Despite what appeared to be the clear mandate of the voters and citizens of Pennsylvania in the 1993 constitutional amendment, the Supreme Court, leading up to the Bruno decision, continued to act on judicial disciplinary matters, particularly on interim suspension orders. The aforementioned Bruno case now essentially gives the Supreme Court parallel jurisdiction on judicial disciplinary matters with the Court of Judicial Discipline. The court has maintained full jurisdiction to hear judicial disciplinary matters, although the opinion suggests that power will ultimately be only exercised in extraordinary circumstances, whatever that means.
The Supreme Court’s rationale for apparently disregarding the clear constitutional language is that the court has general supervisory powers over all courts in Pennsylvania (see Article 5, Sections 1 and 10) and, further, the court claimed its historical King’s Bench power supported this conclusion. The Bruno decision appears to have broadened and enlarged the King’s Bench remedy.
One could perhaps understand that the supervisory powers might allow the court to do an interim suspension immediately to protect the public and the profession. But then the court should immediately defer to the Court of Judicial Discipline and no longer be involved. One might also understand the supervisory powers might allow the court a broader appellate review of Court of Judicial Discipline decisions, since the current standard is very limited. But the Supreme Court chose not to use its discretion in limiting these powers. The court essentially indicated it still maintains all its powers to be involved in the Pennsylvania judicial system disciplinary processes at the discretion of the court despite the constitutional language to the contrary.
That decision is of grave concern because Bruno seems to totally ignore the Pennsylvania Constitution’s changes. The court goes through 88 pages of rationale and a number of concurring pages of rationale to justify what it is doing. But this decision appears to be a bad decision in terms of upholding and enforcing clear language in the constitution. It is a worrisome decision because one wonders why clear constitutional language placing judicial discipline in the hands of the Judicial Conduct Board and the Court of Judicial Discipline shouldn’t be given its full weight and authority. The voters ultimately decided these constitutional amendments, which removed judicial discipline from the Supreme Court.
Whether the court should remain supreme in judicial discipline is an interesting argument. Perhaps it should, but the problem is the constitution now says otherwise, yet the Supreme Court has decided to ignore the constitutional language. Of further concern, in terms of judicial independence, is that the Supreme Court can apparently now jump into any area of professional judicial discipline when it chooses to do so without warning or advance notice on any rules or procedure.
A classic example is when the indictment against Judge Joseph Waters came out, two other judges were supposedly suspended, one of whom I represent. The problem was they weren’t suspended. Apparently a call was made from the Supreme Court to administrative judges to place them on administrative hold and for them not to do judicial duties. This was all with pay. But this action is worrisome in terms of judicial independence, since such actions can be taken without any standards or due process. Are judges going to have to look over their shoulders? There are rules and regulations for the Court of Judicial Discipline and the Judicial Conduct Board.
Further, the Supreme Court, if it chooses to adjudicate judicial disciplinary matters, has no rules or standards. There are no discovery requirements. This stands in stark contrast to the Judicial Conduct Board and the Court of Judicial Discipline, which have rules and regulations and procedures and deadlines.
Further, what happens if there are conflicting orders, if the Judicial Conduct Board decides one thing and the Supreme Court decides another? That creates a serious problem, particularly because of the way the constitution is written. The Supreme Court’s answer to a conflict is extremely simplistic: We are supreme and, therefore, our order is the only one.
The Bruno opinion is also compounded by the continuing dispute between Justice Seamus McCaffery and Chief Justice Ronald D. Castille. The delay in the handling of the judicial corruption in Luzerne County in 2008 is discussed by both in the opinion. Personal disputes have no place in judicial opinions.
The problem with the Bruno case is it seems to leave the whole judicial system open to further constitutional changes. The voters really meant what they said in 1993 because of the Justice Rolf Larsen scandal. It would not be surprising to see constitutional amendments remove even the King’s Bench authority and perhaps some of the supervisory powers of the Supreme Court so the citizens can feel that the judicial disciplinary system is not in danger of being taken over again by the Supreme Court. Hopefully, that doesn’t happen. There are very good and strong reasons for keeping the Supreme Court supreme. The independence of both the bench and the bar depend on the Supreme Court having strong supervisory powers. On the other hand, the court did not have to take back its full power to discipline judges on a parallel or concurrent basis in total disregard of the language in the constitution.
Judicial independence takes a beating because one never knows when the Supreme Court is going to exercise its extraordinary powers to take action against a judge, such as the two judges who received a telephone call because they were referenced in Waters’ case.
The court hinted in the Bruno decision that its ultimate involvement will evolve as future cases appear. That is not very reassuring in terms of those who are handling these cases and judges who are potentially the subject of judicial discipline. There is a difference between supervisory powers and interfering with a judicial disciplinary system that is working according to clear constitutional language. Unfortunately, this is where professional judicial discipline seems to be standing in Pennsylvania. But there is always hope and there are Supreme Court elections coming up in 2015. Perhaps the years of 2016 and 2017 might result in the reevaluation of some of the impact of the aforementioned Bruno case.
Lawyers cannot do end-runs to
communicate with an opponent’s client.
Is it ethical for a law firm to ask a driver who takes a plaintiff to a court-ordered medical examination what the plaintiff said during the drive?
The answer is clearly no. Rule of Professional Conduct 4.2 clearly prohibits communication with a person represented by counsel, particularly about the subject matter of the representation. In this case, there is no question there is litigation ongoing. There is no question that the defense firm clearly knew the plaintiff was represented by counsel.
There is no right of a lawyer to hire someone to do what the lawyer can’t do. In other words, a lawyer who can’t speak to an opposing party can’t hire an investigator to do so.
In this case, the defense firm was ordered to pay for the driver to take the person to the medical exam. Having paid for that person, the defense firm then questioned that person extensively about what the client said. But the firm cannot hire a professional driver and then question that driver about the substance of conversations or observations when there was no plaintiffs counsel present. It would be a complete disregard for Rule 4.2 and would make the rule meaningless.
Comment 3 to Rule 4.2 is very clear that Rule 4.2 applies even if the represented person initiates or consents to the communication. The lawyer must immediately terminate the communication with a person if the lawyer learns the person cannot be communicated with under Rule 4.2. That rule would also apply to the agents of the lawyer. Comment 6 to Rule 4.2 indicates that if a lawyer is uncertain whether he or she can communicate, then the lawyer should seek a court order. Under the question as presented, no such court order was sought.
Rule 8.4 is entitled “Misconduct” and prohibits lawyers from engaging in conduct prejudicial to the administration of justice or conduct involving deceit, dishonesty and misrepresentation. Comment 1 to that rule clearly states the following:
“Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer’s behalf.”
That comment says it all. In this case, the agent was the driver who was paid by the defense firm. The lawyers chose to take advantage of the long drive to ascertain the communications when a plaintiffs lawyer was not there.
In this modern world of civil litigation, lawyers have to step back and remember their role. It should not be the job of a lawyer to look to cut corners or to try to find a way to get away with what is clearly unethical conduct, such as communicating with someone else’s client. That is just not the way law is to be practiced.
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.