Samuel C. Stretton.

Judicial independence is at risk in these modern times.

I notice a number of articles criticizing judges and their decisions. I've also noticed investigations concerning comments by judges. I am concerned about judicial independence. Should I be?

Being a judge in this modern bureaucratic world is not what it used to be. Judicial discipline is much more aggressive than it was 30 or 40 years ago. With the internet, it's easier to make complaints against judges. And the Judicial Conduct Board's office is flooded with complaints. In fact, over the last several years they had to add additional lawyers.

District judges similarly have problems. Usually there are problems dealing with a court administrator or deputy court administrator. The staff has loyalty to the court administrator as opposed to the district judge since the court administrator, not the Judge, has the power to hire and fire. It goes down to the bottom line that the staff is hired by the court administrator/president judge and not the district judges as it often once was. The staff feels empowered over a district judge by complaining to the court administrator. Many complaints and problems arise out of this conflict.

When this happens, the judge starts to look over his shoulders. When judges start to do that, the concept of judicial independence becomes seriously eroded. If a judge has to be worried about complaints being made or staff not being loyal, at times it's easier just to go with the flow and make a decision even though the judge might feel the decision should have been to the contrary. Obviously, that is not acceptable and if it's happening, it seriously undermines the independence of the judiciary.

How can things be put back in perspective? The first area is the role of a president judge in a particular county or the administrative judge, depending on the size of the county. President judges have some supervisory responsibility over district judges and exercise that through their court administrators or minor judiciary administrator or deputy administrator. The problem is that a president judge has to be careful not to second guess a district judge. For instance, if there are complaints about a judge finding too many people not guilty of if there are complaints that the police or other people are disagreeing on the bail that's being set by a district judge, that is not an area where a president judge should be involved in or telling the judge to do something different. Whether it's a district judge or even a Common Pleas judge, these are judicial decisions that are untouchable except for the normal appeal process. If the district judge makes a decision on bail that is not liked by the district attorney, then an appeal is filed to the Court of Common Pleas. If a judge is making bad rulings, there are appeals that can be filed. If there is a question of unethical conduct then complaints can be made to the Judicial Conduct Board.

The president judge has to be very careful in terms of interfering versus supervising. Perhaps a good way of avoiding these problems is to have regular meetings. Many district judges complain they can't get meetings with the president judge or the president judge doesn't meet with the district judges except maybe once a year or once every other year. If there were regular monthly meetings, things can be discussed in a reasonable setting where issues of concern can be aired.  For instance, one of the worse things a president judge can do is to order the court administrator to review a district judge's decisions or a Common Pleas judge's decision whether it's on bail or on the merits. That is a direct interference with the judicial independence of that district judge. That's just not acceptable. If it is acceptable, then it's going to be guaranteed that judges aren't going to make the decisions they think are correct but will back off and do what the people in authority want. That's not what you want for a judge, particularly a district judge.

Some of the complaints that are made against judges also have to be reviewed in terms of effect on judicial independence. The Judicial Conduct Board in recent years has gotten much stricter and perhaps a little more punitive than it was maybe the first 10 or 15 years after its creation in 1993 by Constitutional Amendments. For instance, language used by a judge is now being placed under a microscope. There was a case where a complaint was filed by a Supreme Court justice against a Common Pleas judge during comments made when sentencing someone in a very horrific shooting type of case where the defendant showed absolutely no remorse or mercy and even laughed at the victim, who was paralyzed. The Judge, obviously upset at the defendant's conduct, had used certain words that the person wasn't acting like a human being and was acting like a monster, things of that nature. But, in context, that language seemed appropriate. After all, a judicial officer at times is allowed to reflect the anger or disgust of a community in dealing with certain kinds of criminal conduct. As any criminal defense lawyer knows, sometimes there are clients that the only way one can truly get through to them is to use some rather harsh language. What is wrong with a judge being a little tougher in his language for someone who is making a mockery of this system and laughing about everything? Yet, that became the subject of a judicial complaint and has a serious effect on the future of judicial independence.

Perhaps I have tried too many cases, but judges should be given a great deal of leeway in what they say and do in their courtrooms. There are times, particularly in courtrooms where there are many, many cases listed, that the judge is going to be annoyed and that has to be taken into consideration. But, the fact that the judge is the subject of complaints clearly affects the way a judge thinks and acts in the future to undermine to an extent the needed judicial independence.

A judge always has to have decorum and have patience in a courtroom. But, the Judicial Conduct Board and president judges and really court administrators and ultimately, the Pennsylvania Supreme Court, have to be very careful in approaching some of these judicial discipline matters. The goal is to have an honest judiciary with knowledgeable and experienced judicial officers. But, the goal also has to be not to interfere with judicial independence in these matters and to not cause a judge to have to look over their shoulders or rethink everything they say and do in a particular courtroom setting.

Clearly, judicial education, which is now required, is a good thing. On the other hand, maybe in judicial education besides having the Judicial Conduct Board speaking, it might be worthwhile to have one or two experienced respondent's lawyers speak on the subject and highlight the concerns.

There has to be more support for judicial officers within the judiciary. The president judge and administrative judges have to back up and support judicial officers and not leave them hanging if someone makes a complaint or doesn't like the decisions they've made. A classic example is when a judge releases someone on bail or allows some sort of visitation and then someone gets hurt by the person on bail or by the father or mother who had the unsupervised visitation. The public anger then falls unfairly on the judge. The judge isn't responsible for bad acts of individuals. The judge has to make decisions based on the evidence he has at the time. No judge can predict the future. The goal is to have families reunited or keeping parents with their children. In criminal court, the goal is to release people as long as they are not a danger or threat to society. Thousands of people are released each week in courts. There may be one or two who act badly. Then when that happens, everyone blames the judge and again this affects judicial independence. But, if there was a strong statement by president judges or court administrators backing the judge under those circumstances, the threat to judicial independence could be mitigated.

Another concern is the Judicial Conduct Board investigating judges when their cases are reversed on appeal. Every judge knows that they can be reversed on appeal. As long as their decisions are done fairly and honestly, the judge should not have to worry about a reversal. If the appellate courts disagree, it's a learning experience for the judge. But, it should not be a basis for a judicial complaint. If that does become the basis for a judicial complaint, then no judge is going to exercise independent judgment or push the envelope.

Judicial independence is starting to be compromised and undermined. Judges have statewide organizations both for the minor judiciary and for the Common Pleas. These organizations have to step up now and start to speak out and address these issues.

In this modern world with overwhelming communication and ever present social media, judicial independence is truly at risk. Everything is under a microscope. Every person's complaint is magnified 500 times. Judges don't get the support from their county and complaints are then processed through the Judicial Conduct Board. Complaints through the Judicial Conduct Board are very burdensome to judges and create a great deal of distress and fear. This is not to say the Judicial Conduct Board is not doing a good job. The Judicial Conduct Board has done an excellent job. But, this modern world has created complaints that in the past would have never gone anywhere or would have never been given any real merit. One of the biggest problems of the 21^st century is going to be judicial independence. This is a concern for many lawyers who practice regularly in the courts and must start to be addressed.

It's best not to solicit for clients online.

I know that one can't solicit a client directly under Rule of Professional Conduct 7.3. But when I go on the internet, I interact with people. If they identify a legal problem, can I then state I am a lawyer and ask the party to contact me for representation?

The issue is an interesting one and, obviously, the Rules of Professional Conduct have not caught up with the rapid advance of modern technology. In fact, the rapid advance of modern technology, at least in some people's minds, has undermined the professional nature of practicing law. But that might just be an old lawyer howling in the wind saying that.

The advertising rules are set forth in the 700 Level of the Rules of Professional Conduct. Rule 7.3 is the rule that bars direct solicitation. That rule in pertinent parts reads as follows: “A lawyer should not solicit in-person or by intermediary professional employment from a person with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain … the term solicit includes contacts in person, by telephone, or by real time electronic communication, but subject to requirements of Rule 7.1 and Rule 7.3, does not include written communication which may include targeted, direct mail advertisements.”

Therefore, that rule allows targeted mail, but still prohibits in-person solicitation, including real time electronic communication.

Rule 7.3(b) states when a lawyer cannot use written or targeted mailing. The lawyer can't do that if the person doesn't want to be contacted and makes that known or has some physical or emotional or mental state issues that would preclude reasonable judgment or if the communication involves coercion, duress, or harassment.

Comments 1, 2, and 3 talk about real time electronic or Internet communication. Comment 2 notes as follows: “Here is a potential for abuse when a solicitation involves direct in-person, live telephone, or real time electronic contact by a lawyer with someone known to need legal services. These forms of contact subject a person to the private importuning of a trained advocate, in a direct interpersonal encounter. The person, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives …”

Comment 3 notes as follows: “There is potential for abuse inherent in direct in-person, live telephone, or real time electronic solicitation justifies its prohibition, particularly since lawyers have alternative means of conveying necessary information to those who maybe in need of legal services.”

Therefore, it would appear that interacting with persons in real time on the internet or in a chat room and then discussing a legal problem and suggesting the person hire the lawyer would be prohibited by Rule 7.3.

What is of interest is that there is a Philadelphia Bar Association's Professional Guidance Opinion 2010-6 that seems to allow a lawyer using some form of social media for solicitation.  The opinion is in the context of interacting with individuals on social media where legal issues arise. The committee at the time felt that the client had the ability on social media to ignore the lawyer or end the communication. Therefore, the committee did not find a Rule 7.3 violation.

Despite that opinion, the better practice is not to have real time in-person solicitations on the internet and despite that opinion; it appears such conduct would be prohibited by the Rules of Professional Conduct.

In conclusion, therefore, using whatever form of rapid internet real-time communication or by-phone communication with individuals is still prohibited. This is treated the same as if a lawyer walked in the hospital room and signed up a client. This prohibition is a good thing since law is still a profession and hopefully will maintain professional status.

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, Pennsylvania, 19381.