Samuel C. Stretton.

A judge's demeanor is definitely emphasized when it comes to discipline.

In terms of judicial discipline, is there any area that is emphasized and where enforcement is heightened?

Of course, it is hard to tell what is going on in the world of judicial discipline since many complaints that are received are dismissed or resolved privately. Unless one is representing a judicial officer, oftentimes one doesn't know. Only a few cases each year go before the Court of Judicial Discipline and even fewer go to the Pennsylvania Supreme Court.

An area that appears currently to be particularly emphasized is that of judicial demeanor and judicial statements from the bench. Sometimes this is put in the context of retaliation when the judge is upset with a staff member.

In a recent case, Judicial Conduct Board v. Tidd, there were numerous allegations—among other things—of poor demeanor. After a lengthy trial, everything was dismissed except for one count: yelling at secretaries in retaliation that resulted in a private reprimand, In re Tidd, 175 A.3d 1151 (Pa. Court Judicial Discipline, 2017), and 181 A.3d 14 (Pa. Court Judicial Discipline, 2018).

In another case, a judge was removed for bad demeanor and other issues in In re Merlo, 17 A.3d 869 (Pa. 2011). The Merlo case also contains severe warnings to judges who don't show up on time for judicial hearings, noting that would result in the finding of disrepute and presumably loss of pension and removal.

In the last several years, prosecution has become more nuanced in terms of complaints. Obviously, judges should not be yelling or raising their voices, or expressing anger from the bench. Clearly, no curse words or obscenities should ever come from a judicial mouth, at least, from the bench or in the judicial office. The days of a judge shouting from the bench, like one former Common Pleas judge did years ago to all litigants of “shut the F up” are over. Statements like that could cause severe disciplinary consequences.

A judge has to choose their words carefully when sentencing or making comments. Over generalizations or expressions of anger on behalf of the community by using perhaps demeaning language to a criminal defendant are not acceptable anymore and can result in judicial discipline.

Expressions of anger by judicial officers at friends or campaign workers who have betrayed them or worked for the other side are subject to potential judicial discipline. The judge doesn't have the luxury of being able to yell at their staff members anymore for stupid mistakes. Perhaps no one should ever yell at their staff members, but even tough criticism often times brings the matter to the attention of the Judicial Conduct Board.

The days of a judge yelling or raising their voice, or expressing anger are over. That kind of conduct can result in a complaint with the Judicial Conduct Board, and depending on the number of allegations, perhaps a trip to the Court of Judicial Discipline.

The code of Judicial Conduct in Pennsylvania under Rule 2.2 requires a judge to perform duties fairly and impartially. Rule 2.3 precludes bias, prejudice, or harassment. Under Rule 2.6, a judge has to allow every person in the proceeding the right to be heard. Under Rule 2.8, the demeanor rule, the judge has to require order and decorum in all proceedings. Under Rules of Judicial Conduct 2.8b, the judge has to be “patient, dignified and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials and other individuals with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge's control”.

In this modern world, most judges have too many hearings scheduled for any given day. Just walk into a district judge's office when they have their criminal day for preliminary hearings, or their summary trial days, or their landlord/tenant days, or their school truancy days. The court house is often overflowing with clients. A judge has to go from case to case and handle many, many cases in one day. Common Pleas judges are subject to the same manner of handling greatly excessive caseloads. Like everyone else in the world, judges get tired, hungry, annoyed, etc. There has to be a little bit more leeway. Sometimes horrible crimes have been committed, and at sentencing judges have the responsibility to express the anger of a community for those heinous crimes. Yet, too tough or strong-worded anger can now be the subject of judicial discipline.

Demeanor is an important issue and treating everyone with respect is important. Every judge should strive for that. Perhaps the pendulum has swung a little too far when statements of a judge are taken out of context, and taken out of the context of a long day of hearings, highlighted, and prosecuted.

Every judicial officer should be aware that demeanor is something that the Judicial Conduct Board is very interested in and will vigorously investigate and prosecute if necessary. The requirement is for the judge to run the courtroom with decorum, keep an even tone, make decisions and avoid all of the back and forth and explanations that sometimes get judicial officers in trouble.

Communication between inmates and their attorneys has been undermined.

I am an inmate in the Pennsylvania state prison system. I am not getting letters from my lawyer. When I do, they have already been opened. When I send things to a lawyer, I do not know if he gets them and I am afraid they are being reviewed. Is there anything that can be done?

The current situation in the Pennsylvania state prison system has impacted the ability of lawyers to be able to communicate with their clients. It has also impacted the ability of people to send items of value to inmates such as books, papers, magazines and other things that might benefit them and help them reform. The prisons have engaged in an extreme overreaction to issues of drug smuggling in the prison. Unfortunately, the public has not been advised as to the extent and scope of this alleged drug smuggling. But the gross overreaction by the prison system and the public authorities by disallowing books, papers, legal mail, etc., has no justification whatsoever. Lawyers who have been able to communicate with their clients over the years have now been frustrated and prevented from present communication. Sometimes it seems that there must be a training course for prison guards and prison supervisors called Inmate Cruelty 101. It doesn't matter what prison an inmate exists in because there always seems to be issues where inmates are mistreated, inmates are bullied, guards don't protect certain inmates, guards leak information about inmates, grievances are not properly submitted, etc. If an inmate has the audacity to object, they are oftentimes retaliated against or mistreated, or subject to alleged disciplinary violations that are conjured up leading to a kangaroo court type of hearing where there is no representation and the inmates are often precluded from presenting any evidence. They are then sentenced to a long period of time in the RHU which is known as “the hole”.

Now, instead of a rational method to deal with alleged drug smuggling (apparently a longstanding problem), the prison has taken the most extreme measures necessary with absolutely no regard for how it affects attorney/client relationships, a client's case or cases and the morale of inmates. Prisons do have a purpose of rehabilitation besides punishment, but these present steps clearly undermine any type of rehabilitation. To prevent books from being sent in from book manufacturers and outside sources where the books are prepackaged and not even touched by anyone but the book sellers is ridiculous. Every person knows stories of inmates who started to read in prison and the reading helped to change and reform their lives. Now, apparently in Pennsylvania, reading will be limited to a few books that the prison guards and administrators deem appropriate. That is not a recipe for good literature, or reform or change.

The focus of this article is not what is going on with the Pennsylvania state prison system, but how it affects the attorney/client relationship. Lawyers are quite reasonably leery now to send confidential material to clients even if they use their control number. Likewise, clients are certainly very leery to send documents back to their lawyers. In a perfect world, lawyers would constantly travel to the prisons and visit their clients, but this isn't a perfect world. Many lawyers are court-appointed with limited funds. Communication by mail is a good way of keeping in touch and advising a client, but now that avenue has been closed. There are not too many other avenues. When an attorney receives a call from an inmate, assuming the lawyer is in the office at the time of the call, the calls are monitored. Only on the rare occasion when a client can get to their social worker's office to place a call are the calls unmonitored and not recorded. Tape recordings of inmates speaking with their attorneys are often subpoenaed by the prosecutor, at least, in serious cases.

By restricting inmate mail, and looking at inmate mail, and at times looking at an attorney's mail, the most reliable form of communication has now been undermined with many attorneys being reluctant to do so anymore. Furthermore, inmate mail now has to go through Florida. This writer has received my letters written to inmate clients returned for no good reason.

The prison system does not have the option to undermine attorney/client relationships as their solution to other prison problems.

Clients should be able to communicate with their lawyers. If they are in prison, there has to be some restrictions, but the mail system should not be interfered with in any way, shape or form unless some lawyer actually acts badly, or does something that would be detrimental to the prison.

Perhaps someday the prison system will finally hire leaders who can think of better ways to resolve problems as opposed to taking the most extreme efforts that end up undermining and punishing people who have nothing to do with the misconduct, and greatly undermining the attorney/client relationship in the process.

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.