Samuel C. Stretton.

The ex parte communication and the overstepping of the judicial role into an adversary role can't be permitted.

A judicial officer while sitting in his capacity in the juvenile division, sent a letter to the solicitor for Children & Youth Services of the county. The judge pointed out the juvenile, who is 17, is living in placement and is a good student. He cannot go home to his father or mother because of allegations of abuse by the mother and also allegations that he assaulted the mother. The judge is concerned about what happens to the child since the charges would not result in any real placement. The judge is urging Children & Youth Services to pursue a dependency petition. Can the judge do this?

The question is an interesting one and it presents a very interesting issue as to how far a judge can go in performing their judicial duties. As I read the question, it appears that the judge is very concerned for the juvenile. The judge doesn't want to release the juvenile since the juvenile has nowhere to go. The judge is urging Children & Youth Services to take some action to have the child declared dependent so the judge can place the juvenile, presumably with a foster home. Apparently, Children & Youth Services did not want to file the petition. The question is really presenting a pragmatic judge who has concerns for the child, but who is giving legal advice to agencies to take certain actions beyond what they consider they want to do.

The Code of Judicial Conduct sets forth what a judge can and cannot do and imposes limitations on judicial conduct. The first issue is who was copied on the judge's letter. This appears to be ex parte communication if the judge only wrote the CYS attorney. Even if the president judge had been copied, it still would be ex parte communication because the juvenile would have a lawyer and there is no indication that the juvenile's lawyer was copied in on this letter. Ex parte communications are precluded under the Code of Judicial Conduct under Rule 2.9.  Rule 2.9(a) precludes a judge from initiating or permitting ex parte communications outside the presence of the parties or their lawyers. There are exceptions for emergency purposes or when there is no procedural or tactical advantage for a party, etc. The exceptions do not appear to apply here, at least as the question is written. Under Rule 2.9(a)(3), a judge can consult with court staff and other court officials to assist a judge in their adjudicative responsibilities. But this letter is not directed to court officials, but is directed to a potential party. The letter is advocating a new cause of action.

Under Rule 2.9(c), a judge cannot investigate facts in a case independently and is only supposed to consider the evidence presented. Therefore, it appears that the judge's way of dealing with this issue was entirely wrong. At a minimum, if the judge thought a dependency petition should be filed then the judge should have initiated a meeting with all parties or participants for the entire picture to be discussed.

Further, by taking off the judicial hat and putting on a more quasi-prosecutorial or quasi-party hat, a judge could be in violation of Rule 1.2, promoting competency in the judiciary. The judge has to act at all times in a fashion that promotes the independence, integrity and impartiality of the judiciary and avoids impropriety and the appearance of impropriety. One could argue that the judge started to act as the solicitor for the CYS as opposed to the adjudicator and, therefore, crossed the line.

In essence, one could argue the judge is showing bias or having made up his mind on these issues. One could argue the judge is almost starting to practice law under Rule 3.10.

Having said the above, it also appears from the brief facts provided that the judge is trying in his own mind to do the right thing. The judge has a valid concern about what happens to the juvenile when his juvenile petition is resolved, particularly since it doesn't appear to be one that would require placement. The judge apparently is acutely aware the juvenile has no place to go. The judge is aware the juvenile is an excellent student and apparently is interested in carpentry and may well have a career in that area. The judge is urging CYS to seek a dependency petition. CYS is apparently refusing. Therefore, the judge wrote the solicitor for CYS.

Despite the good intentions of the judicial officer, a judge can't do things quite that arbitrarily. Sometimes, judges who have been on the bench a long time just cut to the chase. Though experienced judges know how to get things done, they still have to work within the limitations of their institution. The judge is not God and the judge is not someone who can suddenly resolve any and all problems. In this case, the judge is starting to play the juvenile's lawyer's role. If the juvenile's lawyer believed it was in the best interest of this child to have placement then that lawyer would be perfectly capable of filing the appropriate documents. Similarly, CYS would be perfectly capable of filing a dependency petition if they thought it appropriate. Perhaps because of the child's age, they do not think such a petition was appropriate. The point is that the judge only has the overview and not the details and the judge should not be looking at those factors. At the adjudicatory hearing or delinquency hearing, the judge has a right to raise questions about what to do with the child and where the child is going to go and adjudicate and sentence accordingly. This is best done in a courtroom where all participants with ample opportunity for all to respond and agree or disagree.

But to write a letter suggesting a way and asking why not is far beyond what a judge is really allowed to do. A judge certainly would never consider writing the district attorney and saying he disagrees with a plea offer and that this person is a danger to society and shouldn't be released. That would be highly inappropriate. On the other hand, at the sentencing hearing, the judge—after hearing all the evidence—can then reach a decision as to the length of the sentence and provide all parties opportunities to respond.

The problem is not the concern of the judge, it is how the judge is expressing the concern. The ex parte communication and the overstepping of the judicial role into an adversary role just can't be permitted.

As difficult as it is for judicial officers sometimes who are often very experienced, bright and knowledgeable people, they have to let the system play out. They have to let the litigants and the parties work out these matters. The judge has a right at hearings to raise issues of concern; however, the judge does not have the right to start to tell lawyers what to do and how to resolve these matters. Unfortunately, this conduct appears to violate various sections of the Code of Judicial Conduct as referenced and perhaps others. Good intentions are not a defense if the judge goes beyond the limitations of the judicial office and the Code of Judicial Conduct.

Lawyers are professional and nothing less would be expected of a professional than to be honest with their client.

I am a lawyer and I think I have hurt my client's case. There could perhaps be malpractice. I still may be able to resolve the case, but I am not sure. I don't think the client will ever know of my omission. Do I have any duty to tell the client?

The answer is yes. A lawyer always has the obligation and duty to keep a client informed at all pertinent times about matters of importance to the representation. Rule of Professional Conduct 1.4 is titled “Communication.” Under Rule 1.4(a)(3), a lawyer has to keep a client reasonably informed about the status of the case. Under Rule 1.4(b), a lawyer has to explain the case to the extend necessary for the client to make informed decisions regarding the representation. Comment 1 to Rule 1.4 notes there has to be reasonable communication so a client can effectively participate in the representation. It seems a lawyer has a duty to disclose any important facts that would affect the representation.

Many lawyers find this extremely difficult to tell the client they made a mistake or resist doing so figuring they can work it out and the client will never know. That may be true, but the 1.4 Rule obligation is to the client not for the lawyer sleeping better at night. The lawyer has to reveal anything that's important pertaining to the representation. If a lawyer's handling of the case has reduced the value of the case or limited what the lawyer can do, the client has to be told. The fact the client might never figure it out does not preclude or prevent the lawyer from fulfilling the lawyer's duty to the client under the Rules of Professional Conduct and also the lawyer's fiduciary duty to their clients. The most basic rule is to be honest and not to mislead a client. Rule 8.4(c) requires absolute honesty from a lawyer. There can be no fraud or misrepresentation or deceit. Similarly, under Rule 4.1, a lawyer can't in representation make a false statement of material fact or law to a third person or to their client.

Telling a client of a mistake can create great anxiety for the lawyer. But most lawyers find when they tell the client honestly and truthfully the issue it's a much better situation. Many clients will work with the lawyer to resolve the matter. Many clients do not wish to sue their lawyer and these issues can be resolved. If they can't, the lawyer's candor with the client will often help to resolve the matter short of litigation.

But the bottom line is that candor is required of all lawyers, and the duty to communicate regularly to clients to keep them advised of the status of their case under Rule 1.4 would require a lawyer to tell the client if the lawyer failed to do something which could have an effect on the case. Lawyers are professional and nothing less would be expected of a professional than to be honest to their client and fulfill their fiduciary duty to their client.

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.