Samuel C. Stretton.

If you disagree with decisions made by your corporation's president, before taking action, review Rule 1.13 first.

I represent a corporation and disagree with certain decisions of the president of the corporation. What obligation do I have to go to the corporation's board?

To answer this question, Rule of Professional Conduct 1.13 has to be reviewed. That rule indicates quite clearly that a lawyer who is employed or represents a corporation or organization represents it through its duly authorized constituents, i.e., the president or officers.

The answer to the question is found in Rule 1.13(b). It places a duty for a lawyer to proceed in the best interest of the corporation if the action of the president is in violation of the legal obligation to the corporation or a violation of the law, which could reasonably be imputed to the corporation, and is likely to result in substantial injury to the corporation.

If those conditions are met, the lawyer still has to decide how to proceed. The first step is to evaluate the seriousness of the violation and its consequences, the responsibility of the corporation, the motivation of the people involved and policies. Then the lawyer has several options. These options are to ask the president to reconsider under Rule 1.13(b)(1). The lawyer could also ask for a separate legal opinion to be presented to the appropriate authority. A third option, is for the lawyer to refer the matter to a higher authority in the organization, i.e., the board of directors. That should be done only if warranted by the seriousness of the issue.

As mentioned above, it is clear that only when the conduct at issue is likely to cause substantial harm to the corporation is there a duty for the lawyer to act. Further, the injury or problem must be substantial. Minor disputes or minor disagreements are not ones under Rule 1.13 that would trigger the right to take the above-referenced steps.

An example of when a lawyer has a duty to act is seen in Pennsylvania Bar Association's Informal Opinion 2016-013. That case involved a lawyer who represented a nonprofit corporation. Apparently, the lawyer discovered income was being not properly reported. Failure to do that could create a serious problem for the nonprofit corporation because it may affect its nonprofit status. Under those circumstances, there would be a mandatory duty to go to the corporation's board if the officers would not reconsider their refusal to deal with this issue.

Of course, what happens if the corporation still refuses to deal with the issue? That answer is found in Rule of Professional Conduct 1.13(c). That provision notes that if despite the best efforts of the lawyer, the highest authority refuses to act, the lawyer has the right to resign using the requirements of Rule 1.16. Rule 1.16 is the withdrawal of representation rule and one has to be careful not to cause prejudice to the client.

Rule 1.16 under Subsection B allows a lawyer to withdraw if the withdrawal can be done without adverse effect on the interest of the corporate client. Under Rule 1.16(d), the lawyer shall take steps that are reasonably practical to protect the corporation's interest and give reasonable notice.

It is important to note that the lawyer doesn't have to withdraw under Rule 1.13, but can and that is within the lawyer's discretion.

The question is often asked, can there be a noisy withdrawal, i.e., for the lawyer to go public. But there is nothing in Rule 1.13 that allows the lawyer to make complaints or do what is called a noisy withdrawal. This is an interesting contrast to the American Bar Association's Model Rule of Professional Conduct under Rule 1.13 that does allow what is called a noisy withdrawal.

But there are other times when a lawyer can reveal information, particularly if the lawyer's services are attacked. Under the Rule of Confidentiality, Rule 1.6(c), there are circumstances where there can be exceptions to the attorney-client privilege.

But to answer the question, the bottom line is that in representing a corporation, the lawyer must always remember who he represents. If those persons aren't doing what the lawyer thinks is right, the lawyer has to do the analysis under Rule 1.13(b) and there has to be substantial injury and harm as part of that analysis for the lawyer to go forward. Even then there are options before going to the board of directors. If there are serious problems, then the lawyer can resign, but it's not mandatory. But, the lawyer, unless it fits into one of the exceptions under Rule 1.6(c), cannot make these complaints public.

A judge cannot delegate their judicial duties no matter how routine it might be.

I was before a district judge and worked out a summary plea with the police officer. I advised the court clerk that we had a plea deal before the district judge when the judge was available. Instead, the clerk said that she had the authority to accept a plea for the judge. The officer amended the criminal complaint to reduce the plea to a summary and a minor fine was imposed and the clerk accepted the plea. Is this proper?

This is highly improper. If a judge is allowing the clerk to accept pleas at the counter that are negotiated, the judge is giving up his professional responsibility to adjudicate matters. A guilty plea is a judicial act and must be adjudicated by the judge. First, if a judge is taking pleas, they should do it in a courtroom with the judge having their robe on. There should be no trying of cases at the counter, whether it is a trial or just a negotiated plea. The dignity of the court requires the same. District judges are required to wear their robes in court and all pleas and trials should be held in the courtroom.

A judge cannot delegate their judicial duties no matter how routine it might be. There may be some reason a lawyer or lawyer does not want to accept a negotiated plea. But, clearly, the judge's clerks, no matter how experienced and knowledgeable they are, should not be handling pleas at the counter. This could be a serious violation of the Code of Judicial Conduct or the Judicial Code for a magistrate district judge. Similar types of conduct resulted in a major trial involving a district judge in 2017 and early 2018. All district judges who are indulging in allowing their staff to do their judicial duties, i.e., adjudication, ought to be put on notice that this would be treated as a very serious violation and could result in their removal from the bench and a finding of bringing disrepute. A finding of disrepute, unfortunately, has the consequence, if a judge is removed, of taking away their pension also under the Pennsylvania Constitution.

One can understand at times why a judge doesn't feel like taking negotiated pleas, but that's part of the job duties. If one doesn't want to be a judge, then they can resign and there will be many people running for the office. Under the rules governing magisterial district judges, under Rule 1.1, a judge has to comply with the law. That means doing their duties and not delegating their duties to nonjudicial officers. Under Rule 1.2, a judge has to give confidence in the judiciary and avoid the appearance of impropriety. There is nothing worse than a judge having someone else, who doesn't have their power or authority, to be adjudicating matters.

Under Rule 2.1, a magisterial district judge has to give precedence to their judicial duties. If a judge is too busy to adjudicate and has to send their clerks to do so, then there is a serious problem. A judge, under Rule 2.2, has to uphold the law and perform all duties of the judicial office fairly and impartially. Allowing clerks to do adjudications violates these rules. The judge has to give everyone the right to be heard under Rule 2.6 and it's hard to do that if the judge is having their clerk handle the matter.

Hopefully, the practice described in the question is not widespread because it would create serious problems. A judicial officer has to respect the position and the office. Allowing their clerks, no matter how trusted and excellent, to do adjudications and accept pleas is wrong, in violation of the Code of Magisterial Judges, and could result in substantial discipline.

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.