This column discusses the duties of a general counsel to a state Supreme Court. Although the Pennsylvania Supreme Court does not have a general counsel, it recently created the position of counsel to the court which is similar. Several states including Texas, Missouri, Michigan and Rhode Island have a formal position of general counsel to the Supreme Court, which has advantages that I will discuss below.

The general counsel, in the states listed above, is more than a lawyer employed to answer legal questions propounded by the justices. The duties of the general counsel in the states indicated above have the following responsibilities in common:

  • The general counsel is the personal lawyer to the justices for official administrative matters of the court, not involving a case or controversy.
  • The general counsel may respond, orally or in writing, to one or all members of the court.
  • There exists an attorney-client privilege between the general counsel and the justices. The advice sought by and given to the court members is confidential and is not made public.
  • The general counsel does not file an appearance in litigation when the court is a party; however, the general counsel may offer advice to the court in selecting outside counsel to represent the court. The general counsel may also give advice to the outside counsel representing the court.
  • The general counsel may bring to the attention of the justices, matters of administration, personnel, or potential litigation that may eventually involve the Supreme Court, the Commonwealth Court or the Common Pleas Court of the individual counties.
  • The general counsel may advise individual justices regarding their own conduct in running for election in those states where the justices must run for election or retention.
  • The general counsel may advise the court regarding public statements to be made by the court regarding matters before the court or matters between the court, the Legislature, the attorney general or the governor.

Individual justices seeking the advice of counsel is not a new issue. As a historical fact, justices of state Supreme Courts have often engaged private counsel for official matters not involving a case or conflict.

Many Supreme Courts employ a person designated as counsel to respond to questions from the justices. This is the case in Pennsylvania. Chief Justice Thomas Saylor said, “Our court recently created the position of full-time counsel to the court, following the lead of other jurisdictions. Our most immediate interest was to improve oversight of the various Supreme Court boards. We also recognized that the Supreme Court has needs and interests that are distinct from those served by counsel to the Administrative Office of Pennsylvania Courts.” Former Superior Court Judge Geoff Moulton was appointed as counsel to the court in early 2018. Saylor noted that Moulton's contributions are expanding. This has been the experience of the general counsel in the other states.