One should be very cautious and hesitant in objecting to a judge who is asking questions.

I am a young attorney and during the trial, the judge was asking a number of questions that made me think the judge was advocating one position over the other. Can I object to the judge's conduct?

Samuel C. Stretton.

Obviously, one should be very cautious and hesitant in objecting to a judge who is asking questions. On the other hand, one has to protect the record and properly represent their client. If a judge's question is wrong and could result inadmissible testimony or if the judge is overstepping his or her bounds and acting in a more partisan fashion, then the lawyer has to object. If one doesn't object, then the issue will most likely be waived. There is some case law where the appellate courts will excuse a lawyer from not objecting to a judge overstepping. But it's rare and the rationale for excusing is that courts understand lawyers are very hesitant to anger a judge by objecting.

But there are times when a judicial officer for whatever reason is just too involved in the trial. Many judges were very experienced lawyers. Some are not. Judges who are experienced trial lawyers at times get frustrated if the level of advocacy in the courtroom is not as good as the judge would expect. Sometimes the judge attempts to fill in the blanks by his or her questions.

The problem is a judge can't really do that. A judge can clarify issues for a jury, but the judge cannot start to take over the position of the plaintiff or defense counsel or the prosecuting counsel or the criminal defense counsel. As frustrating as it may be, a judge has to recognize the limitations of their role. A judge's role is to conduct a full and complete and fair trial. But the judge's role also is to let the lawyers try their case within the confines of the law. The judge's role is also to recognize the limitations of the judge's role. Also, judges have to recognize, particularly in jury trials, that a judge's questions are given great weight by a jury and can register with a jury that the judge perhaps doesn't think a witness is telling the truth or not. That would be a terrible mistake for the judge to leave that impression. Of course, there is always the instructions to the jury where the judge makes it clear that their involvement is not meant to in any way suggest they have a position. The experienced jury trial lawyer knows that instruction doesn't go too far with a jury. Jurors hang on judicial words, facial expressions and comments.

At times, a lawyer just has to stand up and say “I object.” That should be done in a respectful fashion. The next thing the lawyer should do is ask if he or she can see the judge at sidebar. One does not want to get into an argument with a judge before a jury. In a nonjury trial, it gets a little more dicey. Some judges in nonjury trials want to develop the record so they can make a fair decision. Again, the judge has to recognize the limitations of their role. It's extremely upsetting when a lawyer sets a case up and the prosecution doesn't do something and suddenly the judge is asking all the questions to fill in the blanks for the prosecutor or the defendant or vice versa.

So, it is an obligation to stand up and respectfully object and presumably make the record at sidebar. Having said that, it is difficult because some judges just are very active in a courtroom. That may get them in trouble some day with the Judicial Conduct Board, but during the trial the lawyer's concern is a fair trial and to present his or her case in the best possible fashion.

As a result, the lawyer should always be respectful, but has a duty and obligation at times to object to questions by a judge. Sometimes this is even more pronounced in administrative hearings.

Particularly hearings involving the Disciplinary Board and their hearing committees involve hyperactive hearing committees. For some reason, modern hearing committees feel compelled to really jump into these attorney disciplinary trials. Sometimes the members of the panel will ask questions far longer than the litigants do. They will in effect try the case. One hearing committee member said that it was his duty to do so. He said he did not want the Supreme Court justices to review a record and ask why certain questions weren't asked. That, of course, is a complete misunderstanding of one's role as a hearing committee member. Hearing committee members are quasi-judges. They themselves aren't supposed to go in and delve into a case. There is some right to ask some questions for clarification, but they shouldn't be asking questions in detail. One hearing committee member was cross-examining a witness and suggesting the witness had lied. That is just not appropriate.

Whether it's a judge or hearing committee member, the adjudicator must think of the biased impression they give when they exceed their role and act like litigants. The impression left with the lawyers and their clients and their client's family and friends and perhaps others in the courtroom is that the judge isn't being fair. Whether that's true or not, the impression is what counts and the impression is what is lasting.

Many judges complained about the lack of good trial skills of lawyers. Although there are many fine trial lawyers on the whole, only about one-tenth of 1% of lawyers go into court regularly. It's not necessarily the lawyer's fault because there is just not as many opportunities to try cases as there were about 40 or 50 years ago when this writer started practicing. But the lack of trial experience is often times very obvious and experienced trial judges who were good trial lawyers have to learn to restrain themselves to try to make up the difference. There is nothing more offensive to litigants in a courtroom when the judge on their own is making objections without objections from the other parties. That should not be occurring. If the judge thinks a lawyer is going to put improper material, then the judge stops the trial and goes to sidebar and talks to the lawyer privately. But a judge should not be objecting, and doing the opposing lawyer's job for them.

The bottom line is our system of justice in litigation, whether it's in the courts or before licensing boards or other administrative boards, depends on all parties playing their appropriate role. That includes lawyers being well prepared, lawyers knowing how to try cases, lawyers having made the effort to learn how to try cases, respectful treatment of one's adversary with courtesy, and a judicial officer or hearing committee member or an administrative judge who understands the limitations of the judicial role. Trials are not just calling balls and strikes, as some judges like to say. Trials involve fair presentation of evidence, logical questions, decorum and courtesy. Litigants press their points hard, but do so in a respectful and proper fashion. Trials should not be yelling or screaming or raising of voices and things of that nature. Normally, a judicial officer or a hearing committee officer must respect the limitations of their role. They have to allow lawyers to try the case within reason. Although it's unfortunate when a lawyer doesn't know how to try a case, a judicial officer can't change that during the particular trial. The judicial officer can't try to make up the difference.

Sometimes this is a difficult and hard role for very experienced judicial officers, and also sometimes for very inexperienced judicial officers. But the limitations are clear. The good motive of a judge to try to clarify the record or make up evidence that wasn't corrected by one of the counsel is just wrong. It's one thing to clarify a name or a date or something.  It's another thing to bring out evidence that the other side hasn't, which is harmful to the opposing side. A judge can't do that.

Therefore, to answer the question, one does at times have to stand up and object respectfully to a judicial officer's involvement. If the judicial officer's involvement is extreme then, of course, there are always appeals, but everybody knows it is difficult to get an appellate court to reverse on overstepping by a judicial officer. Oftentimes the appellate courts will do triple somersaults to try to justify a judicial officer's involvement that went too far. As always, there is also the Judicial Conduct Board. If a judge is truly interfering with a trial, that's always a basis to consider, but it is very difficult to prove.

The system really depends on goodwill and understanding of all the participants in the trial of their role. Also, it requires persons to stand up and object, whether it's opposing counsel or a judicial officer or anything else is being done improperly. That is the role of a professional and every trial lawyer has to have the courage to stand up and object when a judicial officer is overstepping their bounds.

A lawyer should be the lawyer and not the businessman trying to make money off a client.

May I purchase an interest in my client's case because I think the case has value and the monies would help the client?

The question is a frustrating one since a lawyer should be the lawyer and not the businessman trying to make money off a client. How can a client have good independent representation if the lawyer is a working at trying to obtain an interest in the client's litigation?

Rule 1.8(i) of the Rules of Professional Conduct is fairly clear. A lawyer shall not acquire a proprietary interest in a cause of action that the lawyer is conducting for a client. There are two exceptions. The first exception is a lawyer can acquire a lien authorized by law to secure a lawyer's fee or expenses. Those would be such as attorney or retaining liens. The second is a lawyer is allowed to have a contingent fee agreement in a civil case where the fee is to come out of a percentage of the recovery. Obviously, a contingent fee vehicle is the great vehicle that allows people to bring litigation. Before contingent fees were utilized, only the wealthy could afford lawyers to bring cases. The contingent fee agreement does create a conflict of interest between the lawyer and the client, but it is an acceptable conflict, assuming the contingent fee is reasonable and not excessive. Excessive fees, obviously, are prohibited by Rule 1.5.

The comment to Rule 1.8 on acquiring an interest is Comment 16. Comment 16 to Rule 1.8 states the traditional rule that lawyers are prohibited from acquiring proprietary interest in litigation where they are representing the client. Older lawyers remember that was prohibited in common law by champerty and maintenance lawsuits. The whole purpose according to Comment 16 in not allowing this is “to avoid giving the lawyer too great an interest in the representation.” One of the reasons that the comment sets forth this type of prohibition is because it would create too much of a conflict between the lawyer and the client. Further, it would make it difficult for a client to discharge an attorney and also might cause a lawyer not to give independent judgment about a settlement because the lawyer might want to protect their interest. Also, if one does acquire a proprietary interest, they must follow Rule 1.8(a). That rule is very strict. If a lawyer is getting an interest in any fashion or doing business with a client, the lawyer must send the client a letter to point out the conflict and suggest they get independent counsel advice. The letter also has to reflect that the client has to waive the conflict in writing. Rule of Professional Conduct 1.8(b) prohibits a lawyer from using information learned during the representation to the client's disadvantage and could also be an issue. Obviously, if a lawyer learns about something in the representation, the lawyer shouldn't be trying to take advantage of that.

Although the modern practice of law seems to be blurring certain areas when nonlawyers are allowed to be partners in law firms as in Britain, there is a push for issues like that in the United States for lawyers. But it is better for the lawyers and the legal profession not to go there.

The legal profession has a unique role. Independent lawyers who are retained to do their best for the client or to try to resolve issues for clients and who give clients advice in transactions or business dealings. An independent knowledgeable lawyer is critical to the proper functioning of a democratic society and the business of that society.

Once the lines become blurred, once the lawyer acquires too much interest in the litigation, the legal profession's independence and its role are compromised. Therefore, the question of acquiring an interest in a client's suit is prohibited as noted by Rule 1.8 of the Rules of Professional Conduct. But, more importantly, it is a foolish thing for any lawyer to do and undermines the tradition role of the legal profession.

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.