Some rules should be given a second look and perhaps changed.

What rules would you recommend to change to the Pennsylvania Supreme Court where attorneys are involved?

Samuel C. Stretton.

Of course, there are many rules that need to be revised or changed. The Rules of Professional Conduct do not truly reflect modern technology and the problems created by it. At some point there should be an overhaul and a new set of rules developed.

But, in terms of specifics, the Client Security Fund rules clearly have to be changed. First, they have a very oppressive 10% interest attachment to monies that have been paid out. That is far too excessive and often creates problems for lawyers who straighten out their lives and want to come back, but can't afford the payment because of this 10% interest rate. The second rule involves the Client Security Fund in terms of hearings. The fund doesn't often give hearings, but the fund can award thousands or tens of thousands of dollars against a lawyer without a hearing. This would appear to be a fundamental due process issue that has to be amended. Every claim should require a hearing. The third rule with the Client Security Fund is that there can be no appeal. Therefore, a lawyer could have an award against him for substantial monies, having been given no hearing, and then have no right to an appeal. That clearly seems to violate due process and fundamental fairness. Everyone should be allowed to petition the Pennsylvania Supreme Court. A fourth rule also involves the Client Security Fund. That rule precludes a lawyer from applying for reinstatement if they don't fully reimburse the Client Security Fund. As noted above, the Client Security Fund has that additional 10% interest rate. But it seems extremely unfair and a bar to reinstatement. An attorney who is rich or wealthy or has a wealthy family can pay off the Client Security Fund and then file their reinstatement motion. An attorney who has no funds, who is poor, can't. It seems like there is a clear equal protection issue precluding the poor attorney from applying, but allowing a rich person to apply. I am not suggesting that the poor attorney not be responsible, but there ought to be a payment plan or something that's allowed with the right to apply for reinstatement once the plan is in place.

As to the Board of Law Examiners, it would appear that there ought to be a right if the student requests to address the full board. In the past, up until about 1994 or so, every hearing was held before the full Board of Law Examiners. That, of course, became impractical and resulted in a week of rushed hearings when the whole board had to be convened. The current system of one board member is fine. But in certain special cases, it would appear that the attorney ought to have the option of asking to appear before the full board to make argument when the board meets to consider the case. That would be a welcome change. The second issue is to change the rule that precludes an attorney from representing a law student while the student is being investigated. The Board of Law Examiners have a rule that precluded representation during the investigation stage. Therefore, when a person passes the bar, but does not receive the character letter because there is still further investigation, the Board of Law Examiners' Office won't talk to their lawyer. The Board of Law Examiners say they can only talk to the applicant and, therefore, will not communicate or deal with their attorney, even though the attorney has sent a letter. There is no other area of the law where it requires the people to be in litigation to recognize they have an attorney. Also, it could help the investigation if the attorney was involved. That rule most surely ought to be changed. The third issue with the Board of Law Examiners' Office is they need to hire more people. There is often a long time period between a person being told they are being investigated and the investigation being concluded. The Board of Law Examiners do this in a very honest fashion. They do it chronologically. On one case it was almost a year that had passed between the investigation and a letter. There has to be a better practice. Apparently, there is just not enough funding to adequately staff for the office to perform a more timely review. That would be an issue that ought to be considered in the future. If someone passes the bar exam, it is extremely difficult and an economic disaster if they cannot timely have a decision on the issues involving their character.

In reference to the Rules of Professional Conduct, as the comments noted above, there needs to be more of an overhaul to reflect modern technology. Some of the rules about immediate communication and timely communication have to be amended because in this crazy modern world where emails and text messages and other forms of communication come rapidly, it's impossible for a busy lawyer to respond quickly. Also, some of the requirements for the ledger sheets, keeping checks, etc. are really too burdensome. Everyone ought to be able to develop their own system as long as they have a system and not be disciplined just because they don't have ledger sheet with a running balance. It's not a bad idea, but it shouldn't be the basis for discipline.

There also has to be some major changes in how corporate counsel are treated when they are on inactive status or if they come licensed in another state and hired in Pennsylvania, but don't go through the limited corporate counsel licensing procedure. It is far too harsh to suspend these lawyers for this licensing issue when most people don't know and don't understand it. Similarly, for people who don't timely pay their annual fee and don't complete all of their CLEs, they shouldn't be placed on administrative suspension. Many of these people are well-qualified and have spent years practicing and licensed. Many of these errors are from inadvertence or during an extremely busy time period. It is better to allow them to keep their license and just pay a fine. In the alternative, for them to get their license back if they are inactive, they should not have to do a certificate of compliance that they notified all clients. Most people through this inadvertence are not in a position to notify all clients either because they work with a firm and it would cause them to be fired or because by sending it to their own clients, they could well lose substantial business. The notification of clients is for permanent suspension or disbarment. It should be forgone for administrative suspension when it occurs through inadvertence.

For reinstatement purposes, there ought to be changes in Rule 214(j), particularly with what is law-related. Too many suspended lawyers are running into traps when they get a real estate license or insurance license. When they apply for reinstatement, they are opposed saying they are involved in law-related activity. People who are lawyers and now suspended, but are doing business consulting work are running into the same issues. There is no reason to torture suspended lawyers. Most of these lawyers have changed and reformed. They are trying to make a living and if this law-related concept is carried to its ultimate conclusion, there is almost nothing a lawyer can do. A suspended lawyer who works in the human relations department and might look at regulation would be law-related. Similarly, working as an assistant vice president of a corporation could also involve law-related activities. This rule has to be changed at some point and the rule has to be reconsidered (Rule 214(j)).

These are just some of the rules that should be given a second look and perhaps changed. There are others, but these are the ones that seem most pressing. All lawyers, though, should be familiar with the Rules of Professional Conduct, the Disciplinary Board Rules, Client Security Fund Rules and the Bar Admission Rules.

The best way to run a campaign is to ensure that statements made will do nothing to injure the judicial office.

I am running for judicial office. What can I say in terms of discussing actions as a judicial officer and what will cause my disqualification?

There is still a lot of gray area in what a judicial candidate can say. It used to be the judicial candidate could say almost nothing about issues. That changed with the case of Republican Party of Minnesota v. White, 536 U.S. 765 (2002). In essence, the U.S. Supreme Court in that case found the First Amendment right for a judicial candidate to announce or discuss their views on issues that might come before them as a judge. But they can't state how they would decide the case.

Pennsylvania Rules of Judicial Conduct, Rule 2.10 speaks about judicial statements on pending and impending cases. Rule 2.10 prohibits a judge from making any public statement that might be reasonably expected to affect the outcome or impair the fairness of a pending matter.  Any judge cannot make promises or commitments that are inconsistent with the performance of the adjudicative duties of the judicial office. In Rule 2.11, a judge has to disqualify himself in any proceeding in which the judge's impartiality might reasonably be questioned. Under the rules involving judicial campaigns under the Code of Judicial Conduct, under Rule 4.1(a)(10), a judge is not to make any statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending in any court. In Comment 11, to Rule 4.1 of the Code of Judicial Conduct, candidates receiving questionnaires or requests for interviews cannot in any way pledge or promise commitments to perform adjudicative duties other than in an impartial manner. The candidate has to assure they will keep an open mind and carry out their adjudicative duties fairly and impartially if elected.

At times, there is intention between disqualification and a judge's right to state their views as a candidate. But it is really two separate issues. A candidate has the right to state certain views, but a litigant also has the right to have a fair and impartial judge. Sometimes there is conflict and the judge may have to disqualify themselves.

Sometimes it is worthwhile to review the Republican Party v. White case and see what a judge can and can't do. This case has created a lot of controversy and a lot of different opinions in terms of what a judge can and cannot say. The White decision was that rule prohibiting candidates for judicial election from announcing their views on disputed legal and political issues violated the First Amendment. The opinion was written by the late Justice Antonin Scalia.

Pennsylvania, like other states, have set forth in the Judicial Code prohibiting having pledges or promises and no misrepresentations. The White case did not discuss the pledge or promise prohibitions. In the White case, that section was not challenged. The court did not rule on the “to commit” prohibition. There are different interpretations. Some state courts are very narrow in their interpretation and some federal courts are far broader. Pennsylvania's Code of Judicial Conduct has attempted to deal with the issue about what to say or do is in the above quote language.

A judicial candidate has two concerns for the future when speaking out. One is a judicial disciplinary proceeding. The second is whether or not they will be disqualified depending on what they say. Although the U.S. Supreme Court does not deal with the commit and pledge causes, those are squarely set forth in Pennsylvania's Code of Judicial Conduct.

The best practice for a judicial officer is to state their judicial philosophies. I'm a liberal judge or I'm a conservative judge. I personally oppose the death penalty, but would follow the law. I am for the death penalty and I would follow the law. As the Code of Judicial Conduct is now written, a judge cannot make a pledge what they are going to do or a commitment that they will rule a certain way. They should not state their position in such a way that the litigants would believe that the judge has already predetermined issues.

Therefore, it's really a judicial minefield out there when one is on the judicial campaign. Some statements may come back to haunt a candidate and may require their recusal. But there is a First Amendment right to discuss viewpoints as long as there is no commitment or pledges or a clearly made up mind on how to decide certain issues. Within these confines there is a fair amount of flexibility as to a judicial candidate's speech.

Every judicial candidate must remember during their judicial campaign they are viewed as a representative of the judicial office they are seeking. No on ever wants to undermine that judicial office or privilege. Therefore, the best way to run a campaign is to ensure that statements made will do nothing to injure the judicial office. Every candidate must always protect the judicial office they are seeking.

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.