Judicial officers are permitted to invest in outside businesses.

As a lawyer, I had a 20% share interest in a real estate business. I now have been elected judge. Do I have to get rid of that investment?

Samuel C. Stretton.

The answer is no. The appropriate rule is found in the Code of Judicial Conduct under Rule 3.11. That rule talks about financial activities of a judicial officer. Rule 3.11(a) states as follows: "A judge may hold and manage investments of a judge and members of the judge's family."

That rule, obviously, allows a judge to have his own investments and to manage them. If the business is a small real estate ownership, a shareholder arrangement or stocks in a major corporation, a judge is allowed to hold such an interest.

But a judge cannot serve as an officer, director, manager, general manager, adviser or employee of that business entity. See Pennsylvania Rules of Judicial Conduct, Rule 3.11(b).  There are exceptions to that if it's a closely held business by the judge or members of the judge's family.

One of the key points in any management or stock shares is whether or not the business would appear regularly before the court for which the judge serves. That is one of the major issues of concern with the Judicial Conduct Board if the judge has investments. If the business that the judge has invested in would potentially legally appear in the Court of Common Pleas for which the judge is a duly elected judge, that could obviously interfere with the judge's performance because of recusal issues. In a large county such as Philadelphia, perhaps it wouldn't be a problem because the case could be given to other judges. In a small county if there is only one, two or three judges, that could be a major problem. As a result, a judge is not allowed to be involved in business that would frequently appear in his courtroom.

Obviously, a judge is not prohibited from investing his money in corporations or businesses that might make a decent return. As long as the business is ethical and the judge has no management responsibilities unless it is the judge's own company that he has invested in, the judge is allowed to invest. Obviously, there could be judicial disqualifications depending on whether that business would appear before the judge and, as noted above, if the business frequently appears in the judge's court then the judge should perhaps get out of those investments because it could interfere with the efficiency of the court.

Comment 1 to Rule 3.11 of the Code of Judicial Conduct states as follows: "Judges are generally permitted to engage in financial activities, including managing real estate and other investments for themselves or for members of their families. Participation in these activities, like participation in other extra-judicial activities, is subject to the requirements of this code.  For example, it would be improper for a judge to spend so much time on business activities that it interferes with the performance of judicial duties."

Obviously, any time a judge is involved in investment and other businesses, the judge should not use his judicial title. Certainly, no judge should advertise the business with the judge in a judicial robe or suggest that the judge uses his business. That could result in serious professional discipline. A number of years ago, a judge allowed her hairdresser to advertise that the judge used her salon. The hairdresser published an ad with the judge's endorsement in a judicial robe. This type of conduct is clearly prohibited. The judge was reprimanded at the time.

A judge must carefully look at any extracurricular activity or any business-related investments with a broader view than just whether it will violate the Code of Judicial Conduct. Obviously, it's important that judges not violate the Code of Judicial Conduct. But, sometimes even if there is no violation it may be better not to do certain things if it would raise questions about the judicial institution or the integrity or bias of the court.

When one becomes a judge, they give up certain rights that they normally would have. But they give it up willingly because they want to perform the public service of doing justice and making sure the legal system works fairly. A judicial position, whether elected or appointed, is an extremely important position in a democratic society. That position helps the society resolve its disputes, upholds the enforcement of the law, ensures proper enforcement of the criminal laws and sentencings, and uphold the Pennsylvania and U.S. Constitutions. In fact, perhaps the most important job for any judicial officer is that as a constitutional officer enforcing the Constitution. A judge has to at times be above the battle. A judge has to appear nonpartisan. The public has to have confidence in the judicial officer that that person will be fair and render and do justice. That's why in many polls, judicial officers were often given a high public approval. That has changed in recent years where at times the public starts to believe the judges are partisan and have political agendas. Under no circumstance can any judicial officer allow that to occur. Thus, any involvement or investments of business can have no taint or scandal.

As noted, a person's life is never the same once they are elected or appointed as a judicial officer. There has to be a line drawn between old colleagues at the bar and close friends. That doesn't mean a judge can't maintain friendships, but there always has to be that line and recognition that everything the judge does now will be scrutinized. It is a hard life for a judicial officer at times, but the rewards for doing justice and ensuring the equal enforcement of the law and the rights and privileges under the constitution are the rewards a judicial officer will gain if he does the job fairly and justly.

If evidence in a case has seriously changed after the fact then the record should be corrected.

Do I have to correct a trial record—for instance in a custody case or another case—when the information I presented at the time of the trial was correct, but later becomes incorrect because of a new investigation or change of circumstances?

The question posed is an interesting and difficult one for lawyers, particularly trial lawyers.  Cases are fought hard based on information and evidence at hand. On the other hand, particularly in a child custody case, the facts are paramount and if there is a substantial change after the hearing, the lawyer may well have a duty to correct the records even though the original information presented was correct at the time.

The appropriate rule is found at Pennsylvania Rule of Professional Conduct 3.3(a). That rule prohibits a lawyer from knowingly making a false statement of material fact or law or failure to disclose to a tribunal controlling decisions adverse to a position or when a lawyer offers evidence the lawyer knows to be false.

A quick reading of the above rule would suggest that if the lawyer didn't know the evidence was false or if it wasn't false at the trial, then there is no duty to correct. But a careful reading notes as follows under Rule 3.3(a)(3). That rule discusses when a lawyer presents evidence or witnesses and "a lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures including, if necessary, disclosure to the tribunal."

Under the question as posed, it appears if evidence that was presented in a custody case is seriously changed after the fact then the record should be corrected. After the trial, but before a decision, if the lawyer learns that new information has now discovered a problem that is under investigation, the lawyer has certain duties. Obviously, the lawyer didn't present false information since it was correct at the time. But now the lawyer has learned what he presented is incorrect due to the after-the-fact information, it would appear the lawyer has a duty to correct the false information. Taking the reasonable remedial measures appears to be required under the rule even though the lawyer, when presenting the evidence believed it, in fact, to be true; just circumstances changed.

Comment 2 to Rule 3.3 helps in making this decision.

"Consequently, although a lawyer in an adversary proceeding is not required to present an impartial exposition of the law or to vouch for the evidence submitted in a cause, the lawyer must not allow the tribunal to be misled by false statements of law or fact or evidence that the lawyer knows to be false."

Under the question posed, the lawyer did nothing wrong during the trial, but because of changed circumstances after the trial but before the judge's decision, the lawyer knows that the judge would now be misled by the original information.

Under Comment 10 to the rule, titled "Remedial Action," the following is said: "Having offered material evidence in a belief that it was true, a lawyer may subsequently come to know that the evidence is false."

The comment then goes on to talk about the lawyer's duty to take remedial steps because of the lawyer's duty of candor to the tribunal.

These are hard decisions to make, particularly in the contentiousness of an adversarial proceeding. Child custody proceedings sometimes can be over the top in terms of the contentiousness of the parties. But the basic rule states that the judge cannot be misled and the proceedings have to have candor and integrity. Otherwise, the system would fall apart.

Therefore, as hard as it is and sometimes it goes against every good competitive trial lawyer's instinct, sometimes remedial steps have to be taken. Even when the lawyer presented evidence that was true at the time, but now turns out to be incorrect due to new information. It's a hard road to go down, but a good lawyer and ethical lawyer must. It is the only way the integrity of the system can be maintained.

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.