Extra-judicial activities are prohibited to protect the judicial institution.

What kind of outside employment can a Common Pleas judge engage in?

Samuel C. Stretton.

The answer is really none. Unlike district court judges who have a right to have a part-time law practice or other forms of employment, Court of Common Pleas judges are pretty much limited to their judicial duties. The reason is the job of being a Judge in the Court of Common Pleas is a full-time job. Under Rule 2.1 of the Code of Judicial Conduct, a judge must give precedence to the duties of his judicial office and should be burdened with conflicts on time. This rule indicates the judge's personal or extra-judicial activities must be arranged so as to not interfere unreasonably with their discharge of the judicial office. Further, judges have to be available to fulfill their judicial duties and not engage in personal conduct that could result in their disqualification.

Under Rule 3.1 of the Code of Judicial Conduct, there are some extra-judicial activities a judge can be involved in, but it is very limited. A judge cannot be involved in activities that could result in frequent disqualification or that would interfere with judicial duties under Rule 3.1. In terms of employment, under Rule 3.10 a judge is prohibited from practicing law (of course a judge can always represent himself in a legal action). Judges who represent themselves must notify the court administrator's office. There is an exception to this if a judge is also a member of the military. For instance, if the judge is an officer in the JAG Corps and is called up to active duty, the judge then can practice law pursuant to his military service, pursuant to Rule 3.10. In Rule 3.11, a judge is very limited in terms of any financial activities—essentially limited to closely held business by family members. In Rule 3.12 of the Code of Judicial Conduct, a judge can get compensation for extra-judicial activities permitted by the code unless such activity would infringe on the judge's independence, integrity or impartiality. Therefore, a judge can get stipends or fees for speaking and teaching. Of course, it all has to be publicly reported.

Very recently a further limitation of judicial conduct has been made, by order dated Feb. 11, from the Pennsylvania Supreme Court:

"No judge shall have a financial interest as defined by Section 2101.1(e) of the Medical Marijuana Act (35 PS 10231.2101.1(e), in or be employed directly or indirectly by a medical marijuana organization or by any holding company, affiliate, intermediary or subsidiary thereof."

The scope of this order by the Pennsylvania Supreme Court includes all judges, that is justices of the Supreme Court, judges of the Superior Court, judges of the Commonwealth Court, judges of the Common Pleas Court, judges of Municipal Court and all Magisterial District judges.

This rule goes into effect on Sept. 1.

Therefore, for businesses involving medical marijuana and presumably recreational marijuana, a judge is not going to be allowed to participate or invest in such a business. If the judge already has an interest then the judicial officer has until Sept. 1 to divest themselves.

Of interest is that the order excludes lawyers and nonlawyers performing judicial functions, including but not limited to masters and arbitrators before the Unified Judicial System. A lawyer who is a master or arbitrator or anything of that nature can still be involved in such activities of investment or participation with a medical marijuana business.

As a judge, one gives up quite a bit, but in return one has the high privilege to serve as a judicial officer. The attorney, now as a judge, has the duty to protect the Constitution, to be fair and just, to help people and to improve the judicial system. It's a small price to pay in return to be limited or prohibited from many extra-judicial activities.

Hopefully someday judicial officers will be paid a better salary. The current salary is not bad, but it's small in comparison to what perhaps many big firms pay their partners. On the other hand, the bulk of lawyers have to work very hard to get an income that a judicial officer has. To receive that kind of income would probably mean a lawyer would have to have revenue of $700,000, $800,000 or perhaps more to pay for the overhead. But the judicial salary is sufficient and other types of income-making opportunities are prohibited to protect the judicial institution.

Accepting indigent court appointments can be very enriching to a lawyer.

I am being pressured by the judges in my county to accept post-conviction hearing relief appointments. Is there any requirement that I do so?

The answer is there is no requirement, but all lawyers have a duty not to avoid appointments. The appropriate Rule of Professional Conduct is Rule 6.2. That rule states in pertinent parts as follows: "A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause such as representing the client is likely to result in a violation of the Rules of Professional Conduct or other law; representing the client is likely to result in unreasonable financial burden on the lawyer; or the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client."

Comment 1 to Rule 6.2 states that a lawyer is ordinarily not obligated to accept a client if the lawyer doesn't like the client's character or the lawyer finds the client's case repugnant. But the comment notes as follows: "All lawyers have a responsibility to assist in providing pro bono publico service."

The comment notes that lawyers fulfill this responsibility by accepting a fair share of unpopular matters or indigent or unpopular clients.

Of course, in the modern world there is not the general court appointments. When this writer first started practicing, in many counties every lawyer was on the appointment wheel for criminal cases and would get a call and have to handle several criminal cases a year. That changed due to the economics of the situation in the last 15 to 20 years. Now many counties have conflict counsel that get a flat fee each month, usually around the range of $2,500 to $3,000. This writer contends that system is unethical because there is no relationship to the number of cases a lawyer takes under the flat fee court-appointed system. In other counties, such as Philadelphia, there is a graduated fee payment plan with the fee depending on the stage where the case resolves itself. None of these indigent fee systems pay much money at all.

Post-conviction hearing relief petitions are very unpopular with most lawyers. They take a lot of time. Particularly if it is a major criminal case, these could be 10 to 20 volumes of trial transcripts. And, at least in Philadelphia County, one doesn't get paid until one has completed the PCRA through the Supreme Court review. This places a great burden on lawyers since one might not be paid for work until three or four years later. Then the fee paid is often cut.

On the other hand, lawyers, particularly those who know criminal law, should accept at least some of these appointments. There are many PCRA petitions where no one has been appointed because no one will accept the cases. Lawyers have an obligation to step up, particularly if asked by a particular judge. A lawyer must also not take too many, because there could be severe discipline if a lawyer accepts appointments and doesn't complete them timely. Two or three or four cases of neglect now in this modern disciplinary world can result in suspension or even potentially disbarment, although there usually has to be a prior history of discipline for that.

On the other hand, accepting indigent court appointments can often be very enriching to a lawyer. The key is to limit the number of appointments so as to not be overwhelmed.

Every lawyer must remember law is a profession. From a business standpoint, one wouldn't do the appointments. It makes no economic sense. But from a professional standpoint, that's the essence of being a lawyer: helping others, helping the court system and attempting to do justice. Therefore, every lawyer should consider accepting these PCRA appointments and not try to find excuses not to as long as one doesn't overburden themselves to the point that they could face attorney disciplinary action.

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.