Before a judge imposes fines, the judge must conduct an inquiry into the defendant's ability to pay.

I am a judicial officer and I have concerns with regard to placing individuals in jail because they are unable to pay fines, and things of that nature in criminal cases. I am also concerned about keeping a person in jail when there are delays with constables bringing people to the courthouse. Are there any ethical issues?

Samuel C. Stretton.

There clearly are ethical issues. In today's world, too many people are in jail because they don't have monies to post bail or pay fines. That is not acceptable. If a person is in jail for a day or two because of problems in getting a prisoner transported to the judicial courtroom, that is no longer acceptable. This writer represented a district judge who ended up with a letter of counsel (which is like a reprimand) because of an individual who was picked up on the judge's summary warrant, and also picked up on a Common Pleas Court domestic warrant. The judge did not bring the person over in a timely fashion after the domestic warrants were lifted. That person stayed in jail for several additional days. The judicial conduct board was concerned about that situation and did not want it to occur again in the future.

The ethical issues over incarcerating poor defendants was emphasized recently in the March 24, formal opinion of the American Bar Association's committee on ethics (Opinion 490). That opinion is titled "Ethical Obligations of Judges in Collecting the Legal Financial Obligations and Other Debts." Though the opinion discusses the ABA Model Code of Judicial Conduct, many of the provisions are similar to Pennsylvania's Code of Judicial Conduct.

The rules of judicial conduct at issue are Rule 1.1, requiring a judge to comply with the law; Rule 1.2, promoting confidence in the judiciary, and requiring a judge to act with integrity, impartiality and with independence; Rule 2.2, requiring impartiality and fairness; Rule 2.5, requiring a judge to perform judicial duties and administrative duties competently and diligently; Rule 2.6, requiring a judge to give every person the right to be heard.

These rules are all cited in the American Bar Association's formal Opinion 490. In essence, the opinion requires a judicial officer to undertake a meaningful inquiry into a litigant's financial ability to pay fines, fees, restitution, bail, civil debt or incarceration, when it is used as a punishment for or an inducement to pay.

The American Bar Association's formal ethics opinions are not binding on the Pennsylvania Supreme Court, but obviously they should be given great weight. The opinion notes some jurisdictions have failed to inquire into the litigant's ability to pay financial obligations. The opinion notes that the failure of a judicial officer to make that inquiry would violate Rules 1.1 and 2.6 of the Model Code, and also Rules 1.2, 2.2, and 2.5. These rules are similar to Pennsylvania, but there are some differences. The opinion notes, "The duty to inquire is foundational, not just to the Constitutional requirement, or the Constitutional rights of litigants, but to the integrity of the judicial process, and public confidence in it." This is a fairly strongly worded opinion. The old day of telling someone, well, if you don't have monies to pay the $500 fine, you will serve three days, and that will pay it off, are now gone. According to the opinion, ethically, there has to be "inquiries into a litigant's ability to pay, as well as to background budget constraints and other financial obligations."

The opinion starts by reviewing the Department of Justice Investigation into Ferguson, Missouri in 2015. The process and equal protection clauses of the Fourteenth Amendment of the U.S. Constitution were found to be violated. The opinion rejected the concept of a judicial officer threatening to incarcerate individuals for failure to pay legal obligations when there was no inquiry into the ability to pay. The committee also rejected judicial officers suggesting people use their disability or welfare benefits to pay or borrowing money from family members. It also rejected making payments of financial obligations as a condition of probation without inquiring into the ability to pay. The committee also rejected the use of contempt powers and financial awards without inquiry into the ability to pay.

The ethics opinion noted that many courts, due to financial and budget crises, have increased the fines and costs over the years. The opinion noted that for relatively minor violations, the amounts of fines and costs have substantially increased.

The committee did note that imposing discipline upon a judge for an incorrect ruling on fines and costs is a sensitive issue and could have an impact on judicial independence. The opinion noted, "Egregious legal error, legal error motivated by bad faith, or continuing pattern of legal error may well violate several provisions of the Code of Judicial Conduct." The committee warned against repeated violations.

The committee did note judges must give litigants an opportunity to be heard on the issue of payment. As long as the defendant's failure to pay is due to genuine financial incapacity, alternatives to incarceration must be explored. The opinion noted that this framework has been extended for contempt payments for failure to pay civil debt.

The committee noted as follows, "Without meaningful inquiry into a litigant's ability to pay, public confidence in the independence, integrity and impartiality, judiciary is not promoted within the meaning of Rule 1.2. It is compromised. The fairness of an impartiality required by Rules 1.2 and 2.2 are compromised by bail requirements and collection methods, and effect low income litigants while litigants with means can simply pay to avoid incarceration." The committee noted that Rule 2.2 is compromised. There are now procedures in place for timely and diligent hearings on the ability to pay. The committee notes particularly if litigants are unrepresented, the judge must inquire about the ability to pay bonafide efforts to do so. The committee noted the courts should adopt policies, practices, and procedures to accurately determine a litigant's ability to pay. The opinion ends as follows, "The liberty interest protected by the duty to inquire into ability to pay prior to incarceration for failures to pay are fundamental to litigants and to the rule of law itself. Courts have an ethical duty not only to comply with the law in so far as it requires inquiry into the ability to pay, but to protect the integrity, fairness, and impartiality of the judicial process by insuring that compliance is robust and consistent with legitimate state interests in public safety."

This is a fairly strongly written opinion and should be read by all judicial officers, both at the district judge and at the trial level.

In years past, too many lawyers have seen judge's using incarceration as a form of punishment if someone doesn't have the ability to pay. Judges would routinely say, I am sentencing you to two days, or one day, or one week, and that time will pay off the fine you owe. That is not allowed anymore, at least, not without a proper and accurate inquiry into the ability to pay.

Similarly, in sentencings, for fines and costs, that inquiry should be made. Too often at a sentencing hearing, the focus is, of course, on the length of incarceration, but before the judge imposes fines, costs or substantial restitution, the judge still must conduct an inquiry into the defendant's ability to pay. Failure to do so could result in judicial discipline.

Cutting corners is rarely a good idea in the practice of law.

I received a settlement check from an insurance company. It has my name on the check as well as the client's name on it. I crossed out the "and" and wrote "or," and then deposited the check into my escrow account, and made the distribution. Would that be a problem?

Over the years, some law firms have gotten sloppy about settlement checks. Normally, the settlement check is issued both in the attorney's name and the client's name. If listed in both names, it often is listed as "and." Over the years, firms have either deposited the check in their escrow account with just the lawyer's signature, or forged the client's signature, and deposited the check into the escrow account. Other times, lawyers have changed the language from "and" to "or" and deposited the check into the escrow account. The reason for doing this is not malicious. It is just a matter of convenience. Sometimes it is difficult to get the clients to come in right away or the client lives a substantial distance away so the firm deposits the check. The client then comes in and receives the distribution once the check has cleared. Distribution in these cases is made timely and the client gets the correct amount.

This practice, which has probably been done for years in some firms, really has to stop. Forging someone else's name, no matter how good the intentions are, and no matter how quickly the client gets their money, could be a serious violation, particularly if done over multiple times. The same thing could be said about changing and to or on a check even though the intentions are the best. Obviously, if it is done for the purpose of convenience, the client immediately gets their money, and there is no misuse of funds or delays, then there would probably be minor discipline, such as a Letter of Concern, or even a dismissal if it was the first time. But doing this repeatedly could create a problem.

A lawyer may ask how that would have come to the Disciplinary Board. It can come to the board depending on who sees the return check. If it is an estate check, it is usually seen by the executor, at least, in one case, an executor who was not happy with the estate litigation saw discrepancy on the check and reported it.

Old practices sometimes have to be examined. This writer recalls, as a young lawyer, when affidavits were still required as opposed to verifications on civil pleadings. Many lawyers in personal injury cases, when they met with their client, would have their client sign the affidavit. Perhaps, some firms still do this, but now have them sign the verification instead. Later, when the complaint was drafted, the lawyer would take the affidavit, have the secretary notarize it, or in more modern times, take the verification that is signed, attach it to the complaint, and then file it. That, of course, was done for convenience, but it could get a lawyer into serious problems, particularly if the client disagrees with something said in the complaint, and the client does not have the chance to review the complaint. That is a bad practice that developed years ago as a matter of convenience and efficiency, but also ignored the fact that the client had to verify what the lawyer had written. The good intention of efficiency is not a defense since this practice is illegal and improper. If it is done, a lawyer could face professional discipline.

Cutting corners is rarely a good idea in the practice of law. Even if there are good intentions, cutting corners can create issues of professional discipline. Every lawyer should just beware that the seemingly innocent, no harm, no foul act, can result in professional discipline since it is wrong and violates their professional obligation.

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.