Even when dealing with specialized courts, there are still limitations that the judge must be aware of.

Understanding that judges are not allowed to have ex parte communications, it appears that specialized courts such as Drug Court and Veterans Court regularly have ex parte communications. Is there an exception under the rules for that?

Samuel C. Stretton.

In Pennsylvania, there is an exception, which is similar to many other jurisdictions. Rule 2.9 of the Code of Judicial Conduct in Pennsylvania, under subsection E, clearly allows specialized court judges to engage in ex parte communications within reason.

"It is not a violation under this rule for a judge to initiate, commit or consider ex parte communications expressly authorized by law, such as one serving on therapeutic or problem-solving courts, mental health courts or drug courts. In this capacity, a judge may assume more interactive role with the parties, treatment providers, probation officers, social workers and others."

Comment 8 to Rule 2.9 notes as follows, "In order to obtain the protection afforded to ex parte communications under Paragraph E of this rule, a judge should take special care to make sure that the participants in such voluntary special court programs are made aware of and consent to the possibility of ex parte communications under Paragraph E."

The rules wisely allow for ex parte communications in drug courts, veterans courts and other specialized courts, but the parties, or the person participating has to be aware of the ex parte communication and has to consent to it. Presumably, the consent would be in the contract or agreement that participants in these various specialized courts enter into. Without a consent agreement, there could be potential problems for the judge if a complaint was made.

Originally, this above change was resisted to some extent. The American Bar Association made recommendations for changes to the ABA's Code of Judicial Conduct. There were concerns because these kinds of specialized courts were too different, and there are too many types of specialized courts for the normal Code of Judicial Conduct to be applicable.

The concerns have disappeared, particularly since these specialized courts have developed their own rules and regulations with the appropriate exceptions in the Code of Judicial Conduct adopted by the various states.

It is important to recall that there is a limitation to ex parte communications in these matters and there must be generalized consent given by the participant for the ex parte communications to take place.

Sometimes, these specialized courts balance two judicial hats. One is the rehabilitative and therapeutic hat, and the other is the judicial punishment hat. The question is if punishment is going to be imposed for breaking one of the rules, can there be ex parte communications, or should these issues be handled in the open courtroom? Perhaps, the ex parte communications should be prohibited if punishment is being considered. The Pennsylvania Rule 2.9 does not deal with that issue. Presumably, in each individual court, there are rules and regulations that would deal with the punishment aspect. Otherwise, it should be treated in the way of any court proceeding where ex parte communications would not be allowed.

Every judicial officer has to remember, even when they are dealing with these specialized courts and with the broadened role they play, there are still limitations that the judge must be aware of.

The greatest change in the role of judges is the shift from being an adjudicator to being a manager.

What is one of the biggest changes you have observed in the world of judges in the last 50 years?

This is an interesting question. Many judges are very bright and well educated, but one would also have to note that the trial experience of many judges are far less than judges who were elected or appointed 30 or 40 years ago. That is not necessarily the fault of modern judges. Thirty years ago, there were many more opportunities to try cases than presently exist.

Many judges now seem much younger than judges elected or approved 30 or 40 years ago. In years past, most people did not become a judge until they had practiced law for 20 or 30 years, and then were appointed or elected in their early 50s or mid-50s and served until retirement in their late sixties. Judges in the past had a close tie to the practicing bar and served 10 or 15 years normally at most. Today, many judges are much younger, and are in their 30s or early 40s, and will serve 30 or 40 years on the bench. Whether that is good or bad remains to be seen. The former Dean of Dickinson School of Law, Burton Laub, was respected and beloved by years of law students. He had served for approximately 18 years as a judge in the Orphans Court in Erie County. He then left that position to become Dean at Dickinson School of Law. When this writer attended Dickinson School of Law, Dean Laub was still the Dean and still teaching evidence. He was once asked why he left the bench. His answer was surprising. He said after 17 or 18 years of everyone smiling at him, telling him how bright he was, and standing up every time he walked into a room, he realized this was affecting him. He believed, after 18 years, it would be a good idea to do something else, and get away from that type of environment, which was not necessarily healthy to one's state of mind. His words of wisdom and concern for the long-term effect of being a judge ought, at times, to be considered by modern judges.

The biggest difference is the role of a modern judge. When this writer first started practicing law, a judge was primarily an adjudicator. A judge would sit there and be passive, take in the evidence, and make allegedly reasonable and rational decisions. That is what was expected of a judge. In the last 15 or 20 years, that expectation has greatly changed. A judge now is much more primarily an administrator. Judges have to deal with the massive caseloads they are facing. Also, the world of litigation, at times, particularly on the civil side is becoming far more complex than perhaps judges 30 or 40 or 50 years ago would face regularly. As a result, there is a real change in the role of a judge from being an adjudicator to being an administrator or case manager.

One observer stated being a judge now is almost like joining a bureaucracy at times. Perhaps, that is an over-characterization. Some of the concerns this writer is expressing have been set forth in the excellent book "Judicial Conduct and Ethics Fifth Edition" by Charles Geyh, James Alfini, Steven Lubet and Jeffrey Shaman, which was published by LexisNexis. See pages 6-1 and 6-2. Modern judges are placed with the great burden of being administrators, which judges in the past did not have to face.

As a result of this enhanced judicial role, professionalism is now defined more by administrative skill. The list of how many cases a judge has disposed each month is apparently routine and circulated among judges each month. In some courts, it has become a contest between judges as to how many cases have been resolved in a month. This type of administrative competition undermines the adjudicative aspect of being a judge.

As a result, being a good administrator sometimes is more respected than being a good judicial scholar or a fair arbitrator.

Whether this makes for better judges is uncertain. It certainly makes for more stress for judges and creates quite a bit of responsibility for assuming the administrative duties, the managing, and timely moving of cases much more efficiently than past judicial administrations have done.

Therefore, perhaps the greatest change in the modern role of judges is the shift from being an adjudicator to being a manager or a bureaucrat. Whether this undercuts the role of judging remains to be seen. The administrative skill is now the foremost requirement of a Judicial Officer. A judge who moves many cases is well regarded. A judge who writes the brilliant Opinions, but perhaps is slower in adjudications, is not given the respect that would have been given 30 or 40 years ago.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 47 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 103 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.