A judge and a lawyer need to make it very clear that they are friends, and at times, still socialize together.

In a small county, the judge and the district attorney have been good friends for many years. Is it OK for them still to take vacations and socialize together?

Samuel C. Stretton.

Becoming a judge does place restrictions to some extent on a judicial officer. Life can no longer be quite the same level of comradery with members of the bar that all had when they were on the same side of the bench. On the other hand, real close friends of a judge should be able to remain close friends. A judge like every other human being needs social contact and friendship and doesn't need isolation totally. For a judge to be totally isolated from having any friends would not be the best thing for a judicial officer and certainly not good for justice in a courtroom.

Therefore, where are the lines that have to be drawn with close friendships, particularly when one friend is now a judge and the other friend is a district attorney.

Obviously, there is guidance in the Code of Judicial Conduct. In Rule 1.2, a judge has to maintain confidence in the independence, integrity, and impartiality of the Judiciary, and should avoid impropriety and the appearance of impropriety. As has often been said, lawyers no longer have the appearance of impropriety standard in the Rules of Professional Conduct, but judges still do. Comment 3 to Rule 1.2 notes as follows, "Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary." The Code of Judicial Conduct Rule 2.1 clearly states as follows, "The duties of a Judicial Office, as prescribed by law, ordinarily take precedence over a judge's personal and extra-judicial activities."

Rule 2.4 precludes a judge from allowing family, social, political, financial, or other interest to influence the judge's judicial conduct or judgement. Further, Judicial Conduct Rule 2.11 involving disqualification requires a judge to disqualify if their impartiality might reasonably be questioned. Under Rule 2.11 if there were campaign contributions say by the district attorney to the judicial officer, or vice versa, that could be the basis for disqualification. A very close friend may well be disqualified from appearing before a judge. But it will be decided on a case-by-case basis as guided by Rule 2.11.

The best practice is also full disclosure by the lawyer and the judge concerning the relationship. If a lawyer is a great personal friend or the district attorney is a great personal friend of the judge and they do socialize together then that should be disclosed to all parties. It would not be uncommon, particularly in smaller counties where the lawyers grew up trying cases, either with each other or against each other over the years to make the disclosure.

For lawyers under Rule 8.4(e) of the Rules of Professional Conduct, a lawyer cannot imply an ability to influence a judge. Under Rule 8.4(d), a lawyer cannot engage in conduct prejudicial to the administration of justice. Therefore, lawyers who are close friends of a judge should not be suggesting that the relationship might provide a better result, or anything of that nature.

Obviously, if there is a romantic relationship between a judge and a lawyer, the lawyer cannot appear before the judge and the judge must disqualify. The relationship should be disclosed. If an assistant district attorney was dating a judge or assistant public defender was, or a private lawyer, that would be a mandatory reason to disqualify the judge. Full disclosure should be made by the lawyers and the judge under those circumstances.

Judges who use social media and list lawyers or litigants as friends may have to recuse themselves. This is a good reason for a judge not to use Facebook or social media.

The recent case of the former district attorney of Centre County comes to mind. She had had personal relationships with several judges with allegations of improper communications. Her conduct ultimately resulted in a suspension.

In the book, "Judicial Conduct and Ethics, Fifth Edition," by Charles Geyh, James Alfini, Steven Lubet and Jeffrey Shaman, there is an excellent section found at pages 4-25 about social relationships and judges. The authors state, "A particular concern is the dilemma introduced when a judge has a social relationship with a party or witness in a proceeding. On the one hand, a judge should not be discouraged from having social or other extra judicial relationships; in fact, they can enhance a judge's effectiveness. Moreover, in smaller communities, judges cannot avoid being familiar with a substantial percentage of the lawyers and the parties who appear before them: to require that a judge has to qualify themselves from every case in which an acquaintance appears in a court would impose an unreasonable burden on the justice system of those communities."

The book talks about when friends give things of value to a judge. That obviously could be the basis for a disqualification depending on the value and must be fully reported. The old roofer cases in Philadelphia are right on point.

A classic case was when the late Justice Antonin Scalia went on a duck hunting trip with the vice president of the United States. There was an environmental case pending in the U.S. Supreme Court where actually the vice president was a listed party. Scalia did not recuse himself and noted as follows, "While friendship is a ground factor for recusal of a justice where the personal fortune or the personal freedom of the friend is at issue, it is traditionally not been a ground for recusal where official action is at issue no matter how important the official action was to the ambitions or the reputation of the government officer."

The aforementioned book, "Judicial Conduct and Ethics," references a case, United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985). There, the judge had a social relationship with an attorney, and both took vacations together at times. The U.S. Court of Appeals for the Seventh Circuit discussed the reasonable question whether the judge's impartiality existed because the judge and lawyer were such close friends and their families took vacations together, particularly in that case, right after the sentencing. The court still affirmed the conviction because they said the opposing counsel was aware of the friendship and made no timely motion for recusal.

The critical thing when a district attorney and a judge are friends is to make disclosure about the friendship. It would be better if the district attorney did not appear in the judge's courtroom and only sent associates. Obviously, the district attorney and judge can have no correspondence or communication about any pending case except in the courtroom where all parties are involved. It would be better if the judge and the district attorney did not go on vacation at or about or near the time of any major trial at issue.

The better practice might be for the judge to not hear criminal cases, at least, for a year or two, until some of the issues are resolved.

But it is absolutely critical for the judge and a lawyer to make a full and complete disclosure to any litigant on any criminal or civil cases of the close relationship, or at times, the joint vacation. Also, the judge should make it very clear that there was no communication about any case or any issues of any case.

This was a difficult article to write because it would seem to be unreasonable to recuse a judge just because they are close friends with the district attorney for over the years, and, at times, have social contact. Particularly in a smaller county, that could create a tremendous hardship since if there was going to be a disqualification of a judge on all criminal cases, it would cost the county some additional monies to bring in senior judges to handle the caseload. It is important also to protect the integrity of the bench.

The best plan of action is for a judge and a lawyer to make it very clear that they have been friends for an x number of years, and at times, still socialize together and, even at times, take vacations together. It might be better to stop the vacations.

It might be a wise decision to read a number of the judicial recusal cases, but it appears there would be no blanket recusal under those circumstances, unless there were additional facts. It was a difficult decision always, but it doesn't appear to be a blanket recusal, but there must be full and complete notification to all parties.

Rule 7.5 is important since it attempts to ensure that there is nothing misleading in a law firm's name.

I am a lawyer setting up a law firm. Do I have to indicate on my letterhead whether the firm is a corporation or a limited liability partnership or anything of that nature? The Pennsylvania Rules of Professional Conduct have a section titled firm names and letterheads that is found at Rule 7.5 of the Rules of Professional Conduct. That rule prohibits a name from being misleading and limits the use of trade names if they imply any association with a government agency. The rule also prohibits under subsection Rule 7.5, lawyers from implying or suggesting they are in a partnership or from a professional corporation with equity if, in fact, that is not true. The days of sharing a receptionist and having everyone's name listed on the letterhead are no longer allowed. They haven't been allowed since 1987.

There is nothing in the Rules of Professional Conduct requiring a law firm to list or state it is a professional corporation. Pennsylvania statutes do not appear to make that a requirement. The appropriate statute is 15 Pa.C.S.A. 2903. That statute talks about the formation of a professional corporation, but there is no requirement that the name of the corporation indicate it is a professional corporation. This stands in contrast to the limited liability partnership statute as seen from 15 Pa.C.S.A. 204. That statute discusses a limited liability partnership. That statute requires disclosure that the entity is a limited liability partnership. Therefore, a law firm's letterhead would have to note the limited liability. It must include the term company, limited or liability partnership, according to 15 Pa.C.S.A. 204(b)(2).

On the subject of a law firm's name, it should be noted that if a former judge, or a former legislator, or governor, or public office holder are now partners in the firm, the firm's letterhead should not use the word Honorable. At least, one ethics committee in Pennsylvania has found that to be misleading and not permissible. See the Pennsylvania Bar Association's informal Opinion 98-17.

Rule 7.5 is important since it attempts to ensure that there is nothing misleading in a law firm's name. Rule 7.5 provides good general instructions. Pennsylvania statutes have the further requirement for a limited liability partnership to be revealed in the name.

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.