THE COURTS
Title 207--JUDICIAL CONDUCT
PART II. CONDUCT STANDARDS
[207 PA. CODE CH. 51]
Proposed Amendments to the Rules of Conduct, Office Standards and Civil Procedure for District Justices
[33 Pa.B. 745] The Minor Court Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rules 13, 14, and 15 of the Rules of Conduct, Office Standards and Civil Procedure for District Justices to clarify the restrictions on district justices serving as arbitrators. The Committee has not submitted this proposal for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. The Committee's Report should not be confused with the official Committee Notes to the rules. The Supreme Court does not adopt the Committee's Notes or the contents of the explanatory Reports.
The text of the proposed changes precedes the Report. Additions are shown in bold; deletions are in bold and brackets.
We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel,
Michael F. Krimmel, Counsel
Supreme Court of Pennsylvania
Minor Court Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, PA 17055
Fax 717-795-2175
or e-mail to: minorcourt.rules@supreme.court.state.pa.usno later than Monday, March 10, 2003.
By the Minor Court Rules Committee
THOMAS E. MARTIN, Jr.,
Chair
Annex A
TITLE 207. JUDICIAL CONDUCT
PART II. CONDUCT STANDARDS
CHAPTER 51. STANDARDS OF CONDUCT OF DISTRICT JUSTICES
PENNSYLVANIA RULES FOR DISTRICT JUSTICES Rule 13. Incompatible Practices.
[District justices, constables and all employes assigned to or appointed by district justices shall not engage, directly or indirectly, in any activity or act incompatible with the expeditions, proper and impartial discharge of their duties, including, but not limited to, (1) in any activity prohibited by law; (2) in the collection business; or (3) in the acceptance of any premium or fee for any judicial bond. A district justice shall not exploit his judicial position for financial gain or for any business or professional advantage. A district justice shall not receive any fee or emolument for performing the duties of an arbitrator.
Official Note: The next to the last sentence of this rule is derived in part from Canon 5C(1) of the American Bar Association and Pennsylvania Supreme Court Code of Judicial Conduct.]
A. A district justice may not exploit his or her judicial position for financial gain or for business or professional advantage.
B. A district justice may not act as an arbitrator or mediator.
C. A district justice or an employee assigned to or appointed by a district justice may not engage in, directly or indirectly, an activity or act incompatible with the expeditious, proper, and impartial discharge of his or her duties, including but not limited to (1) an activity prohibited by law, (2) the collection business, or (3) the acceptance of a premium or fee for a judicial bond.
Official Note: See Canon 5E of the Code of Judicial Conduct and Section 3304 of the Judicial Code, 42 Pa.C.S. § 3304.
Adopted, effective Feb. 1, 1973. Amended April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; amended _____ , effective _____.
Rule 14. Prohibited Practice of Attorney District Justice.
[A. An attorney who is a district justice shall not practice before any district justice in the Commonwealth, nor shall he act as a lawyer in a proceeding in which he has served as a district justice or in any other proceeding related thereto. Nor shall he practice criminal law in the county within which his magisterial district is located. An employer, employe, partner of office associate of such district justice shall not appear or practice before him.
B. An attorney who is a district justice shall not practice before, or act as an attorney or solicitor for, any county or local municipal, governmental or quasi governmental agency, board, authority or commission operating within the Commonwealth.
Official Note: Subdivision A of this rule is derived from former Rule 3A and Compliance Exception A(2), American Bar Association Code of Judicial Conduct. Subdivision B is derived from former Rule 3B. This rule contains all the prohibitions upon the practice of law by attorney district justices that were thought necessary.]
A. In addition to the general prohibitions in Rule 13, the following prohibitions apply to a district justice who is an attorney. A district justice who is an attorney may not:
(1) practice law before a district justice in the Commonwealth;
(2) act as a attorney in a proceeding in which he or she has served as a district justice or in any other proceeding related thereto;
(3) practice criminal law in the county within which his or her magisterial district is located; or
(4) practice law before, or act as an attorney or solicitor for a county or local municipal, governmental or quasi-governmental agency, board, authority, or commission operating within the Commonwealth.
B. An employer, employee, partner, or office associate of a district justice who is an attorney may not appear or practice law before the district justice.
Adopted, effective Feb. 1, 1973. Amended June 30, 1982, effective 30 days after July 17, 1982; amended and Note deleted _____, effective _____.
Rule 15. Public Office and Political Activity.
A. A district justice [shall] may not hold another office or position of profit in the government of the United States, the Commonwealth or any political subdivision thereof, except in the armed services of the United States or the Commonwealth.
B. [A] Except as otherwise provided in this rule, a district justice or a candidate for [such] the office [shall] of district justice may not:
(1) hold office in a political party or political organization or publicly endorse candidates for political office[.];
(2) engage in partisan political activity, deliver political speeches, make or solicit political contributions (including purchasing tickets for political party dinners or other functions), or attend political or party conventions or gatherings[, except as authorized in subdivision C of this rule]. [Nothing herein shall prevent a] A district justice or a candidate for [such] the office [from making] of district justice may make political contributions to a campaign of a member of his or her immediate family.
C. A district justice or a candidate for [such] the office of district justice may in the year he or she runs for office, attend political or party conventions or gatherings, speak [to such] at the gatherings or conventions on his or her own behalf, identify himself or herself as a member of a political party, and contribute to his or her own campaign, a political party, or political organization (including purchasing tickets for political party dinners or other functions).
D. With respect to [his] campaign conduct, a district justice or a candidate for [such] the office [shall] of district justice:
(1) shall maintain the dignity appropriate to judicial office, and shall encourage family members [of his family] to adhere to the same standards of political conduct that apply to [him.] the district justice or candidate;
(2) shall prohibit public officials or [employes] employees subject to his or her direction or control from doing for him or her what he or she is prohibited from doing under this rule; and except to the extent authorized under subdivision D(4) of this rule [shall] may not allow any other person to do for him or her what he or she is prohibited from doing under this rule[.];
(3) may not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; or misrepresent his or her identity, qualifications, present position, or other fact[.];
* * * * * (4) may not [himself] personally solicit or accept campaign funds, or solicit publicly stated support, but [he] may establish committees of responsible persons to secure and manage the expenditure of funds for his or her campaign and to obtain public statements of support for his or her candidacy. [Such] The committees are not prohibited from soliciting campaign contributions and public support from lawyers. [A candidate's] The committees may solicit [funds for his] campaign funds no earlier than [thirty (30)] 30 days prior to the first day for filing nominating petitions, and all fundraising activities in connection with [such] the campaign [shall] must terminate no later than the last calendar day of the year in which the election is held. A district justice or a candidate [should] for the office of district justice may not use or permit the use of a campaign contribution for the private benefit of himself or herself or members of his or her family.
E. A district justice shall resign his or her office when he or she becomes a candidate either in a party primary or in a general election for a non-judicial office.
Official Note: [This rule is derived from former Rule 15 and from Canon 7 of the American Bar Association and Pennsylvania Supreme Court Code of Judicial Conduct. this] This rule prohibits only political activity that is partisan in nature, and consequently there is no objection to a district justice becoming engaged in political activity of a public service nature, such as, for example, political activity [in] on behalf of measures to improve the law, the legal system, or the administration of justice. Compare Canon 7 of the Code of Judicial Conduct.
Adopted, effective Feb. 1, 1973. Amended Oct. 17, 1975, effective in 90 days; June 30, 1982, effective 30 days after July 17, 1982; Nov. 9, 1998, effective Jan. 1, 1999; amended November 21, 2002, effective immediately; amended _____ , effective _____ .
REPORT
Proposed Amendments to Rules 13, 14, and 15 of the Rules of Conduct, Office Standards and Civil Procedure for District Justices
CLARIFICATION REGARDING RESTRICTIONS ON DISTRICT JUSTICES SERVING AS ARBITRATORS I. Background
The Minor Court Rules Committee (hereinafter the Committee) undertook a review of Rules 13 (relating to incompatible practices), 14 (relating to prohibited practice of attorney district justice), and 15 (relating to public office and political activity) of the Standards of Conduct of District Justices1 in response to an inquiry from the Ethics and Professionalism Committee of the Special Court Judges Association of Pennsylvania (hereinafter SCJAP Ethics Committee). The SCJAP Ethics Committee reported that it had received a number of inquiries from attorney district justices asking whether or not an attorney district justice may serve as an arbitrator, particularly in contractual arbitration cases where the arbitrators' fees are paid by the parties. The SCJAP Ethics Committee referred the question to the Minor Court Rules Committee, suggesting that the interaction among Rules 13, 14, and 15 was causing confusion regarding the ethical restrictions placed on district justices in general, and attorney district justices in particular. After consideration of the inquiry, and review of the relevant rules, statutes, and other authorities, the Committee agreed that amendments to the rules were necessary to provide that no district justice, including an attorney district justice, may act as an arbitrator or mediator.
II. Discussion
As stated above, the SCJAP Ethics Committee suggested that Rules 13, 14, and 15, when read together, create confusion about what, if any, ethical restrictions are placed on an attorney district justice's ability to serve as an arbitrator. Specifically, Rule 13 states, inter alia, that ''[a] district justice shall not receive any fee or emolument for performing the duties of an arbitrator.'' Rule 14, which applies specifically to restrictions on the practice of attorney district justices, does not expressly prohibit attorney district justices from serving as arbitrators. Further, the Note to Rule 14 states that ''[t]his rule contains all the prohibitions upon the practice of law by attorney district justices that were thought necessary.''2 Finally, Rule 15 provides, inter alia, that ''[a] district justice shall not hold another office or position of profit in the government of the United States, the Commonwealth, or any political subdivision thereof . . . .'' The Committee learned that some district justices, when reading these provisions together, have interpreted them to mean that:
1. because Rule 13 prohibits a district justice from receiving ''any fee or emolument for performing the duties of an arbitrator,'' but no similar proscription is expressed in Rule 14, the Rule 13 provision does not apply to an attorney district justice acting in his or her capacity as an attorney;2. because of the limiting language in the Note to Rule 14, the arbitration prohibition in Rule 13 does not apply to an attorney district justice acting in his or her capacity as an attorney; and3. because Rule 15 prohibits a district justices from holding ''another . . . position of profit in the government . . . ,'' an attorney district justice may not serve as a arbitrator in a compulsory arbitration program in which fees are paid by a county or other government entity, but may serve as an arbitrator, in his or her capacity as an attorney, in a private contractual arbitration case in which fees are paid by the parties.The Committee also learned that some attorney district justices, relying on the above reading of Rules 13, 14, and 15, have been serving as arbitrators in contractual arbitration cases, particularly uninsured/underinsured motorist arbitrations.
The Committee disagrees with the above interpretation of the rules. The Committee reviewed Rules 13, 14, and 15, as well as Section 3304(b) of the Judicial Code, which states that, ''[n]o judge or district justice shall receive any fee or emolument for performing the duties of an arbitrator.'' 42 Pa.C.S. § 3304(b) (West 1981). In addition, the Committee compared the district justice rules with Canon 5E of the (Pennsylvania) Code of Judicial Conduct, which states that, ''[a] judge should not act as an arbitrator or mediator.''
In its analysis of the authorities, Committee noted that Rule 13 applies to all district justices, and prohibits all district justices from receiving a fee or emolument for acting as an arbitrator. Rule 14, the Committee noted, applies specifically to attorney district justices, and lists only certain prohibited practices not specified in the other rules relating to all district justices. Further, the Committee noted that Section 3304 does not distinguish between attorney and non-attorney district justices in its prohibition of district justices receiving ''any fee or emolument for performing the duties of an arbitrator.''
The Committee concluded, therefore, that the rules and statute prohibit a district justice, attorney or non-attorney, from receiving a fee or emolument for performing the duties of an arbitrator. The Committee disagreed with the analysis described above that would construe Rule 13 as not applying to an attorney district justice in his or her capacity as an attorney, and would create an artificial distinction between compulsory (court) and contractual (private) arbitration cases.
Having concluded that no district justice may receive a fee or emolument for performing the duties of an arbitrator regardless of the nature of the arbitration and the payer of the arbitrators' fees, the Committee next considered if the rules should retain the existing restriction and be amended to merely clarify the nature of the restriction, or if the rules should be amended to more closely mirror Canon 5E and fully prohibit district justices from acting as arbitrators. After considerable discussion, the Committee concluded that the prohibition on receiving a fee or emolument is so restrictive, and the risk of an appearance of impropriety so great when a district justice acts as an arbitrator or mediator, that the rules should reflect a comprehensive prohibition on a district justice acting as an arbitrator or mediator.
Accordingly, the Committee proposes that Rules 13, 14, and 15 be amended to more closely mirror Canon 5E and to provide that no district justice may act as an arbitrator or mediator.
III. Proposed Rule Changes
A. Rule 13
The Committee proposes that Rule 13 be divided into three subdivisions to enhance readability. The three subdivisions would contain the existing provisions of the rule with only minor editorial changes to address gender neutrality and conform with modern drafting style. Subdivision B would contain the new provision prohibiting a district justice from acting as an arbitrator or mediator. In addition, the reference to constables in the rule would be deleted in light of the Pennsylvania Supreme Court's holding in Rosenwald v. Barbieri, 501 Pa. 563, 462 A.2d 644 (1983). Finally, the existing Note to the rule would be deleted and replaced with a revised Note that cross-references Canon 5E of the Code of Judicial Conduct and Section 3304 of the Judicial Code.
B. Rule 14
The Committee proposes that Rule 14 also be restructured to enhance readability. Under the Committee proposal, the two existing subdivisions would remain, but the specific provisions restricting the practice of law by an attorney district justice would be consolidated and tabulated in subdivision A. Very significantly, the introductory sentence in subdivision A would be amended to read, ''[i]n addition to the general prohibitions in Rule 13, the following prohibitions apply to a district justice who is an attorney.'' This is intended to clarify that the provisions of Rule 13, including the arbitration provision, apply to all district justices, including attorney district justices. In addition, the restrictions on lawyers who are associated with the attorney district justice from appearing before him or her would be moved to subdivision B. Finally, the Committee proposes minor editorial changes to address gender neutrality and conform with modern drafting style. The Committee proposes that the existing Note to the rule be deleted entirely.
C. Rule 15
The Committee does not propose any substantive changes to Rule 15 in connection with the arbitration issue. In its review of the rule, however, the Committee identified the need for, and thus proposes, extensive editorial changes to enhance readability, address gender neutrality, and conform with modern drafting style.
1 207 Pa. Code Ch. 51, Rules 13, 14, and 15.
2 The Supreme Court does not adopt the Committee's Notes to the rules.
[Pa.B. Doc. No. 03-213. Filed for public inspection February 7, 2003, 9:00 a.m.]
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