Subchapter B. FORMAL OPINIONS
Sec.
99-1. Campaign Advertising.
99-2. Reporting Suspected Tax Evasion.
99-3. Judges and the Media.
00-1. Signing Nominating Petitions.
02-1. Time Withdrawn Judicial Candidates Must End Fund Raising.
11-1. (Reserved).
14-1. Social Activities.
15-1. Letters of Reference.
15-2. Affiliation with Discriminatory Organizations.
15-3. Certain Fundraising Activities.
15-4. Disqualification and Recusal.
19.1. Ethical Considerations Regarding Court-Appointed Masters, Hearing Officers and Other Quasi-Judicial Officers.
21-1. Reference Letters.
(Editor’s Note: This subchapter contains formal opinions issued by the Ethics Committee of the Pennsylvania Conference of State Trial Judges. Under section (8) of the preamble to the Code of Judicial Conduct, the Ethics Committee has been designated by the Supreme Court ‘‘as the approved body to render advisory opinions regarding ethical concerns involving judges, other judicial officers and judicial candidates subject to the Code of Judicial Conduct.’’ Section (8) further explains: ‘‘Although such opinions are not, per se, binding upon the Judicial Conduct Board, the Court of Judicial Discipline or the Supreme Court of Pennsylvania, action taken in reliance thereon and pursuant thereto shall be taken into account in determining whether discipline should be recommended or imposed.’’)
§ 99-1. Campaign Advertising.
The Code of Judicial Conduct provides that a candidate for judicial office, including an incumbent judge, should maintain the dignity appropriate to judicial office (Canon 7). Campaign advertising must, therefore, be dignified and appropriate to judicial office. The electorate is best served by advertising which accurately showcases the candidate’s credentials. The ads should not pander to the electorate. The candidate must take particular care that the ad does not in any way suggest that he or she will favor any particular group of litigants or make decisions on any basis other than the facts and the law.
A campaign ad may compare a candidate’s credentials to those of other candidates for the same office. However, Canon 7 provides that a candidate should not misrepresent his qualifications or any other fact. A candidate must be scrupulously careful that what the ads say about the candidate’s opponents is accurate. Once again, the ads must be dignified. Vituperative personal attacks against one’s opponents are per se undignified.
The Ethics Committee will not approve or disapprove any particular campaign ad. Moreover, if a candidate seeks and obtains advice from the Committee regarding campaign advertising, the candidate may not claim that the Committee’s advice constitutes an endorsement or approval of a particular campaign ad.
A candidate is responsible for any ads published by his or her campaign committee. A candidate should not permit others nor suggest to others that they publish ads which contravene the constraints of the Canons.
• Canon 7 does not specifically proscribe ‘‘negative advertising.’’ While in some limited circumstances negative advertising may be appropriate, given the nature of political ads, the Committee strongly discourages negative ads. Given the time limits of television and radio ads (10 and 30 second spots), it is very difficult to say something negative about one’s opponent which is not misleading. One could, for instance, say of a sitting judge, ‘‘Judge X freed three accused murderers.’’ Though such a statement might be accurate, it might also be misrepresentation by innuendo. If, for instance, Judge X freed the accused murderers because either the judge or the jury acquitted the accused, then the effect of the ad would be to vilify someone for doing what was totally proper. The clear implication of the ad is that the judge treated murderers leniently, which is misleading.
• An ad should not paint an attorney with the reputation of his or her clients.
• An ad which either directly or by innuendo refers to the ethnic background of one’s opponent is improper.
• To suggest that one’s opponent favors one gender over another simply because he or she is of the opposite gender of the candidate being promoted by an ad would be a totally baseless falsification. If, on the other hand, a candidate acted in a manner which truly indicated gender bias, that fact would be fair comment.
• An ad can be accurate, but it can also be misleading. An ad which is factually accurate, but is intended to mislead the electorate by giving a false impression about one’s opponent violates Canon 7. Once again, the electorate is best served by ads which showcase a candidate’s credentials and seek the support of the electorate on the basis of those credentials.
In summary, Canon 7 provides that:
A candidate . . . should maintain the dignity appropriate to judicial office . . . [and] should not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; announce his views on disputed legal or political issues; or misrepresent his identity, qualifications, present position, or other fact . . .
The principal parameters of campaign advertising are accuracy and dignity.
At the end of the Code of Judicial Conduct is a section entitled ‘‘Reliance on Advisory Opinions’’ which provides that although the advisory opinions of the Judicial Ethics Committee are not binding upon the [Judicial Conduct Board and the Court of Judicial Discipline] and the Supreme Court of Pennsylvania, the opinions shall be taken into account in determining whether discipline should be recommended or imposed. The ‘‘rule of reliance’’ applies to this Formal Opinion. However, before engaging in contemplated conduct, any judge who, out of an abundance of caution, desires a Committee opinion which will provide advice about the judge’s particular set of facts and to which the ‘‘rule of reliance’’ will also apply, may submit an inquiry to a member of the Committee, ordinarily, a member serving in the judge’s Conference zone.
Source The provisions of this Formal Opinion 99-1 adopted December 10, 1999, effective December 11, 1999, 29 Pa.B. 6236.
§ 99-2. Reporting Suspected Tax Evasion.
What, if any, is the responsibility of a trial judge to report suspected tax evasion to the appropriate tax authority?
This question was asked of the Committee by the administrative judge of a large metropolitan family court on behalf of the judges of that court. Recognizing the statewide implications of the inquiry, the Committee has decided to issue a formal opinion in this matter.
The Code of Judicial Conduct does not mandate reports of suspected tax evasion to tax authorities. The only mandatory reporting provision in the Code provides that:
A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware.
Clearly, this provision of the Canons does not apply to suspected tax evasion or fraud. The court is not an agent of the tax authorities.
In cases of obvious and egregious fraud, a judge should consider the possibility that his or her failure to report the fraud may undermine confidence in the integrity of the judiciary.
Canon 2 provides that:
A judge should respect . . . the law and should conduct himself at all times in a manner that promotes public confidence in the integrity . . . of the judiciary.
The decision as to whether and when a case rises to such a level must be made by the judge on a case-by-case basis.
If a judge makes a decision to report such facts to the appropriate tax authority, it is the recommendation of the Committee that the judge do simply that—report the facts without judgment.
At the end of the Code of Judicial Conduct is a section entitled ‘‘Reliance on Advisory Opinions’’ which provides that although the advisory opinions of the Judicial Ethics Committee are not binding upon the [Judicial Conduct Board and the Court of Judicial Discipline] and the Supreme Court of Pennsylvania, the opinions shall be taken into account in determining whether discipline should be recommended or imposed. The ‘‘rule of reliance’’ applies to this Formal Opinion. However, before engaging in contemplated conduct, any judge who, out of an abundance of caution, desires a Committee opinion which will provide advice about the judge’s particular set of facts and to which the ‘‘rule of reliance’’ will also apply, may submit an inquiry to a member of the Committee, ordinarily, a member serving in the judge’s Conference zone.
Source The provisions of this Formal Opinion 99-2 adopted December 10, 1999, effective December 11, 1999, 29 Pa.B. 6236.
§ 99-3. Judges and the Media.
A judge should not comment publicly about a proceeding pending before any court. Canon 3 provides, in pertinent part:
A judge should abstain from public comment about a pending proceeding in any court, and should require similar abstention on the part of court personnel subject to his direction and control. This subsection does not prohibit judges from making public statements in the course of their official duties or from explaining for public information the procedures of the court.
Commentary. ‘‘Court personnel’’ does not include the lawyers in a proceeding before a judge. The conduct of lawyers is governed by DR 7-107 of the Code of Professional Responsibility.
The Committee notes that Pennsylvania’s prohibition against public comment about pending proceedings is more restrictive than the Model Code of Judicial Conduct adopted by the American Bar Association in 1990. The Model Code provides as follows:
A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing (emphasis added).
The Committee suggests that the impact/fairness test of the Model Code is a good guide for deciding when a judge may make public statements in the course of his or her duties or explain the procedures of the court as permitted by Pennsylvania’s Code. If there is a danger that the statement may affect the outcome of a proceeding, the judge must refrain from public comment.
Canon 3 also provides very extensive and detailed regulations with regard to the relationship between the court and the electronic media.
A judge should prohibit broadcasting, televising, recording or taking photographs in the courtroom and areas immediately adjacent thereto during sessions of court or recesses between sessions . . .
The Canon then goes on to outline certain circumstances in which electronic broadcasting is permitted in ‘‘trial court non-jury civil proceedings.’’ The Canon specifically excludes support, custody and divorce proceedings from his section.
A judge must be particularly circumspect with regard to criminal matters. Rule 326 of the Rules of Criminal Procedure provides specific guidelines to be followed in widely publicized or sensational cases. Rule 327 places specific limitations on court personnel. Finally, Rule 328 places very specific limitations on photography and broadcasting in the courtroom and its environs:
The taking of photographs in the courtroom or its environs or radio or television broadcasting from the courtroom or its environs during the progress of or in connection with any judicial proceedings, whether or not the court is actually in session, is prohibited. The environs of the courtroom is defined as the area immediately surrounding the entrances and exits to the courtroom.
This rule is not intended to prohibit the taking of photographs or radio or television broadcasting of proceedings such as naturalization ceremonies or the swearing in of public officials which may be conducted in the courtroom.
Once again, while the rules carefully circumscribe the coverage of matters pending before the court, they do not completely prohibit contact with the medica. Canon 3 specifically permits public discussion of the work of the court. If, for instance, the court is establishing a new program, a judge may, in the course of his or her responsibilities, properly discuss the new program with the media, as long as the judge is careful to refrain from comment on any pending matter.
At the end of the Code of Judicial Conduct is a section entitled ‘‘Reliance on Advisory Opinions’’ which provides that although the advisory opinions of the Judicial Ethics Committee are not binding upon the [Judicial Conduct Board and the Court of Judicial Discipline] and the Supreme Court of Pennsylvania, the opinions shall be taken into account in determining whether discipline should be recommended or imposed. The ‘‘rule of reliance’’ applies to this Formal Opinion. However, before engaging in contemplated conduct, any judge who, out of an abundance of caution, desires a Committee opinion which will provide advice about the judge’s particular set of facts and to which the ‘‘rule of reliance’’ will also apply, may submit an inquiry to a member of the Committee, ordinarily, a member serving in the judge’s Conference zone.
Source The provisions of this Formal Opinion 99-3 adopted December 10, 1999, effective December 11, 1999, 29 Pa.B. 6236.
§ 00-1. Signing Nominating Petitions.
(a) Majority Opinion.
The Committee has received several requests for advice asking whether it is permissible for a judge to sign a candidate’s nomination petition. Because of the importance of this issue throughout the Commonwealth, the Committee issues this Formal Opinion. A bare majority of the Committee is of the opinion that signing a nomination petition is prohibited; a minority of the Committee is of the opinion that signing a nomination petition is permitted.
Candidates for elective office who wish to have their names placed on the ballot for the primary election of a major political party must obtain a certain number of signatures of the voters of the party on a nomination petition. See generally 25 P. S. sections 2862, 2869.
Code of Judicial Conduct 7A (1)(b) prohibits a judge or candidate for judicial office from publicly endorsing a candidate for public office except as authorized by section 7A (2). Code of Judicial Conduct 7A (2) permits a judge holding an office filled by public election between competing candidates, or a candidate for such office, among other things, ‘‘to speak on behalf of any other judicial candidate for the same office.’’
Code of Judicial Conduct 7A (4) prohibits a judge from engaging ‘‘in other political activity except on behalf of measures to improve the law, the legal system, or the administration of justice.’’
A majority of the Committee joins the Florida Committee and concludes that a judge may not sign a candidate’s nomination petition. Florida Committee on Standards of Conduct for Judges Opinion 92-32. A majority of the Committee declines to follow other committees which have permitted signing.
Note
Arizona (Judicial Ethics Advisory Opinion 96-7) permits signing under certain circumstances. New York (Advisory Committee on Judicial Ethics Opinion 89-89), which permits signing, prohibits participation in any political campaign, but unlike Pennsylvania, does not expressly prohibit publicly endorsing a candidate. Tennessee (Opinion 90-4), which permits signing, prohibits publicly endorsing a candidate and taking a public petition on political issues. New Mexico (Judicial Advisory Opinion 96-01), which permits signing, has a less restrictive prohibition on endorsing than Pennsylvania. New Mexico prohibits publicly endorsing a candidate through the news media or in campaign literature. Michigan (Judicial Tenure Commission Advisory Opinion 25 (July 23, 1981)), which permits signing, unlike Pennsylvania does not have an express general prohibition against political activity.
Signing a nomination petition is the legal equivalent of a public endorsement and public endorsements are prohibited by Code of Judicial Conduct 7A (1)(b). Signing a nomination petition is not similar to exercising the right to vote. For example, voting is private. In contrast, a nomination petition is public; it is filed with the Department of State and is available for public inspection.
Note
Although the majority is aware that other committees have concluded otherwise, e.g., New York (Advisory Committee on Judicial Ethics Opinion 89-89); New Mexico (Judicial Advisory Opinion 96-01); Arizona (Judicial Ethics Advisory Opinion 96-7), the majority of the Committee rejects that view.
Moreover, the demographics of Pennsylvania suggest that signing nomination petitions would in most, if not all, judicial districts of small population be more likely to produce more harm than good and it is not appropriate for the conduct in question to have two entirely opposite results depend solely upon the size of the population of a judicial district.
The election process routinely causes or leads candidates to seize upon whatever tactical advantages exist without regard for undesirable collateral effects. When a judge signs a nomination petition often, especially in judicial districts with small populations, the candidate may publicize it as an endorsement regardless of the signer’s intent. Because the judge in exercising the right to sign a nomination petition may prove to be one of the many casualties of an election war despite the judge’s best efforts to stay off the field of battle, a uniform prohibition on signing nomination petitions is required.
Further, signing a nomination petition is prohibited as other political activity under Code of Judicial Conduct 7A (4).
Therefore, a majority of the Committee concludes that a judge is prohibited from signing a nomination petition.
(b) Dissenting Opinion.
A substantial minority of the Committee is of the opinion that a judge may sign a nomination petition of a candidate. This opinion agrees with the clear majority of other ethics committees which have addressed the issue. New York (Advisory Committee on Judicial Ethics Opinion 89-89), Tennessee (Opinion 90-4), New Mexico (Judicial Advisory Opinion 96-01), Michigan (Judicial Tenure Commission Advisory Opinion 25 (July 23, 1981)), and Arizona (Judicial Ethics Advisory Opinion 96-7) all permit signing a nomination petition.
Note
We do not agree with the single committee, Florida’s committee, which has expressed a contrary view. Florida Committee on Standards of Conduct for Judges Opinion 92-32.
Signing a nomination petition is not the legal equivalent of a public endorsement. It is merely an act to permit a candidate to stand for election in a primary. It is similar to exercising the right to vote. New York (Advisory Committee on Judicial Ethics Opinion 89-89); New Mexico (Judicial Advisory Opinion 96-01); Arizona (Judicial Ethics Advisory Opinion 96-7).
The Arizona Judicial Ethics Advisory Opinion 96-7 states:
A nominating petition does not contain a promise to vote for the nominee or any endorsement of the nominee. The restriction on the number of petitions that any given elector may sign appears to be a device to ensure the earnestness of signatories and does not imply an endorsement. Accordingly, we find nothing inappropriate in the signing of a petition. Such activity is normal participation in the political process by a voter that Canon 5A intends to permit.
Moreover, the right to vote is a fundamental right. A Code of Judicial of Conduct provision which infringes upon a judge’s fundamental right may be unconstitutional. E.g., Matter of Sanders, 955 P.2d 369 (Wash. 1998) (First Amendment right outweighs Canons of Judicial Conduct).
The possibility that candidates may publicize the judge’s signing as evidence of the judge’s support is not sufficient to restrict judges from exercising their rights. A judge should not be stripped of the right to sign a nomination petition merely because candidates may improperly exploit the situation; the judge’s right should not be lost because of the conduct of others.
Not all political activity is prohibited by Canon 7. Canon 7A (4) is a ‘‘catch-all’’ provision which prohibits a judge from engaging in political activity other than the activities specifically prohibited or permitted in Canon 7A (1) through 7A (3), and other than measures to improve the law, the legal system, or the administration of justice. The title to the Canon itself says that ‘‘a Judge should refrain from political activity inappropriate to his judicial office.’’ Furthermore, Canon 7A (1)(b) and (c) specifically except from the prohibitions contained therein the activities authorized by Canon 7A (2). Canon 7A (2) authorizes the activities therein described for ‘‘[a] judge holding an office filled by public election between competing candidates . . .’’ This is every judge in Pennsylvania, because all judicial offices in Pennsylvania are filled by such public election. In addition, voting is part of the political process, yet obviously, it also is not prohibited by the ‘‘other political activity’’ mentioned in Canon 7A (4).
The political activity forbidden by Canon 7A (4) is activity, other than that specifically prohibited or authorized by Canon 7, which is designed to persuade others to achieve a political result. Simply signing a nomination petition is not activity designed to persuade others to achieve a political result. It is a simply an act of one individual which when combined with the similar and independent acts of a sufficient number of other individuals permits a candidate’s name to be placed on the ballot. By signing, a judge is acting as an individual, not as a judge, and he or she is not attempting to persuade others to sign the candidate’s nomination petition any more than the act of voting is an attempt to persuade others to vote for a particular candidate.
In contrast, a judge may not solicit others to sign a nomination petition and may not circulate a nomination petition. Accord New York (Advisory Committee on Judicial Ethics Opinion 89-89); contra New Mexico (Judicial Advisory Opinion 96-01). Those activities are attempts to influence others which are political activities forbidden by Canon 7A (4).
Source The provisions of this § 00-1 adopted April 28, 2000, 30 Pa.B. 2125.
§ 02-1. Time Withdrawn Judicial Candidates Must End Fund Raising.
The Committee has received several requests for advice asking when judicial candidates who have withdrawn their candidacy must end fund raising. Because of the importance of this issue throughout the Commonwealth, the Committee issues this Formal Opinion.
History of Pennsylvania law
Effective January 1, 1999 the Supreme Court amended Canon 7B (2) of the Code of Judicial Conduct to expressly provide that fund raising of a judicial campaign must end ‘‘no later than the last calendar day of the year in which the judicial election is held.’’ Before the amendment the Code did not expressly provide when fund raising must end. However, before the amendment this Committee had decided that after an election, a judge could have only one fund raiser, the judge could not attend, and the fund raiser was required to be held within 6 months after the judge was sworn in.
The Pennsylvania Code of Judicial Conduct does not expressly address the time when a withdrawn judicial candidate must end fund raising.
Other Jurisdictions
In contrast to Pennsylvania, the Ohio Code of Judicial Conduct expressly provides the time when defeated or withdrawn judicial candidates must end fund raising. That time is the earlier of the time the campaign debt is paid off or 120 days after the defeat or withdrawal. Ohio Code of Judicial Conduct 7(C)(4)(b),(c). Candidates who participate in the general election may raise funds until 120 days after the general election. Ohio Code of Judicial Conduct 7(C)(4)(a).
In New York judicial candidates who do not run in the general election can raise funds for six months after the primary, convention, caucus, or meeting. New York Codes, Rules and Regulations sections 100.0 (Q), 100.5 (A)(5). Candidates who run in the general election may raise funds for six months after the general election. Id.
Some other jurisdictions measure the ending time for fund raising from the number days after the last election in which the candidate participates during the election year and do not expressly address withdrawn candidates. E.g., Nebraska Code of Judicial Conduct 5C (2) (30 days); Washington Code of Judicial Conduct 7B (2) (60 days); North Dakota Code of Judicial Conduct 5C (2) (90 days); Alabama Canons of Judicial Ethics 7B (4)(b) (120 days). The 1972 American Bar Association Model Code of Judicial Conduct and the 1990 American Bar Association Model Code of Judicial Conduct provide for 90 days.
The Kentucky Code of Judicial Conduct prohibits any fund raising after the general election. Kentucky Rules of the Supreme Court 4.300, Code of Judicial Conduct 5B (2).
Louisiana permits post election fund raising only for the purpose of extinguishing campaign debt resulting from that election. Louisiana Code of Judicial Conduct 7D (3).
Rationale for the Committee’s Opinion
Pennsylvania Code of Judicial Conduct 7B (2) provides in pertinent part:
A candidate’s committees may solicit funds for his campaign no earlier than thirty (30) days prior to the first day for filing nominating petitions or the last day for filing a declaration of intention to seek reelection on a retention basis, and all fundraising activities in connection with such judicial campaign shall terminate no later than the last calendar day of the year in which the judicial election is held.
(Emphasis added).
The Committee observes that the Code limits candidates who participate in the general election to a post election fund raising period of less than sixty days, i.e. from the date after the general election (which is held in November) to December 31. The Committee considered whether candidates who withdraw should be limited to fund raising after their withdrawal by the same number of days as candidates who participate in the general election have after the general election, a period of less than sixty days. However, because the language of the Code provides the date by which fund raising must end rather than the number of days after the general election and does not refer to the general election in selecting the ending date, the Committee rejected the view that fund raising must end by a period of less than sixty days after the candidate withdraws, i.e. the number of days a candidate in the general election would have to fund raise after the general election.
However, as indicated by the above underlined portions of the Code, in addition to the December 31 cut off date, the Code limits fund raising ‘‘for his campaign’’ and ‘‘in connection with such judicial campaign.’’ These limits require that a withdrawn judicial candidate end fund raising when the campaign debt has been extinguished. The reason is that for a withdrawn candidate, because such judicial campaign has ended, any fund raising after the debt has been extinguished could not be for ‘‘such judicial campaign.’’ To give effect to all the provisions of Code of Judicial Conduct 7B (2), a withdrawn judicial candidate must end fund raising when the campaign debt has been extinguished or by December 31 of the election year, whichever occurs first.
Source The provisions of this section 02-1 adopted March 16, 2002, 32 Pa.B. 1386.
§ 11-1. [Reserved].
Source The provisions of this § 11-1 adopted December 24, 2011, 41 Pa.B. 6876; reserved July 31, 2015, 45 Pa.B. 4156. Immediately preceding text appears at serial pages (370706) to (370708) and (373689).
§ 14-1. Social Activities.
The Ethics Committee of the Pennsylvania Conference of State Trial Judges (the ‘‘Committee’’) regularly receives inquiries regarding the propriety of judges attending social activities.i By order of the Supreme Court of Pennsylvania, a new Code of Judicial Conduct (the ‘‘new Code’’) became effective on July 1, 2014. Although the new Code is more expansive than, and in some respects significantly different from, the prior Code of Judicial Conduct (‘‘the old Code’’), many of the relevant provisions of the old Code have been incorporated into the new Code. The Committee has issued a body of informal opinions under the old Code. It now issues this Formal Opinion to provide broad guidance to those subject to the new Code as they transition to its provisions.ii
As is always the case, if a judge has a specific question concerning the application of these general guidelines to his or her prospective behavior, and wishes to enjoy the rule of reliance on the Committee’s advice,iii the judge should make a written request for advice from the Committee.
Social Activitiesiv
In general, inquiries to the Committee concerning social activities have involved (A) attorneys, law firms and attorney associations; (B) charitable organizations; and (C) other types of events.
A. Social Activities Involving Attorneys, Law Firms and Attorney Associations
The Committee has approved attendance at the following social activities sponsored by attorneys, law firms and attorney organizations under the old Code; and, as a general matter, the result would be the same under the new Code:v
• A ceremonial and social function held by a plaintiffs’ bar association. (2/21/01)
• A bar association event held at a private law firm. (4/16/01)
• A summer associate reception at a law firm where the judge’s spouse is a partner. No clients will be in attendance; and all spouses/significant others are invited. (5/27/07)
• A plaintiffs’ bar association awards dinner which is a fund raising event. (10/1/09)
• A CLE program conducted by a criminal defense organization where the program has been approved for CLE credit, is open to the general bar, is held in a public forum, and is free to judges. (4/28/10)
• A charity concert at a public venue when the tickets were purchased for the judge and the judge’s spouse by the spouse’s firm. The judge will not be sitting with the firm’s clients. (5/7/10)
• The wedding of a former law clerk, who is now a local lawyer not currently involved in litigation before the judge. (9/19/12)
• A public event in a law firm’s sky box suite where the firm has not appeared before the judge in any civil/criminal matter. (2/28/13)
The Committee has advised attendance at the following events could be violative of the old Code; and, as a general matter, the result would be the same under the new Code:
• Judge may not serve as a keynote speaker before an insurance industry group. (9/8/03)
• A legal seminar conducted solely for the members of the sponsoring firm. (9/8/04)
• A seminar given only for members of a certain law firm at the firm’s office. (6/20/05)
• A spouse’s firm retreat (including dinners and social events), even where the judge pays for his/her own airfare, lodging, and food.
• The retreat includes a dinner where the spouse would entertain clients and the judge would attend as the spouse’s guest. (4/5/06)
• A private firm event featuring a well-known political commentator. The event is not held at the firm, but clients and prospective clients of the firm will be present. (9/15/08)
• A private party following a charity concert where the party is held by a spouse’s firm for the purpose of entertaining clients. (5/7/10)
• An event open to the general bar, sponsored by a nonprofit, and held at a private law firm. The title of the event indicates that judges will be featured attendees. (8/26/10)
• An award breakfast honoring a retired U. S. Supreme Court Justice where clients of the firm will attend. (5/28/13)
In deciding whether to attend social functions sponsored by attorneys, law firms, and attorney associations, a judge should review the following non-exhaustive list of considerations implicated by the Code:
1. Is the event intended to improve the law, the legal system, or the administration of justice, or is it purely a social function?
2. Are the sponsoring attorneys currently involved or likely to be involved in litigation before the judge?
3. Is the event held at a law firm or off site?
4. Is attendance limited to attorneys in the sponsoring firm or is it open to other attorneys and/or the general public?
5. Will the firm’s clients or potential clients attend the event?
6. Will an appearance at the social event convey the impression that the sponsors are in a special position to influence the judge?
7. Will the judge’s presence be advertised in advance of the event or will the judge be recognized during the event?
8. In the case of an event sponsored by an attorney association, is the function limited to one sector of the bar, such as the plaintiffs’ bar, defense counsel, prosecutors, etc.?
9. Will attendance at the function call into question the judge’s impartiality?
10. Will attendance interfere with the performance of the judge’s judicial duties?
B. Social Activities Sponsored by Charitable Organizations
The old Code stated judges were not permitted to ‘‘. . . solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of their office for that purpose . . . [or] . . . be a speaker or the guest of honor at an organization’s fundraising events, but they may attend such events.’’vi Accordingly, under the old Code the Committee approved attendance at the following social events sponsored by charitable organizations while, in some cases, noting particular concerns about the event:vii
• A nonprofit organization’s fundraising event; however, where the judge would be given a free ticket to the event, there was concern that the organization intended to showcase the judge, which would be prohibited. (2/5/99)
• A charitable event if the judge is not being showcased as a means to encourage others to contribute. (4/11/05)
• A charitable event including a free ticket, if doing so would not reflect adversely on impartiality, interfere with the judge’s ability to perform, or give the appearance of impropriety. (4/11/05)
• A Citizens’ Crime Commission (a 501(c)(3) nonprofit) cocktail party as long as the judge is neither listed in the program nor an honoree. (2/28/06)
• A ‘‘Dancing with the Stars’’ event, when the judge’s name is not used in advance publicity; the judge is identified at the dance by name, not title; the judge will be identified in the program as ‘‘guest dancer;’’ the judge will purchase his own ticket; and attendees will not bid on the judge’s dance or pay extra because the judge is participating. (1/21b/2009)
Under the new Code, Rule 3.7(B)(2) permits judges to be a guest speaker or guest of honor at fundraising dinners or events that are for the advancement of the legal system, and have their name listed in the program; but, otherwise, the new Code continues to prohibit judges from being the guest speaker or guest of honor at fundraising dinners or events for other causes.
With respect to a judge receiving a free ticket to an event, or receiving other things of value, Rule 3.13(A) of the new Code prohibits such acceptance if ‘‘. . . prohibited by law or would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.’’ However, subject to Rule 3.13(A) and the reporting requirements of Rule 3.15, Rule 3.13(C) permits judges to accept ‘‘. . . invitations to the judge and the judge’s spouse, domestic partner, or guest to attend without charge: (a) an event associated with a bar-related function or other activity relating to the law, the legal system, or the administration of justice; or (b) an event associated with any of the judge’s educational, religious, charitable, fraternal or civic activities permitted by this Code, if the same invitation is offered to nonjudges who are engaged in similar ways in the activity as is the judge. . . .’’
Faced with reduced budgets and shrinking charitable contributions, organizations have turned to novel and creative fundraising efforts to swell the crowd or otherwise raise money by involving judges. Examples of using a judge as an attraction or celebrity participant include ‘‘Dancing with the Stars’’ events, competing with judges in sporting events, and the judge as a celebrity auctioneer. While celebrities and other government officials may lend their personal or professional status to an organization’s fundraising efforts, a judge is prohibited from doing so. A judge may not permit an organization to capitalize on or exploit his or her attendance at or participation in such an event by advertising that fact on invitations or other promotional materials in advance of an event that is not for the advancement of the legal system. A judge who allows himself or herself to be used in this manner is engaged in the solicitation of funds in direct violation of the Code. These prohibitions apply regardless of the worthiness of the charity. See Formal Opinion 2011-1 (Certain Fundraising Activities).
Most importantly, the judge must determine whether he/she is the ‘‘draw’’ for the charitable activity and, if so, decline the invitation. If the judge will be ‘‘showcased,’’ thus allowing the prestige of the office to be used for the benefit of a charity that is not for the advancement of the legal system, the judge is prohibited from attending.
C. Other Types of Social Activities
Many social events fall outside the basic categories outlined in this Formal Opinion and can only be addressed on a case-by-case basis. Attendance at the following events was permitted by the Committee under the old Code based upon the specific facts represented in the inquiry:
• The inauguration of a university president and related social events. (9/6b/00)
• An elected official’s inaugural ball. (12/17/01)
• A judicial symposium held by a nonpartisan group including lodging, meals, and money to defray transportation costs. (12/14b/04)
• A privately funded seminar with a partisan agenda, if the identity of the sponsors is publicized. (12/14b/04)
However, the Committee advised against accepting dinner at a private club as the guest of a senior judge whom the inquiring judge recently appointed in several cases. (12/12/13)
Conclusion
Judges must expect to be the subject of constant public scrutiny. They must freely and willingly accept restrictions on their conduct that might be viewed as burdensome by the ordinary citizen. This does not mean, however, that judges must isolate themselves from society or decline all social invitations. Indeed, the new Code continues to encourage judges to be involved in the communities in which they serve. However, the need to maintain an impartial and independent judiciary gives rise to special concerns. Accordingly, judges must carefully consider the ramifications of all social activities, both personal and judicial, to ensure that they uphold the independence, integrity, and impartiality of the judiciary, avoid impropriety and the appearance of impropriety, and do not lend the prestige of their office to advance the private interests of others. To that end, therefore, judges must be attentive to strictures that continue to be imposed by the new Code in relation to social activities. These include factors to be considered in deciding whether to attend social functions sponsored by attorneys, law firms, and attorney associations as well as social events sponsored by charitable organizations.
This Formal Opinion is intended to provide judges with broad guidance regarding one of the Ethics Committee’s most frequent areas of inquiry. And judges are reminded that to enjoy the rule of reliance on the Committee’s advice, they should make a written request for advice from the Committee tailored to the particular situation confronted. If a judge has a question concerning the application of these guidelines, the judge should make a written request for advice from a member of the Committee. The new Code provides that, although such opinions are not per se binding on the Judicial Conduct Board, the Court of Judicial Discipline, or the Supreme Court of Pennsylvania, action taken in reliance thereon shall be considered in determining whether discipline should be recommended or imposed.
i This Formal Opinion does not purport to address political events.
ii While the entire new Code is relevant, the following are the particularly relevant provisions of the new Code:
Canon 3: A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.
Rule 3.1. Extrajudicial Activities in General.
Judges shall regulate their extrajudicial activities to minimize the risk of conflict with their judicial duties and to comply with all provisions of this Canon. However, a judge shall not:
(A) Participate in activities that will interfere with the proper performance of the judge’s judicial duties;
(B) Participate in activities that will lead to frequent disqualification of the judge;
(C) Participate in activities that would reasonably appear to undermine the judge’s independence, integrity, or impartiality;
(D) Engage in conduct that would reasonably appear to be coercive; or
(E) Make use of court premises, staff, stationery, equipment, or other resources, except for incidental use for activities that concern the law, the legal system, or the administration of justice, or unless such additional use is permitted by law.
Comment [1]: To the extent that time permits, and judicial independence and impartiality are not compromised, judges are encouraged to engage in appropriate extrajudicial activities that concern the law, the legal system, and the administration of justice, such as by speaking, writing, teaching, or participating in scholarly research projects. In addition, judges are permitted and encouraged to engage in educational, religious, charitable, fraternal or civic extrajudicial activities not conducted for profit, even when the activities do not involve the law. See Rule 3.7.
Comment [2]: Participation in both law-related and other extra-judicial activities helps integrate judges into their communities, and furthers public understanding of and respect for courts and the judicial system.
Comment [3]: . . . a judge’s extrajudicial activities must not be conducted in connection or affiliation with an organization that practices invidious discrimination. See Rule 3.6.
Comment [4]: While engaged in permitted extrajudicial activities, judges must not coerce others or take action that would reasonably be perceived as coercive.
* * * * *
Rule 3.4. Appointments to Governmental Positions and Other Organizations.
(A) judge shall not accept appointment to a governmental committee, board, commission, or other governmental position, unless it is one that concerns the law, the legal system, or the administration of justice.
(B) A judge may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice. A judge shall not personally solicit funds but may attend fundraising events for such organizations.
(C) Senior judges eligible for recall to judicial service may accept extrajudicial appointments not permitted by Rule 3.4(B) but during the term of such appointment shall refrain from judicial service.
Comment [1]: Rule 3.4 implicitly acknowledges the value of judges accepting appointments to entities that concern the law, the legal system, or the administration of justice. Even in such instances, however, a judge should assess the appropriateness of accepting an appointment, paying particular attention to the subject matter of the appointment and the availability and allocation of judicial resources, including the judge’s time commitments, and giving due regard to the requirements of the independence and impartiality of the judiciary.
Comment [2]: A judge may represent his or her country, state, or locality on ceremonial occasions or in connection with historical, educational, or cultural activities. Such representation does not constitute acceptance of a governmental position.
* * * * *
Rule 3.6. Affiliation with Discriminatory Organizations.
(A) A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, disability or sexual orientation.
(B) A judge shall not use the benefits or facilities of an organization if the judge knows or should know that the organization practices invidious discrimination on one or more of the bases identified in paragraph (A). A judge’s attendance at an event in a facility of an organization that the judge is not permitted to join is not a violation of this Rule when the judge’s attendance is an isolated event that could not reasonably be perceived as an endorsement of the organization’s practices.
Comment [1]: A judge’s public manifestation of approval of invidious discrimination on any basis gives rise to the appearance of impropriety and diminishes public confidence in the integrity and impartiality of the judiciary. A judge’s membership in an organization that practices invidious discrimination creates the perception that the judge’s impartiality is impaired.
Comment [2]: An organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, sex, gender, religion, national origin, ethnicity, disability or sexual orientation persons who would otherwise be eligible for admission. Whether an organization practices invidious discrimination is a complex question to which judges should be attentive. The answer cannot be determined from a mere examination of an organization’s current membership rolls, but rather, depends upon how the organization selects members, as well as other relevant factors, such as whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members, or whether it is an intimate, purely private organization whose membership limitations could not constitutionally be prohibited.
Comment [3]: When a judge learns that an organization to which the judge belongs engages in invidious discrimination, the judge must resign immediately from the organization.
Comment [4]: A judge’s membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of this Rule.
Comment [5]: The Rule does not apply to national or state military service.
Rule 3.7. Participation in Educational, Religious, Charitable, Fraternal or Civic Organizations and Activities.
(A) Avocational activities. Judges may write, lecture, teach, and speak on non-legal subjects and engage in the arts, sports, and other social and recreational activities, if such avocational activities do not detract from the dignity of their office or interfere with the performance of their judicial duties.
(B) Civic and Charitable Activities. Judges may participate in civic and charitable activities that do not reflect adversely upon their impartiality or interfere with the performance of their judicial duties. Judges may serve as an officer, director, trustee, or nonlegal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:
(1) A judge shall not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court.
(2) A judge shall not personally solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of the judicial office for that purpose, but may be listed as an officer, director, or trustee of such an organization. A judge shall not be a speaker or the guest of honor at an organization’s fundraising events that are not for the advancement of the legal system, but may attend such events.
(3) A judge shall not give investment advice to such an organization.
(C) Notwithstanding any of the above, a judge may encourage lawyers to provide pro bono publico legal services.
Comment [1]: The nature of many outside organizations is constantly changing and what may have been innocuous at one point in time may no longer be so. Cases in point are boards of hospitals and banks. Judges must constantly be vigilant to ensure that they are not involved with boards of organizations that are often before the court.
Comment [2]: Judges are also cautioned with regard to organizations of which they were members while in practice, and/or in which they remain members, such as the District Attorney’s organization, the Public Defender’s organization, and MADD, as examples only. Review should be made to make sure that a reasonable litigant appearing before the judge would not think that membership in such an organization would create an air of partiality on the part of the tribunal.
* * * * *
Rule 3.13. Acceptance of Gifts, Loans, Bequests, Benefits, or Other Things of Value.
(A) A judge shall not accept any gifts, loans, bequests, benefits, or other things of value, if acceptance is prohibited by law or would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.
(B) Unless otherwise prohibited by law, or by paragraph (A), a judge may accept the following without publicly reporting such acceptance:
* * * * *
(3) ordinary social hospitality
* * * * *
(8) gifts, awards, or benefits associated with the business, profession, or other separate activity of a spouse, a domestic partner, or other family member of a judge residing in the judge’s household, but that incidentally benefit the judge.
(C) Unless otherwise prohibited by law or by paragraph (A), a judge may accept the following items, and must report such acceptance to the extent required by Rule 3.15:
(1) gifts incident to a public testimonial;
(2) invitations to the judge and the judge’s spouse, domestic partner, or guest to attend without charge:
(a) an event associated with a bar-related function or other activity relating to the law, the legal system, or the administration of justice; or
(b) an event associated with any of the judge’s educational, religious, charitable, fraternal or civic activities permitted by this Code, if the same invitation is offered to nonjudges who are engaged in similar ways in the activity as is the judge; and
(3) gifts, loans, bequests, benefits, or other things of value, if the source is a party or other person, including a lawyer, who has come or is likely to come before the judge, or whose interests have come or are likely to come before the judge.
(D) A judge must report, to the extent required by Rule 3.15, gifts, loans, bequests, benefits, or other things of value received by the business, profession, or other separate activity of a spouse, a domestic partner, or other family member of a judge residing in the judge’s household, if the source is a party or other person, including a lawyer, who has come or is likely to come before the judge, or whose interests have come or are likely to come before the judge.
Comment [1]: Whenever a judge accepts a gift or other thing of value without paying fair market value, there is a risk that the benefit might be viewed as a means to influence the judge’s decision in a case. Rule 3.13 restricts the acceptance of such benefits, according to the magnitude of the risk. Paragraph (B) identifies circumstances in which the risk that the acceptance would appear to undermine the judge’s independence, integrity, or impartiality is low, and explicitly provides that such items need not be publicly reported. As the value of the benefit or the likelihood that the source of the benefit will appear before the judge increases, the judge is prohibited under para
* * * * *
Comment [4]: Rule 3.13 applies only to acceptance of gifts or other things of value by a judge. Nonetheless, if a gift or other benefit is given to the judge’s spouse, domestic partner, or member of the judge’s family residing in the judge’s household, it may be viewed as an attempt to evade Rule 3.13 and influence the judge indirectly. This concern is reduced if the judge merely incidentally benefits from a gift or benefit given to such other persons. A judge should, however, inform family and household members of the restrictions imposed upon judges, and urge them to consider these restrictions when deciding whether to accept such gifts or benefits.
* * * * *
In addition, the following are over-arching principles implicated generally in determining whether a judge may attend or otherwise participate in social functions: Canon 1 (‘‘[a] judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety’’); Rules 1.1 (judge to comply with the law) and 1.2 (judge to promote public confidence in the judiciary); and Comments 1 (principles apply to both the professional and personal conduct of a judge), 2 (judge to accept restrictions that might be viewed as burdensome if applied to other citizens), 3 (rule necessarily cast in general terms), 4 (judge to promote ethical conduct and support professionalism within the judiciary and legal profession), 5 (test for appearance of impropriety is whether conduct ‘‘would create in reasonable minds a perception’’ that the judge violated Code or engaged in ‘‘other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as judge,’’ and 6 (judge to act in manner consistent with Code while participating in outreach activities), Rule 1.3 (judge not to abuse the prestige of judicial office to advance personal or economic interests of the judge or others, or allow others to do so), and Comment 1; and Canon 2 (‘‘A judge shall perform the duties of judicial office impartially, competently, and diligently’’); Rule 2.1 (duties of judicial office ordinarily take precedence over judge’s personal and extrajudicial activities), and Comments 1 (judge to arrange personal and extrajudicial activities to minimize interference with judge’s duties) and 2 (judge to minimize risk of conflicts that would result in frequent disqualification), Rule 2.4 (B) (judge not to permit social interests or relationships to influence judicial conduct or judgment), and Rule 2.4 (C) (judge not to convey or permit others to convey impression judge can be influenced) and Comment (confidence in judiciary eroded if judicial decision-making is perceived to be subject to inappropriate outside influences).
The Terminology section of the new Code provides the following definitions:
Impartial, impartiality, impartially—Absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.
* * * * *
Impropriety—includes conduct that violates the law, court rules, or provisions of this Code, and conduct that undermines a judge’s independence, integrity, or impartiality.
Independence—A judge’s freedom from influence or controls other than those established by law or Rule.
Integrity—Probity, fairness, honesty, uprightness, and soundness of character.
iii Under both the old Code and the new Code, the Committee is designated by the Supreme Court ‘‘as the approved body to render advisory opinions regarding ethical concerns involving judges . . . subject to the Code of Judicial Conduct.’’ As both Codes further provide, ‘‘Although such opinions are not, per se, binding upon the Judicial Conduct Board, the Court of Judicial Discipline or the Supreme Court of Pennsylvania,’’ action taken in reliance thereon and pursuant thereto ‘‘shall be taken into account in determining whether discipline should be recommended or imposed.’’
iv For purposes of this Opinion, the words ‘‘activities,’’ ‘‘events,’’ and ‘‘functions’’ are used interchangeably.
v Each Ethics Committee Opinion is based on a specific set of facts outlined by the inquiring judge. These facts may not be fully set forth in the Digest version of the Opinion (for example, to maintain the confidentiality of the inquirer). Readers are cautioned that the Judicial Conduct Board, the Court of Judicial Discipline, and/or the Supreme Court will only consider a judge’s reliance on an advisory opinion rendered in response to that judge’s personal inquiry (not an Opinion rendered to another judge) in determining whether discipline should be recommended or imposed.
vi Canon 5B(2) of the old Code.
vii See Footnote 2. graph (A) from accepting the gift, or required under paragraph (C) and (D) to publicly report it.
Source The provisions of this § 14-1 adopted September 26, 2014, 44 Pa.B. 6083.
§ 15-1. Letters of Reference.
The Ethics Committee of the Pennsylvania Conference of State Trial Judges (‘‘the Committee’’) regularly receives inquiries regarding the propriety of sending letters of reference and other similar communications. Because of the frequency of such inquiries, the Committee issued Formal Opinions 93-1 and 98-1 to provide guidance to judicial officers subject to the Code of Judicial Conduct with respect to such matters. By Order of the Supreme Court of Pennsylvania a new code of Judicial Conduct became effective July 1, 2014 (‘‘New Code’’). The Committee issues this Formal Opinion to bring its advice in conformity with the New Code, and it supersedes Formal Opinions 93-1 and 98-1.
Under the New Code the overarching principle embodied in Canon 1 is now mandatory. Therefore, as with any inquiry, a judge’s analysis of what conduct is or is not prohibited commences with the application of Canon 1 to the conduct.
Canon 1 of the Code of Judicial Conduct provides that:
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
The Committee has recognized, as have other advisory bodies on judicial conduct throughout the country, that judges are sometimes requested to write letters of reference or similar communications on behalf of persons with whom the judge is familiar. New Rule 1.3 and Comment 2 thereto specifically address letters of reference and provide:
Rule 1.3
Avoiding Abuse of the Prestige of Judicial Office
A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.
Comment 2
A judge may provide a reference or recommendation for an individual based upon the judge’s personal knowledge. The judge may use official letterhead if the judge indicates that the reference is personal and if there is no likelihood that the use of the letterhead would reasonably be perceived as an attempt to exert pressure by reasons of the judicial office.
In order to bring consistency to our decisions in this regard and provide guidance to judicial officers subject to the New Code, the Committee has adopted the following guidelines with regard to writing letters of reference:
(1) A judge should never write a letter of reference for a person he or she does not personally know.
(2) A judge may write a letter of reference if it is the type of letter that would be written in the ordinary course of business (e.g., a court employee seeking a reference with regard to the employee’s work history) or a judge’s personal relationship. The letter should include a statement of the source and extent of the judge’s personal knowledge.
(3) The letter should ordinarily be addressed and mailed directly to the person or entity for whose information it is being written. On the other hand, if the judge is concerned that a letter addressed to a particular person or entity might be construed as the judge attempting to exert pressure by reason of the judicial office, e.g., in the case of a personal employee of the judge, such as a law clerk, who is seeking other employment, particularly with a lawyer or law firm before the court, the more general address and salutation of ‘‘To Whom It May Concern’’ may be used. Otherwise, the ‘‘blank check’’ letter ‘‘To Whom It May Concern’’ should be avoided as it can be abused more easily by being shopped around indiscriminately and beyond the judge’s knowledge or control more so than a letter addressed to a particular person. If the law clerk is still employed by the Court, the law clerk must comply with Rules 1.11(d) and 1.12(b) of the Rules of Professional Conduct and advise the judge if the clerk is seeking employment with any lawyer or firm appearing in front of the judge. The judge will have to determine whether it is advisable to make a recommendation under those circumstances, but the better course would be to wait until the pending matter has concluded.
(4) Letters of reference may be written by a judge for someone whom the judge knows personally and not professionally, such as a relative or close friend, if they are the type that the judge would normally be requested to write as a result of the judge’s personal relationship. The relationship should be such that the judge ordinarily would be disqualified from hearing that person’s case.
(5) Any letter that may be written by a judge may be written on official stationery as permitted by Rule 1.3, Comment (2).
(6) The letter of reference may not be written if the judge has reason to believe the letter may be used for purposes of litigation.
(7) These guidelines are not intended to contravene Rule 1701(e) of the Rules of Judicial Administration, which remains in effect and provides: ‘‘No judge or magisterial district judge shall testify voluntarily as a character witness.’’
To summarize, letters of reference may be written by a judge if they are of the type that would be written in the ordinary course of business or personal relationships. A judge must take care, however, to be sure that a person with an insubstantial relationship to him or her is not attempting to use the judge’s office to advance personal interests.
This Formal Opinion is intended to provide judicial officers subject to the New Code with broad guidance regarding one of the Committee’s most frequent areas of inquiry. Judicial officers are reminded that to enjoy the rule of reliance on the Committee’s advice, they should make a written request for advice from the Committee tailored to the particular situation confronted. If a judicial officer subject to the Code has a question concerning the application of these guidelines, he or she should make a specific, written request for advice from a member of the Committee. The New Code provides that, although such opinions are not per se binding on the Judicial Conduct Board, the Court of Judicial Discipline, or the Supreme Court of Pennsylvania, action taken in reliance thereon shall be considered in determining whether discipline should be recommended or imposed.
Source The provisions of this § 15-1 adopted April 10, 2015, 45 Pa.B. 1841.
§ 15-2. Affiliation with Discriminatory Organizations.
A function of the Ethics Committee of the Pennsylvania Conference of State Trial Judges (‘‘the Committee’’) is to provide guidance regarding ethical concerns to judicial officers subject to the Code of Judicial Conduct. The Code of Judicial Conduct that became effective on July 1, 2014, addressed, specifically, a judge’s affiliation with organizations that discriminate invidiously on the basis of race, sex, gender, religion, national origin, ethnicity, disability or sexual orientation. The Committee issues this Formal Advisory Opinion to assist judges on a matter of general importance to judicial officers subject to the Code. This Formal Advisory Opinion is general in nature. It does not address a particular entity or group of persons, and is not in response to a specific request for an advisory opinion from a judicial officer. Therefore, the ‘‘rule of reliance’’ set forth in Preamble (8) of the new Code does not apply to this Formal Advisory Opinion.1
I.
Prior to July 1, 2014, the Code of Judicial Conduct then in effect simply encouraged judges to promote ‘‘public confidence in the integrity and impartiality of the judiciary’’ and permitted judges to ‘‘participate in civic and charitable activities that do not reflect adversely upon their impartiality. . . .’’2 It did not specifically address membership in any organization or the use of its facilities.
However, the new Code, which became effective on July 1, 2014, addresses, specifically, a judge’s affiliation with organizations that discriminate invidiously on the basis of race, sex, gender, religion, national origin, ethnicity, disability or sexual orientation. Rule 3.6 of the Code provides:
Affiliation with Discriminatory Organizations.
(A) A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, disability or sexual orientation.
(B) A judge shall not use the benefits or facilities of an organization if the judge knows or should know that the organization practices invidious discrimination on one or more of the bases identified in paragraph (A). A Judge’s attendance at an event in a facility of an organization that the judge is not permitted to join is not a violation of this Rule when the judge’s attendance is an isolated event that could not reasonably be perceived as an endorsement of the organization’s practices.
1 Preamble (8) states:The Ethics Committee of the Pennsylvania Conference of State Trial Judges is designated as the approved body to render advisory opinions regarding ethical concerns involving judges, other judicial officers and judicial candidates subject to the Code of Judicial Conduct. Although such opinions are not, per se, binding upon the Judicial Conduct Board, the Court of Judicial Discipline or the Supreme Court of Pennsylvania, action taken in reliance thereon and pursuant thereto shall be taken into account in determining whether discipline should be recommended or imposed.
2 Canons 2 A and 5 B of the pre-July 1, 2014, Code of Judicial Conduct.
And Comment (3) to the Rule states:
When a judge learns that an organization to which the judge belongs engages in invidious discrimination, the judge must resign immediately from the organization.
II.
A. The ‘‘Organization’’
The Rule does not purport to reach informal, social groups. It is directed to an affiliation with a discriminatory ‘‘organization.’’ Nor does the Code define ‘‘organization.’’ Whether a particular group of persons or entity is an ‘‘organization’’ under the Rule may depend upon its formal level of structure. For example, whether it has by-laws, officers, or a mission statement; whether it is part of a hierarchy; and whether its membership is consistent and how they are added or replaced may be relevant factors in determining whether the group or entity is an ‘‘organization.’’
B. Discrimination
Use of the word ‘‘discrimination’’ often generates some confusion. As Robert K. Fullinwider wrote in The Reverse Discrimination Controversy (1980), at pp. 11-12:
The dictionary sense of ‘discrimination’ is neutral while the current political use of the term is frequently non-neutral, pejorative. With both a neutral and a non-neutral use of the word having currency, the opportunity for confusion in arguments about racial discrimination is enormously multiplied. For some, it may be enough that a practice is called discriminatory for them to judge it wrong. Others may be mystified that the first group condemns the practice without further argument or inquiry. Many may be led to the false sense that they have actually made a moral argument by showing that the practice discriminates (distinguishes in favor or against). The temptation is to move from ‘X discriminates’ to ‘X distinguishes in favor of or against’ to ‘X is wrong’ without being aware of the equivocation involved.
‘‘Discrimination’’ simply means differentiation. Rule 3.6 requires a determination of whether any differentiation, i.e. separate treatment, is based on any of the following classifications: race, sex, gender, religion, national origin, ethnicity, disability or sexual orientation. Those classifications are referred to here as the ‘‘protected classifications.’’
The Rule pertains to any practice of the organization that discriminates, or treats one differently, on the basis of any of the protected classifications. Separate treatment can take many forms, e.g. whether one can become or becomes a member of the organization, whether one is afforded a different class of membership within the organization, whether one is afforded access to the same facilities or other privileges of the organization, whether one can become an officer or director of the organization, etc. Any treatment that is different is discrimination, and the Rule addresses those practices that differentiate on the basis of any one of the protected classifications. It does not mean individuals who are members of a protected classification are entitled to preferential treatment; it means they are not to be treated differently because of their race, sex, gender, religion, national origin, ethnicity, disability or sexual orientation.
C. Invidious
Not all discrimination is unlawful, unethical or actionable under the Code. The Rule addresses discrimination that is ‘‘invidious.’’ The term ‘‘invidious’’ is not defined in the Code. Black’s Law Dictionary (7th ed.) defines ‘‘invidious discrimination’’ as ‘‘[d]iscrimination that is offensive or objectionable, esp. because it involves prejudice or stereotyping.’’ Definitions in other dictionaries include treating a class of persons unequally in a manner that is malicious, hostile or damaging; stigmatizing persons as inferior, odious or otherwise socially unacceptable; or in a way that is likely to arouse or incur resentment or anger. The court in Farber v. City of Paterson, 440 F.3d 131 (3d Cir. 2006), found discrimination invidious when the distinction is motivated by immutable characteristics which have no relationship to ability to perform or contribute to society.
Whether discrimination is ‘‘invidious’’ is a complex question that depends upon a variety of factors. Comment (2) to the Rule states:
[a]n organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of . . . [any of the protected classifications] persons who would otherwise be eligible for admission. Whether an organization practices invidious discrimination is a complex question to which judges should be attentive. The answer cannot be determined from a mere examination of an organization’s current membership rolls, but rather, depends upon how the organization selects its members, as well as other relevant factors, such as whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members, or whether it is an intimate, purely private organization whose membership limitations could not constitutionally be prohibited.
Other factors may include the history or purpose of the organization, whether the practices of the organization have a rational basis toward a legitimate purpose, and whether such practices are narrowly tailored to further that legitimate purpose. In short, the focus should be on the legitimacy of the distinguishing criteria employed to accomplish the organization’s stated goals and interests, as opposed to stigmatizing or denigrating those who may be affected.
III.
The Committee recognizes the existence of competing interests at play. There is the ‘‘expressive associational right’’ of an organization to exclude persons whose views may impair the ability of the group to express its views. There is the freedom of individuals to associate, which presupposes the freedom not to associate. There is the state’s interest in eliminating discrimination in education, employment, housing, public accommodations, etc. And there is the Supreme Court’s interest in having a ‘‘fair, honorable and impartial judiciary’’ as ‘‘indispensable to our system of justice,’’ by requiring judges to ‘‘avoid [ ] both impropriety and the appearance of impropriety in their professional and personal lives’’ by conducting themselves ‘‘in a manner that garners the highest level of public confidence in their independence, fairness, impartiality, integrity, and competence.’’3
3 Code of Judicial Conduct, Preamble (2) and (3).
The overarching purpose, or rationale, for Rule 3.6 is stated in Comment (1) to the Rule:
A judge’s public manifestation of approval of invidious discrimination on any basis gives rise to the appearance of impropriety and diminishes public confidence in the integrity and impartiality of the judiciary. A judge’s membership in an organization that practices invidious discrimination creates the perception that the judge’s impartiality is impaired.
This reference to the appearance of impropriety and the public’s confidence in the integrity and impartiality of the judiciary relates back to Canon 1 and Rule 1.2 of the Code.
Canon 1 provides:
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
Rule 1.2 provides:
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and appearance of impropriety.
In conducting any analysis, a judge must always be mindful of Canon 1 and Rule 1.2.4
In going through this analysis and applying these various factors, a judge must thoroughly investigate the history and purposes of the organization and fully understand the current policies and practices which are discriminatory. Also for a judge’s consideration are the role the local chapter, council, branch, lodge, agency, etc., plays in developing and implementing or enforcing those policies and practices, and the nature of the organization’s activities locally and in the broader geographic area where it operates.
Therefore, a judge must assess how the members of the public and the community which the judge serves perceive the organization and its policies and practices. A judge must determine whether membership would create in reasonable minds a perception that the judge violated the code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge. A judge should consider whether the perception of ‘‘reasonable minds’’ in the geographic area served by the judge might vary from that of ‘‘reasonable minds’’ in other areas of Pennsylvania, and whether or not that could, or should, make a difference.
In addition to these comments, appellate courts may provide a source of information on whether membership limitations are constitutionally permitted or prohibited. See, e.g., Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (organization engaging in qualified right of ‘‘expressive association’’ not required to accept members who may impair organization’s ability to advocate for its viewpoint). However, a judge must be aware that consideration of a constitutional challenge alone does not end the analysis under the Code. The mere fact the organization may have the constitutional right to discriminate does not necessarily mean a judge may be a member of it. In promulgating Rule 3.6, the Supreme Court is advancing its interests in trying to ensure a fair and impartial judiciary in which all citizens can have confidence. As the United States Supreme Court said in Dale:
4 Note, Comment (4) to the Rule provides that ‘‘[a] judge’s membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of this Rule.’’
. . . the freedom of expressive association, like many freedoms, is not absolute. We have held that the freedom could be overridden ‘‘by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.’’
Id., 530 U.S. at 648. The advisory opinions of ethics committees of other states on the particular subject may also assist the judge, but they, of course, are not binding on our Supreme Court or the Committee.
Ultimately, a judge must be guided by the underlying purposes of Rule 3.6 that membership in an organization by a judge must not give rise to the appearance of impropriety thus diminishing public confidence in the integrity and impartiality of the judiciary, nor must it create a perception that the judge’s impartiality is impaired. And, a judge should be mindful of the admonition of Rule 3.1(C) that a judge shall not ‘‘participate in activities that would reasonably appear to undermine the judge’s independence, integrity or impartiality.’’
While the Committee acknowledges judges would like definitive answers to their questions as to whether they may or may not belong to particular organizations, the Committee is unable to do so. The Committee does not possess the resources to perform the kind of investigation that would be required to decide that issue properly among the myriad of organizations and almost infinite subchapters to which our judges belong or to engage in the type of balancing between the competing interests at play. Each judge must decide this issue on the relevant facts being mindful of the various interests at play.
This Formal Advisory Opinion is intended to provide judicial officers subject to the Code of Judicial Conduct with broad guidance regarding one of the Committee’s most difficult areas of inquiry. Judicial officers are reminded that to enjoy the rule of reliance on the Committee’s advice, or if they have a question concerning the application of these guidelines, they should make a written request for advice from a member of the Committee tailored to the particular situation confronted. The Code provides that although such opinions are not per se binding on the Judicial Conduct Board, the Court of Judicial Discipline, or the Supreme Court of Pennsylvania, action taken in reliance thereon shall be considered in determining whether discipline should be recommended or imposed.
Source The provisions of this § 15-2 adopted July 31, 2015, 45 Pa.B. 4154.
§ 15-3. Certain Fundraising Activities.
The Ethics Committee of the Pennsylvania Conference of State Trial Judges (‘‘Ethics Committee’’) regularly receives inquiries regarding the propriety of participating in fundraising events on behalf of civic and charitable activities in which judges are involved. Because of the frequency of such inquiries, the Ethics Committee has decided to issue this Formal Advisory Opinion in order to provide guidance to judicial officers subject to the Code of Judicial Conduct (‘‘Code’’).
Canon 3 of the Code addresses a judge’s involvement in personal and extrajudicial activities. It provides: ‘‘A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.’’
Comment (1) under Rule 3.1 states:
. . . judges are permitted and encouraged to engage in educational, religious, charitable, fraternal or civic extrajudicial activities not conducted for profit, even when the activities do not involve the law[.]
and Comment (2) states:
[p]articipation in both law-related and other extrajudicial activities helps integrate judges into their communities, and furthers public understanding of and respect for courts and the judicial system.
Rules 3.1, 3.6 and 3.7 address the broad limitations and concerns regarding the circumstances in which judges may properly participate in such activities. For example, judges may not participate in extrajudicial activities that ‘‘will interfere with the proper performance’’ of their judicial duties; ‘‘lead to frequent disqualification;’’ ‘‘reasonably appear to undermine the judge’s independence, integrity, or impartiality;’’ ‘‘engage in conduct that would reasonably appear to be coercive;’’ ‘‘hold membership in,’’ or ‘‘use the benefits or facilities’’ of, an organization ‘‘that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, disability or sexual orientation;’’ or be ‘‘an officer, director, trustee, or nonlegal advisor’’ of an organization that ‘‘is likely . . . to be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court.’’
This Formal Advisory Opinion addresses the nature and extent of fundraising activities held on behalf of civic and charitable organizations in which a judge’s participation is permissible.
In pertinent part, Rule 3.7(B) of the Code provides:
* * * * *
(2) A judge shall not personally solicit funds for any educational, religious, charitable, fraternal or civic organization, or use or permit the use of the prestige of the judicial office for that purpose, but may be listed as an officer, director or trustee of such an organization. A judge shall not be a speaker or the guest of honor at an organization’s fundraising events that are not for the advancement of the legal system, but may attend such events.
(3) A judge shall not give investment advice to such an organization.
* * * * *
The prohibition against judges personally soliciting funds for any educational, religious, charitable, fraternal or civic organization, or using or permitting the use of the prestige of their office for that purpose, is a change from the Code of Judicial Conduct that was in effect prior to July 1, 2014. With respect to those types of organizations, the prior code stated ‘‘Judges should not solicit funds . . .’’1 The
1 Canon 5B(2) of the ‘‘old’’ Code of Judicial Conduct.
current Code, effective July 1, 2014, added the word ‘‘personally.’’ The prohibition applies regardless of how worthwhile the organization or its activities may be, and it prohibits judges from being the guest speaker or guest of honor at fundraising dinners or events that are not for the advancement of the legal system. Judges, however, may attend such events and contribute to them subject to the broader limitations of the Rules.
Faced with reduced budgets and shrinking charitable contributions, organizations have turned to novel and creative fundraising efforts to swell the crowd or otherwise raise money by involving judges. The Ethics Committee has been presented with a wide variety of such efforts. Without attempting to offer an all inclusive list of all the potential activities that fall within the ambit of Rule 3.7(B), they have included using a judge as an attraction or celebrity participant such as Dancing with the Stars, Competing with the Stars in Sporting Events, Celebrity Auctioneer and Celebrity Contributor. While celebrities and other government officials may lend their personal, professional or other forms of celebrity status to the fundraising efforts of an organization, such activity by a judge is prohibited. In sum, a judge may not permit an organization to capitalize on, exploit or showcase a judge’s attendance at or participation in such events by advertising that fact or issuing invitations citing the judge’s attendance or participation in advance of the event. A judge who allows himself or herself to be used in this manner is engaged in a solicitation of funds in violation of Rule 3.7(B)(2).
This does not mean that a judge is precluded from receiving a well-earned award from an organization or even being recognized at an event. It means the judge cannot allow his or her presence at the event or the fact that he/she will receive an award at it be used to promote a fundraising event unless the exception for the advancement of the legal system applies. The critical harm to be avoided is the exploitation of the judicial office.
Therefore, while judges may attend fundraising events that do not violate the broader prohibition of reflecting adversely upon the judge’s impartiality or interfere with the performance of the judge’s judicial duties, a judge should not be featured as a highlight of any such event. Accordingly, advertising the judge’s presence, placing the judge in a strategic position to influence potential customers or contributors, having a judge endorse a fundraising event or product, or having a judge sell tickets, may each lead to effects the Code is designed to prevent. These include making people feel obligated to contribute or otherwise participate in the event; enabling them, or others, to believe they are currying favor with the judge; diminishing the office of judge by turning it into a marketing tool; and pressuring other judges into participating in similar causes. A judge who allows himself or herself to be used in this manner is engaged in the solicitation of funds in direct violation of Rule 3.7(B)(2). Because of the overall prophylactic purpose of this Rule, the worthiness of the cause for which the funds are being raised is irrelevant.
If, after considering the foregoing principles, a judge decides to attend or participate in a fundraising event, additional consideration must be given to the mandate of Rule 3.7(A) that a judge’s ‘‘avocational activities do not detract from the dignity of their office’’. Accordingly, the indicia of the office of judge, including the judicial robe, gavel and courtroom, should never be utilized or depicted in any manner which would compromise respect for the judiciary or the judicial process. Attendance at, or participation in events that do so, would also be prohibited by Rule 3.7.
This Opinion is obviously not intended as an exhaustive discussion of all of the potential activities permitted or prohibited under the Code. Instead, its primary focus is to address how judges may participate in the fundraising aspects of civic and charitable activities without running afoul of Rule 3.7’s prohibition against using or permitting the use of the prestige of the judicial office for the solicitation of funds on behalf of those organizations in which they are involved. By remaining sensitive to the potential exploitation of the judicial office—or more specifically, the ‘‘judge as judge’’—the salutary purposes animating the Code will be better served and the preservation of an independent judiciary can continue to be assured.
Commonly referred to as ‘‘the rule of reliance,’’ Preamble (8) of the Code of Judicial Conduct provides:
The Ethics Committee of the Pennsylvania Conference of State Trial Judges is designated as the approved body to render advisory opinions regarding ethical concerns involving judges, other judicial officers and judicial candidates subject to the Code of Judicial Conduct. Although such opinions are not binding per se upon the Judicial Conduct Board, the Court of Judicial Discipline or the Supreme Court of Pennsylvania, action taken in reliance thereon and pursuant thereto shall be taken into account in determining whether discipline should be recommended or imposed.
To obtain the ‘‘rule of reliance,’’ an individual subject to the Code of Judicial Conduct shall present to a member of the Ethics Committee a particular factual scenario, in writing, to which the inquirer seeks advice regarding his/her prospective conduct.
To reiterate, the purpose of this Formal Advisory Opinion is to provide guidance on a matter of general importance to the Conference. It is not a substitute for an advisory opinion by the Ethics Committee to an individual judicial officer on specific facts.
Source The provisions of this § 15-3 adopted July 31, 2015, 45 Pa.B. 4156.
§ 15-4. Disqualification and Recusal.
A function of The Ethics Committee of the Pennsylvania Conference of State Trial Judges (the ‘‘Committee’’) is to provide guidance regarding ethical concerns to judicial officers subject to the Code of Judicial Conduct (the ‘‘Code’’). Inquiries regarding disqualification and recusal are among the more numerous questions addressed to the Committee. Because of the frequency of these inquiries, the Committee issues this Formal Advisory Opinion to assist judges on a matter of general importance to judicial officers subject to the Code.
This Formal Advisory Opinion is general in nature, does not address a particular situation, and is not in response to a specific request for an advisory opinion from a judicial officer. Therefore, the ‘‘rule of reliance’’ set forth in Preamble (8) of the Code does not apply to this Formal Advisory Opinion.1
‘‘Disqualification’’ and ‘‘Recusal’’
The terms ‘‘disqualification’’ and ‘‘recusal’’ have generated some confusion. According to the American Bar Association’s Joint Commission to Evaluate the Model Code of Judicial Conduct, the terms are used interchangeably in many jurisdictions.2 In fact, Rules 2.7 and 2.11 of the ABA Model Code, which are the bases of Rules 2.7 and 2.11 of the Pennsylvania Code, refer only to ‘‘disqualification.’’ The Model Code does not refer to ‘‘recusal.’’
Rules 2.7 and 2.11 of the Pennsylvania Code and their respective Comments use both terms and seem to recognize a distinction between them. Rule 2.7 of the Code provides:
A judge shall hear and decide matters assigned to the judge, except where the judge has recused himself or herself or when disqualification is required by Rule 2.11 or other law.
Comment (1) to Rule 2.7 states, in pertinent part:
. . . Although there are times when disqualification or recusal is necessary . . . [u]nwarranted disqualification or recusal may bring public disfavor to the court, and to the judge personally . . . [and] . . . a judge should not use disqualification or recusal to avoid cases that present difficult, controversial, or unpopular issues.
Comment (2) to Rule 2.7 provides:
This Rule [2.7] describes the duty of a judge to decide matters assigned to the judge. However, there may be instances where a judge is disqualified from presiding over a particular matter or shall recuse himself or herself from doing so. A judge is disqualified from presiding over a matter when a specified disqualifying fact or circumstance is present. See Rule 2.11. The concept of recusal envisioned in this Rule overlaps with disqualification. In addition, however, a judge may recuse himself or herself from presiding over a matter even in the absence of a disqualifying fact or circumstance where—in the exercise of discretion, in good faith, and with due consideration for the general duty to hear and decide matters—the judge concludes that prevailing facts and circumstances could engender a substantial question in reasonable minds as to whether disqualification nonetheless should be required. . . .
1 Preamble (8) states:
‘‘The Ethics Committee of the Pennsylvania Conference of State Trial Judges is designated as the approved body to render advisory opinions regarding ethical concerns involving judges, other judicial officers and judicial candidates subject to the Code of Judicial Conduct. Although such opinions are not, per se, binding upon the Judicial Conduct Board, the Court of Judicial Discipline or the Supreme Court of Pennsylvania, action taken in reliance thereon and pursuant thereto shall be taken into account in determining whether discipline should be recommended or imposed.’’
2 American Bar Association’s Joint Commission to Evaluate the Model Code of Judicial Conduct, The Revised Model Code of Judicial Conduct, Rule 2.11, Comment (1).
Comment (3) to Rule 2.7 states:
A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification or recusal, even if the judge believes there is no proper basis for disqualification or recusal.
Rule 2.11(A)(4) states:
. . . There shall be a rebuttable presumption that recusal or disqualification is not warranted when a contribution or reimbursement. . . .
And Comment (3) to Rule 2.6 states:
Judges must be mindful of the effect settlement discussions can have, not only on their objectivity and impartiality, but also on the appearance of their objectivity and impartiality. Despite a judge’s best efforts, there may be instances when information obtained during settlement discussions could influence a judge’s decision making during trial, and, in such instances, the judge should consider whether recusal may be appropriate. See Rule 2.11(A)(1).
In general, ‘‘disqualification’’ is a specified fact, circumstance or condition that makes one ineligible or unfit to serve, or otherwise deprives the judge of the power to preside. ‘‘Recusal’’ is the act of removing or absenting oneself in a particular case because the judge concludes that the prevailing facts or circumstances could engender a substantial question in reasonable minds whether the judge can be impartial.3 Again,
. . . a judge may recuse himself or herself from presiding over a matter even in the absence of a disqualifying fact or circumstance where—in the exercise of discretion, in good faith, and with due consideration for the general duty to hear and decide matters—the judge concludes that prevailing facts and circumstances could engender a substantial question in reasonable minds as to whether disqualification nonetheless should be required.
Rule 2.7 Comment (2).4
Historical Perspective
The current Code became effective on July 1, 2014. Prior to that time, Canon 3 C of the then-existing code, titled ‘‘Disqualification,’’ stated:
Judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned. . . .
Code of Judicial Conduct (Pre-July 1, 2014), Canon 3 C. (Emphasis added.) Some have argued use of the word ‘‘should’’ made the command aspirational or permissive instead of mandatory, leaving the decision to recuse largely to the discretion of the judge.
3 Black’s Law Dictionary, 7th Ed.
4But see Pennsylvania Rule 2.11(A): ‘‘A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, . . .’’
The Committee rarely gave inquiring judges firm advice about the course of conduct to be taken in a particular situation; it simply issued a memorandum setting forth what it considered to be the relevant case law the judge should consider when exercising his/her discretion. A majority of the Committee felt only the Supreme Court or the Court of Judicial Discipline had the authority to relieve a judge of his/her duty to decide assigned matters; and, as a practical matter, if the Committee advised a judge to recuse in a particular situation, the judge would be almost obliged to follow that advice to avoid having to defend a potential charge of unethical conduct if the judge decided to reject the Committee’s advice and proceed to hear the matter. Furthermore, many of the operative facts bearing on recusal are best ascertained and weighed by the inquiring judge rather than by the Committee.
The current Code clarifies the use of the word ‘‘should.’’ Preamble (6) provides:
Where a Rule contains a permissive term, such as ‘‘may’’ or ‘‘should,’’ the conduct being addressed is committed to the personal and professional discretion of the judge or candidate in question, and no disciplinary action should be taken for action or inaction within the bounds of such discretion. . . .
The implication is the use of the word ‘‘shall’’ connotes an obligation.5 It also clarified that a judge acting within the bounds of discretion should suffer no disciplinary action.
Canon 1
Canon 1 and the Rules under it reflect the broad, general, overarching principles of the Code. Canon 1 states:
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
And Rule 1.2 states:
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.6
Although the Rules under Canon 1, including Rule 1.2, standing alone, can be the basis for discipline, the succeeding Canons and their associated Rules more specifically address situations concerning the judge performing the duties of judicial office (Canon 2), engaging in personal and extrajudicial activities (Canon 3), and participating in political or campaign activities (Canon 4).
5 Garwin, et al., Annotated Model Code of Judicial Conduct, 2nd Ed., 2011, p.7.
6 The Code defines ‘‘impartiality’’:
Absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.
Terminology, ‘‘Impartial, impartiality, impartially.’’
The Code defines ‘‘impropriety’’ as:
. . . conduct that undermines a judge’s independence, integrity, or impartiality.
Terminology, ‘‘Impropriety.’’
Rules 2.7 (Responsibility to Decide) and 2.11 (Disqualification)
As noted above, Rule 2.7 requires (‘‘shall’’) a judge to hear and decide assigned matters unless the judge recuses himself or herself, or is disqualified by Rule 2.11 or other law. Rule 2.11(A) provides:
A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.
(2) The judge knows that the judge, the judge’s spouse or domestic partner, or a person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person is:
a. a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;
b. acting as a lawyer in the proceeding;
c. a person who has more than a de minimis interest that could be substantially affected by the proceeding;
or
d. likely to be a material witness in the proceeding.
(3) The judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, domestic partner, parent, or child, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter in controversy or is a party to the proceeding.
(4) The judge knows or learns that a party, a party’s lawyer, or the law firm of a party’s lawyer has made a direct or indirect contribution(s) to the judge’s campaign in an amount that would raise a reasonable concern about the fairness or impartiality of the judge’s consideration of a case involving the party, the party’s lawyer, or the law firm of the party’s lawyer. In doing so, the judge should consider the public perception regarding such contributions and their effect on the judge’s ability to be fair and impartial. There shall be a rebuttable presumption that recusal or disqualification is not warranted when a contribution or reimbursement for transportation, lodging, hospitality or other expenses is equal to or less than the amount required to be reported as a gift on a judge’s Statement of Financial Interest.
(5) The judge, while a judge or a judicial candidate, has made a public statement, other than in a court proceeding, judicial decision, or opinion, that commits the judge to reach a particular result or rule in a particular way in the proceeding or controversy.
(6) The judge:
a. served as a lawyer in the matter in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter during such association;
b. served in governmental employment, and in such capacity participated personally and substantially as a lawyer or public official concerning the proceeding, or has publicly expressed in such capacity an opinion concerning the merits of the particular matter in controversy; or
c. was a material witness concerning the matter.
Id.
The enumerated circumstances are not exhaustive. Under the Rule, the judge must disqualify himself/herself in any proceeding in which ‘‘the judge’s impartiality might reasonably be questioned.’’ Id.
Some of the circumstances outlined in the Rule are straightforward. E.g., there is little room for discretion where the judge or the judge’s spouse or domestic partner is a party or acting as a lawyer or is likely to be a material witness in the proceeding, or if the judge served as a lawyer in the matter in controversy. See Rule 2.11(A)(2)(a), (b) and (d), and Rule 2.11(A)(6)(a), respectively. In those situations, the judge is disqualified. However, other circumstances require the exercise of judgment and discretion, e.g., whether the interest of the judge or the judge’s spouse or domestic partner is ‘‘de minimis.’’ Rule 2.11(A)(2)(c).
Rule 2.11(A)(4) introduces, for the first time, the role of campaign contributions as a basis for mandatory disqualification.7 However, this is not the first time judges have been cautioned that actions taken during a campaign can lead to recusal or disqualification. In Caperton v. A. T. Massey Coal Co., Inc., 556 U.S. 868 (2009), the United States Supreme Court considered whether a state Supreme Court Justice’s denial of a recusal motion based upon campaign contributions violated the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The majority stated:
[U]nder our precedents there are objective standards that require recusal when ‘‘the probability of actual bias on the part of the judge . . . is too high to be constitutionally tolerable.’’
Id. at 872 (citation omitted). The Court found:
[T]here is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case is pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.
Id. at 884. The Caperton Court concluded the campaign efforts of the litigant’s chairman, chief executive officer and president had ‘‘a significant and disproportionate influence’’ in placing the state Supreme Court Justice on the case, id., and this influence,
7 Rule 2.11(A)(4) is a ‘‘first inroad into complex issues associated with the financing of judicial campaigns. . . .’’). Id. at Rule 2.11(A), Comment (6).
coupled with the temporal relationship between the election and the pending case[,] ‘‘offer[s] a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.’’
Id. at 886 (citation omitted). The Court held that, under the circumstances, due process required recusal. Id. at 889-890.8
In all situations where the judge’s ‘‘impartiality might reasonably be questioned,’’ the ethical standards for disqualification and recusal are an objective test. See, Pepsico v. McMillen, 764 F.2d 458, 460 (7th Cir. 1985) (whether an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt that justice would be done in the case).
Exceptions to Mandatory Disqualification
Unless the judge is disqualified for bias or prejudice under Rule 2.11(A)(1), Rule 2.11(C) permits a judge to disclose the basis for disqualification on the record and affords the parties and their lawyers the opportunity to consider, outside the presence of the judge and court personnel, whether they wish to waive the disqualification. If, following the disclosure, the parties and their lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement must be incorporated into the record of the proceeding.
In addition, the ‘‘rule of necessity’’ may override the requirement of disqualification. This rule permits a judge to decide a matter even though the judge would ordinarily be required to recuse, where the matter could not otherwise be heard by any other court, or the matter requires immediate judicial action and only that judge is available. Although Comment (3) to Rule 2.11 specifically recognizes that the ‘‘rule of necessity’’ may override the rule of disqualification, the effect of the Comments in the Code is unclear.9 However, regardless of the effect of the Comments, the ‘‘rule of necessity’’ is based on common law and is an accepted
8 For example, the Tennessee Code of Judicial Conduct provides:
The fact that a lawyer in a proceeding, or a litigant, contributed to the judge’s campaign, or supported the judge in his or her election does not of itself disqualify the judge. Absent other facts, campaign contributions within the limits of the ‘‘Campaign Contributions Limits Act of 1995,’’ Tennessee Code Annotated Title 2, Chapter 10, Part 3, or similar law should not result in disqualification. However, campaign contributions or support a judicial candidate receives may give rise to disqualification if the judge’s impartiality might reasonably be questioned. In determining whether a judge’s impartiality might reasonably be questioned for this reason, a judge should consider the following factors among others:
(1) The level of support or contributions given, directly or indirectly, by a litigant in relation both to aggregate support (direct and indirect) for the individual judge’s campaign and to the total amount spent by all candidates for that judgeship;
(2) If the support is monetary, whether any distinction between direct contributions or independent expenditures bears on the disqualification question;
(3) The timing of the support or contributions in relation to the case for which disqualification is sought; and
(4) If the supporter or contributor is not a litigant, the relationship, if any, between the supporter or contributor and (i) any of the litigants, (ii) the issue before the court, (iii) the judicial candidate or opponent, and (iv) the total support received by the judicial candidate or opponent and the total support received by all candidates for that judgeship
Tennessee Code of Judicial Conduct, Rule 2.11, Comment 7.
9 The ABA Revised Model Code of Judicial Conduct 2007 includes Comments as well as Canons and Rules. The Model Code states:
The Comments that accompany the Rules serve two functions. First, they provide guidance regarding the purpose, meaning and proper application of the Rules. They contain explanatory material and, in some instances, provide examples of permitted or prohibited conduct. . . . .
Second, the Comments identify aspirational goals for judges. . . .
ABA Revised Model Code of Judicial Conduct 2007, Scope (3) and (4).
In contrast, the Pennsylvania Supreme Court’s order of January 8, 2014, adopting the Pennsylvania Code, does not mention the Comments. The Order states, in part, that ‘‘new Canons 1 through 4 of the Code of Judicial Conduct of 2014 and the corresponding Rules are adopted in the attached form.’’
part of Pennsylvania’s jurisprudence. See, e.g., Stilp v. Commonwealth, 905 A.2d 918, 929 (Pa. 2006) (justices with pecuniary interest in outcome of case may decide challenge to law affecting judicial compensation where all other judges have similar interest and no other provision or procedure exists to consider matter)
When and What Should a Judge Disclose?
Comment (3) to Rule 2.7, addresses the issue of what information a judge should disclose:
A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification or recusal, even if the judge believes there is no proper basis for disqualification or recusal.
Id. at Rule 2.7, Comment (3); see also Rule 2.11, Comment (5).
In deciding whether to disclose information and what information to disclose, a judge should first review the record to gain an understanding of the claims and defenses of the parties. A judge also should determine, to the extent possible, the identity of witnesses and the subject matter of their testimony. In obtaining information, a judge should avoid ex parte communications. Examples of appropriate disclosures include, but are not limited to, the following:
• A judge should disclose facts regarding the judge’s current or former association or relationship with a party, a lawyer, or a witness.
• A judge should disclose that he or she provided legal services to a party or witness prior to taking the bench.
• A judge should disclose that a lawyer in the case represents or previously represented the judge.
• A judge should disclose that he or she holds an opinion about the merits of a claim or defense or the credibility of a witness. Even though the judge believes he or she can set aside the opinion and base decisions solely on the evidence and the law, the judge should disclose the opinion.
The Comments explain how a judge should make a disclosure. The disclosure should be on the record. In most instances, the judge will simply state the relevant facts on the record in the presence of the parties and the attorneys. The judge may also make a disclosure in a writing that is made part of the record. A judge may present documents or refer to records in other cases for the parties and lawyers to consider. In any case, after completing the disclosure, the judge should notify the parties that they may move orally or in writing for disqualification or recusal.
Disqualification and Recusal Decision Worksheet
Judges concerned about whether disqualification or recusal is appropriate may consider utilizing the following worksheet:
1.) Does the judge subjectively believe he/she can decide the case fairly and impartially? If so, proceed with the following steps of the worksheet. If not, the judge must recuse unless Question 7 (rule of necessity) is answered affirmatively.
x2.) Is the fact pattern one of the enumerated examples in Rule 2.11(A) (1)—(6)? If so, disqualification is required unless either Question 6 (waiver) or Question 7 (rule of necessity) is answered affirmatively.
3.) Does the fact pattern suggest that the judge’s impartiality might reasonably be questioned, that is, do the prevailing facts and circumstances engender a substantial question in reasonable minds that the judge would not be fair or impartial? If so, disqualification or recusal is required under Rule 2.11(A) or Rule 2.7 Comment (2) unless either Question 6 (waiver) or Question 7 (rule of necessity) is answered affirmatively.
4.) Even though the judge has concluded that disqualification or recusal is not required, are there facts or information the judge believes the parties or lawyers might reasonably consider relevant to a motion to disqualify or remove the judge? If so, the judge should disclose that information to the parties or lawyers.
5.) If a party moves for disqualification or recusal, the court should hold a hearing. ‘‘A party seeking recusal bears the burden of producing evidence to establish bias, prejudice, or unfairness which raises a substantial doubt as to the jurist’s ability to preside impartially.’’ Com. v. Watkins, 108 A.3d 692, 734 (Pa. 2014) (citation omitted).
6.) Except in instances of a judge’s personal bias or prejudice as outlined in Rule 2.11(A)(1), do the parties waive disqualification pursuant to Rule 2.11(C)? If so, the judge may participate in the case after using the following procedure:
a. the judge discloses the basis for the disqualification on the record;
b. the judge asks the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification; and
c. the judge incorporates any agreement to waive disqualification into the record of the proceeding.
7.) Does the rule of necessity override the rule of disqualification? See Comment 3 to Rule 2.11. If so, the judge may be able to participate.
a. If the judge is the only judge available to hear a matter requiring immediate judicial action, the judge must disclose on the record the basis for disqualification and make reasonable efforts to transfer the matter to another judge as soon as practicable.
b. Other issues of necessity must be addressed on a case-by-case basis.
Conclusion
Ultimately, the issue of disqualification or recusal requires the judge to determine whether his or her impartiality might reasonably be questioned. If the judge has a doubt as to disclosure, it is, of course, more prudent to err on the side of disclosure. A judge should consider the following principle stated by the Supreme Court of Pennsylvania:
Due consideration should be given by [the judge] to the fact that the administration of justice should be beyond the appearance of unfairness. But, while the mediation of courts is based upon the principle of judicial impartiality, disinterestedness, and fairness pervading the whole system of judicature, so that courts may as near as possible be above suspicion, there is, on the other side, an important issue at stake: that is, that causes may not be unfairly prejudiced, unduly delayed, or discontent created through unfounded charges of prejudice or unfairness made against the judge in the trial of a cause. . . .
Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 489 A.2d 1291, 1299 (Pa. 1985). The Court further stated that judges should not permit ‘‘unfounded and ofttimes malicious charges . . . to discredit the judicial system.’’ Id. While frivolous claims will no doubt come before the courts, it is imperative that, first and foremost, judges remain mindful of their duty to fairness, impartiality and judicial independence.
The ‘‘Rule of Reliance’’
This Formal Advisory Opinion is intended to provide judges with broad guidance regarding one of the Ethics Committee’s most frequent areas of inquiry. Because this Formal Advisory Opinion does not address the specific facts of a particular case, a judge does not receive the benefit of the ‘‘rule of reliance’’ by reviewing the Committee’s general advice. If a judge has questions concerning the application of these guidelines, the judge should make a written request for advice from a member of the Committee, ordinarily from the representative for the zone in which the judge sits. The Code of Judicial Conduct provides that, although such opinions are not per se binding on the Judicial Conduct Board, the Court of Judicial Discipline, or the Supreme Court of Pennsylvania, action taken in reliance thereon shall be considered in determining whether discipline should be recommended or imposed. CODE, PREAMBLE (8).
Source The provisions of this § 15-4 adopted September 26, 2015, 45 Pa.B. 5781.
§ 19-1. Ethical Considerations Regarding Court-Appointed Masters, Hearing Officers and Other Quasi-Judicial Officers.
The Ethics Committee of the Pennsylvania Conference of State Trial Judges (‘‘the Ethics Committee’’) provides guidance regarding ethical concerns to judicial officers subject to the Code of Judicial Conduct (‘‘the Code’’). Judges often inquire whether court-appointed masters, hearing officers, and other quasi-judicial officers are subject to the Code, as well as the ethical obligations judges have in supervising them. The Ethics Committee issues this Formal Advisory Opinion because these questions and concerns implicate the Code and are matters of general importance to the judiciary, particularly to those judges who have supervisory authority over court-appointed masters, hearing officers and other quasi-judicial officers.
Courts use masters, hearing officers, and other quasi-judicial officers in various ways. Some are full-time employees of a county; others are contracted by the county or the court to preside over certain cases or portions of cases. In some cases, they make findings of fact, conclusions of law, and a recommended disposition to which only exceptions are permitted;1 in other cases, their decision is merely advisory.2
Masters, hearing officers, and other quasi-judicial officers are not subject to the Code. The Application section of the Code provides:
(1) The provisions of this Code shall apply to all judges as defined in paragraph (2) infra.
(2) A judge within the meaning of this Code is any one of the following judicial officers who perform judicial functions, whether or not a lawyer: all Supreme Court Justices; all Superior Court Judges; all Commonwealth Court Judges; all Common Pleas Court Judges; all judges of the Philadelphia Municipal Court, except for Traffic Division; and all senior judges as set forth in (3) infra.
Masters, hearing officers, and other quasi-judicial officers who are ‘‘county-level court employees who are under the supervision and authority of the President Judge’’ are subject to the Code of Conduct for Employees of the Unified Judicial System (‘‘Employee Code’’). A footnote to (2), supra, notes:
. . .there is a Code of Conduct for Employees of the Unified Judicial System (‘‘Employee Code’’). It applies to ‘‘employees’’ defined as, ‘‘Employees of the Unified Judicial System’’ and includes 1) all state-level court employees, and 2) all county-level court employees who are under the supervision and authority of the President Judge of a Judicial District of Pennsylvania, unless otherwise indicated by Supreme Court order or rule. . . .
The footnote further provides that:
. . .This Code and the Employee Code do not apply to nonemployee special masters, commissioners, and judges pro tem.
Thus, masters, hearing officers and other quasi-judicial officers used on a contract basis are not employees and are not subject to the Code or to the Employee Code.
Nonetheless, a judge who has supervisory ‘‘direction and control’’ over a master, hearing officer, or other quasi-judicial officer, whether that person is a court employee or a non-employee, has responsibility to ensure that the master, hearing officer, or other quasi-judicial employee acts in a manner that is consistent with the judge’s obligations under the Code.
Rule 2.12 of the Code provides:
Supervisory Duties.
(A) A judge shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this code.
1 See, e.g., Pa.R.C.P. 1920-55-2.
2 See, e.g., Pa.R.C.P. 1920-55-3.
A non-exclusive list of these obligations includes: complying with the law, Rule 1.1; promoting confidence in the judiciary, Rule 1.2; avoiding abuse of the prestige of one’s position, Rule 1.3; being impartial and fair, Rule 2.2; performing one’s duties without bias or prejudice, Rule 2.3; avoiding external influences on one’s conduct or decisions, Rule 2.4; performing one’s work competently and diligently, Rule 2.5; ensuring the right to be heard, Rule 2.6; requiring order and decorum in proceedings, Rule 2.8; avoiding ex parte communications, Rule 2.9; and disqualifying oneself when appropriate, Rule 2.11.
In short, while masters, hearing officers, and other quasi-judicial officers are not subject to the Code, some of them are subject to the Employee Code. In any event, judges who have supervisory ‘‘direction and control’’ over masters, hearing officers, and other quasi-judicial officers are subject to Rule 2.12 of the Code, which requires those judges to ensure that those masters, hearing officers and other quasi-judicial employees act in a manner that is consistent with the applicable obligations of the judge.
Although the Supreme Court designated the Ethics Committee as ‘‘the approved body to render advisory opinions regarding ethical concerns involving judges, other judicial officers, and judicial candidates subject to the Code of Judicial Conduct,’’ Code, Preamble (8), the Employee Code provides for state-level court employees having questions regarding the Employee Code to contact their employing judge, their employing court’s Executive Administrator, or AOPC Human Resources, and for county-level court employees to contact their President Judge or District Court Administrator.
The ‘‘Rule of Reliance’’
This Formal Advisory Opinion is intended to provide judges with broad guidance regarding an issue of general concern among Pennsylvania’s judges. Because this Formal Advisory Opinion does not address the specific facts of a particular case, a judge does not receive the benefit of the ‘‘rule of reliance’’ by reviewing the Committee’s general advice. If a judge has questions concerning the application of these guidelines, the judge should make a written request for advice from a member of the Committee, ordinarily from the representative for the zone in which the judge sits. The Code provides that, although such opinions are not per se binding on the Judicial Conduct Board, the Court of Judicial Discipline, or the Supreme Court of Pennsylvania, action taken in reliance thereon shall be considered in determining whether discipline should be recommended or imposed. CODE, PREAMBLE (8).
Source The provisions of this § 19-1 adopted January 4, 2020, 50 Pa.B. 7.
§ 21-1. Reference Letters.
The Ethics Committee of the Pennsylvania Conference of State Trial Judges (‘‘the Committee’’) regularly receives inquiries regarding the propriety of sending reference letters and similar communications. Because these inquiries are frequent, the Committee previously issued Formal Advisory Opinions 93-1, 98-1,and 2015-11 to provide guidance to judicial officers subject to the Code of Judicial Conduct (‘‘the Code’’).2 This Formal Advisory Opinion supersedes Formal Advisory Opinions 93-1, 98-1, and 2015-1.
Applicable Provisions of the Code of Judicial Conduct
The subject of reference letters3 primarily implicates the principle set forth in Canon 1:
Canon 1. A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
Specifically, Rule 1.3 is relevant to these inquiries:
Rule 1.3. Avoiding Abuse of the Prestige of Judicial Office.
A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.
The Code does not consider writing a reference letter to be an ‘‘abuse’’ of judicial office in all circumstances. Rather, Comment (2)4 of the Rule specifically authorizes writing such a letter in certain circumstances:
Comment (2) A judge may provide a reference or recommendation for an individual based upon the judge’s personal knowledge. The judge may use official letterhead if the judge indicates that the reference is personal and if there is no likelihood that the use of the letterhead would reasonably be perceived as an attempt to exert pressure by reason of the judicial office.
General Guidelines
To provide further clarity, the Committee has adopted the following guidelines:
1. A judge should never write a reference letter for someone the judge does not personally know.
2. A judge may write a reference letter if it is the type of letter that would be written in the ordinary course of business (e.g., a court employee seeking a reference regarding the employee’s work history) or a judge’s personal relationship. The letter should include a statement of the source and extent of the judge’s personal knowledge.
3. The letter ordinarily should be addressed directly to the person or entity for whose information it is being written. The ‘‘blank check’’ letter addressed ‘‘To Whom It May Concern’’ is discouraged because it is subject to indiscriminate circulation beyond the judge’s knowledge or control. In order to reduce the potential for the abuse of the prestige of office, the letter should describe the intended recipient with particularity (e.g., ‘‘Managing Partner’’, ‘‘Director of Operations’’, etc.).
1 The Committee issued Formal Advisory Opinions 93-1 and 98-1 under a prior version of the Code. The Committee issued Formal Advisory Opinion 2015-1 under the current version of the Code, effective July 1, 2014.
2 CODE OF JUDICIAL CONDUCT, 42 PA.C.S.A. (enacted on January 8, 2014, and effective July 1, 2014).
3 For purposes of this Formal Advisory Opinion, the term ‘‘reference letters’’ means and includes letters of recommendation.
4 The Ethics Committee acknowledges that the effect of the Comments is unclear. The Pennsylvania Supreme Court adopted Canons 1 through 4 and the corresponding Rules by Order dated January 8, 2014; the Court made no mention of the Comments, although they are published with the Code. Nonetheless, the Ethics Committee uses the Comments to determine the purpose, meaning, and proper application of the Canons and Rules. This is consistent with the ABA’s Revised Model Code of Judicial Conduct (2007).
4. However, if the judge is concerned that a letter addressed to a particular person or entity might be construed as an attempt to exert pressure by reason of the judicial office, the more general salutation ‘‘To Whom It May Concern’’ may be used. For example, if the judge is writing a reference letter for a law clerk who seeks employment with a firm that regularly appears before the court, the general greeting may be more appropriate.
5. When a law clerk employed by the court seeks employment with an attorney or firm appearing before the court, the law clerk must comply with Rules of Professional Conduct 1.11(d) and 1.12(b) by advising the judge. The judge must determine whether it is advisable to write a reference letter under those circumstances, although the better course is to wait until the pending matter concludes.
6. Reference letters may be written by a judge for someone whom the judge knows personally and not professionally, such as a relative, close friend, neighbor, or student if the letters are the type that the judge would normally be requested to write as a result of the judge’s personal relationship. The relationship should be such that the judge ordinarily would be disqualified from hearing that person’s case. See RULE 2.11(A); FORMAL ADVISORY OPINION 2015-4 (DISQUALIFICATION AND RECUSAL).
7. Any letter that may be written by a judge may be written on official stationery as permitted by Rule 1.3, Comment (2).
8. The reference letter may not be written if the judge has reason to believe the letter may be used for purposes of litigation.
9. A judge writing a reference letter for someone who is the subject of a legal, investigative, or adjudicative proceeding must recognize that the mere writing of such a letter may be perceived as the judge abusing the prestige of judicial office by attempting to influence the process or result in violation of Rules 1.2, 1.3 and 3.1(D) of the Code. On the other hand, those legal, investigative, adjudicative or disciplinary entities may benefit from the judge’s knowledge about or experience with the subject of such proceedings. For these reasons, the recommended practice is to respond to a request for information from such authorities, not to initiate a reference letter to them. The subject of such inquiries is able to notify the appropriate authorities of the judge’s knowledge and ability, upon their request, to furnish a reference letter. Significantly, and as discussed below, in these circumstances, a judge must not comment on the character of the subject. See RULE 3.3, citing RULE OF JUDICIAL ADMINISTRATION, 1701(e).
Character ‘‘Testimony’’
In pertinent part, Rule of Judicial Administration 1701(e) states: ‘‘No judge or magisterial district judge shall testify voluntarily as a character witness.’’ See RULE OF JUDICIAL ADMINISTRATION, 1701(e). Rule 3.3 of the Code specifically incorporates Rule 1701(e) as ‘‘a canon of ethics for the purposes of Section 17 of the Judiciary Article.’’ Id. Moreover, Rule 1.1 of the Code requires judges to comply with the law, including the Rules of Judicial Administration.
The Ethics Committee has interpreted the phrase ‘‘testify voluntarily as a character witness’’ in Rule 1701(e) to include writing a reference letter on behalf of an individual involved in legal, investigatory, or adjudicative proceedings—whether administrative, civil, criminal, or otherwise. If a judge is asked to write such a reference letter, it is inconsequential that the judge is not under oath. In these circumstances, which would include, but not be limited to, writing a reference letter on behalf of an individual in connection with sentencing, parole,5 pardon, clemency, or discipline, a judge may not offer character evidence in any form without fully complying with Rule of Judicial Administration 1701, which requires and sets forth the procedure for obtaining a subpoena allowed by the Supreme Court. See RULE OF JUDICIAL ADMINISTRATION, 1701(b) (‘‘No subpoena to compel a judge or magisterial district judge to testify as a character witness shall be issued or enforced unless the issuance of the subpoena shall have been specially allowed by the Supreme Court pursuant to this rule.’’).
This interpretation does not forbid a judge from commenting on character in other circumstances outside of legal, investigatory, or adjudicative proceedings, such as where the person is well-known by the judge and is seeking, for example, employment, education, appointment, admission, or award. The Ethics Committee does not consider the judge’s comments in those situations to be ‘‘testi[mony]. . .as a character witness.’’ For example, judges may be well-suited to comment on a law clerk’s character when the law clerk is applying for employment, or on the character of a family friend who is applying to college; and it may be perfectly reasonable and appropriate to do so when the judge follows the General Guidelines above.
This approach, which either prohibits or conditionally permits statements of character depending in part on the purpose and target of the letter, recognizes the difficulty in drawing clear and meaningful distinctions between statements of character and similar statements regarding a person’s abilities, qualities, personality, and demeanor, all of which may be extremely helpful to the recipient of the letter. Nonetheless, when writing any reference letter, a judge should be cautious and consider limiting the comments to facts and observations that avoid the complexities of a person’s character.
Conclusion
To summarize, reference letters may be written by a judge if they are of the type that would be written in the ordinary course of business or personal relationships. A judge must take care, however, to be sure that a person with an insubstantial relationship to the judge is not attempting to use the judge’s office to advance personal interests. Significantly, a judge may not voluntarily provide
5 For example, a sentencing judge may, without addressing character, make a recommendation regarding parole, as specifically permitted by Section 6134(b) of the Prisons and Parole Act. See 61 PA.C.S.A. § 6134.character testimony—even in the form of a letter—on behalf of an individual involved in legal, investigatory, or adjudicative proceedings. Conversely, the Code does not forbid a judge from commenting on the character of certain persons in certain contexts, including those where the subject person is well-known by the judge and is seeking employment, education, appointment, admission, or award.
This Formal Advisory Opinion is intended to provide judicial officers subject to the Code of Judicial Conduct with broad guidance regarding one of the Committee’s most frequent areas of inquiry. If a judicial officer subject to the Code has a question concerning the application of these guidelines, the judicial officer should make a specific, written request for advice from a member of the Committee. The Code provides that, although such opinions are not per se binding on the Judicial Conduct Board, the Court of Judicial Discipline, or the Supreme Court of Pennsylvania, action taken in reliance thereon shall be considered in determining whether discipline should be recommended or imposed. Judicial officers are reminded that they will not be subject to this ‘‘rule of reliance’’ based solely on their reading of this Formal Advisory Opinion.
Source The provisions of this § 21-1 added August 7, 2021, 51 Pa.B. 4261.
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