Rule 8.0. Panel Advice and Board Review.
Judicial Officers must submit Requests to the Board in writing under Section 6.0. A Request must contain a statement of the facts regarding the intended conduct and a concise question of judicial ethics, with references to the relevant section(s) of the Codes, case law, and other authority the inquiring Judicial Officer already has consulted. A Request must relate to the inquiring Judicial Officer’s own prospective conduct or conduct of the inquiring Judicial Officer that has occurred in the past and is ongoing. The Board will not consider a Request by the inquiring Judicial Officer relating to the conduct or prospective conduct of another Judicial Officer except as necessary to address a Judicial Officer’s obligations pursuant to Rule 2.12 (Supervisory Duties) of the applicable Code. A Request may not relate to hypothetical situations or to facts that are the subject of past or pending litigation, disciplinary investigation, or disciplinary proceedings. Judicial Officers must submit Requests at least 14 days prior to the event or action giving rise to the question. The Board Chair or the Chair’s designee may, in his or her discretion, waive this 14-day requirement for good cause and if the inquiry can be addressed in the time available.
8.1. Request Intake.
The Executive Director is designated and authorized to receive any and all Requests seeking an Advisory Opinion.
8.2. Jurisdictional Closure.
Any request for an Advisory Opinion from someone other than a Judicial Officer may be closed by the Executive Director for lack of jurisdiction without Board approval.
8.3. Insufficient Request.
If the Board receives a jurisdictionally appropriate Request but lacks sufficient information to render Advice, Staff will obtain additional facts from the inquiring Judicial Officer. Staff may close the Request without Board approval if the inquiring Judicial Officer fails or refuses to provide the requested information within 14 days.
8.4. Panel Determination and Assignment.
Following receipt of a Request, the Executive Director shall identify the level of the judicial system of the inquiring Judicial Officer. The Executive Director shall assign the Request to a Panel.
8.5. Panel Member Assignment.
Each Member will rotate Panel assignments. Each Panel shall contain at least one Member of the same judicial level as the inquiring Judicial Officer. Panel makeup shall be confidential and shall not be disclosed except to Board Members and Staff.
8.5.1. Philadelphia Municipal Court Essential Member.
For Requests originating from Judicial Officers of the Philadelphia Municipal Court, a Board member from the Municipal Court or any common pleas court shall be qualified to serve as an Essential Member of the Panel.
8.6. Identity Redaction.
The Judicial Officer’s Request shall be redacted by Staff so the identity of the Judicial Officer shall not be known to the Panel or Board. Only Staff will have access to the identity of the inquiring Judicial Officer. The identity of an inquiring Judicial Officer may be disclosed to the Chair when, in the Chair’s opinion, there is a clear and convincing need to know. At no time shall the Chair or Staff intentionally disclose the identity of the inquiring Judicial Officer absent an explicit and express waiver by the inquiring Judicial Officer in writing, or the Chair believes disclosure is necessary for a clear and convincing reason.
8.7. Advice.
A Panel determination shall be deemed achieved upon a two-thirds or greater consensus of the Panel. Once a determination is reached, the determination of the Panel shall constitute the Advice, and Staff shall communicate the Advice to the inquiring Judicial Officer in writing.
8.7.1. All members of the Panel must respond before a Panel determination is reached.
8.7.2. The Panel membership shall remain confidential to the Requesting Judicial Officer.
8.8. Reconsideration of Advice.
After a Panel issues an Advice following a Request by a Judicial Officer, the Judicial Officer may seek reconsideration of the Panel Advice.
8.8.1. Timing.
A request for reconsideration of Panel Advice must be in writing and must be received by Staff within five days of Service of the Panel Advice.
8.9. Board Review.
After issuing Advice to the inquiring Judicial Officer, Staff shall circulate the Advice to the Board for review. Members shall respond in writing within twenty days of circulation by sending any agreement, disagreement, or comment to Staff, and by sending a copy of any substantive comment or disagreement to each Member of the Board. A Member who does not respond within the stated timeframe shall be presumed to agree with the Advice rendered. If there is no disagreement with the Advice, the Advice shall be deemed the Board Opinion, so long as no request for reconsideration is pending. A deemed Opinion shall be ratified by vote of the Board at the next meeting.
If a majority of the Board (seven or more Members) register disagreement with an Advice, Staff shall notify the inquiring Judicial Officer promptly, and the matter shall be timely scheduled for Board resolution. The Board shall reach a Board Decision as to the Advice as soon as possible.
8.10. Opinion Publication.
The Board may adopt, modify, or reverse any Advice. Once a Board Decision has been reached under Regulation 4.5.1, the Board Decision shall constitute the Opinion of the Board. Staff shall promptly serve the Opinion of the Board upon the inquiring Judicial Officer. Publication by the Board of any Opinion shall occur only after the period for Board Reconsideration has expired.
8.11. Dissenting Members.
Any Member of the Panel or Board shall retain the right to dissent from the majority decision of either a Panel or the Board. Dissenting votes may be recorded and retained internally for future reference by the Board, but shall not be reflected on the issued Advice or Opinion.
8.12. Reasoned Advice/Opinion.
8.12.1. The Panel Advice and Board Opinion shall be reasoned, in that they shall reference the relevant section(s) of the Codes, case law, and other authority consulted in reaching the conclusions contained therein and apply the same to the facts as set forth in the Request. The Board may also consider for their persuasive value publicly available advice or opinions from other state judicial ethics advisory bodies or courts on the subject of the Request.
8.12.2. Nothing in the Rules or these Regulations shall prohibit either the Board, a Panel, an individual Member, or Staff from citing, referencing, or considering any previously issued opinion or findings of the Ethics Committees of the Pennsylvania Conference of State Trial Judges and/or the Special Court Judges Association of Pennsylvania as persuasive authority in reaching a decision on a Request or in offering General Guidance.
8.12.3. The Panel Advice and/or Board Opinion shall set forth a conclusion as to whether facts regarding the intended conduct set forth in the Request give rise to a violation of any section(s) of the Code(s). Where possible and appropriate, the Panel Advice and/or the Board Opinion may provide a qualified response with accompanying advice on how the Judicial Officer may engage in the proposed conduct without violating the Code(s).
8.13. Reconsideration.
8.13.1. Under Rule 207 (Reconsideration), an inquiring Judicial Officer may submit a written request for reconsideration within twenty days of the Board’s Opinion adopting, modifying, or reversing an Advice. The inquiring Judicial Officer shall present a detailed explanation setting forth the reason(s) why the Board should reconsider the Opinion.
8.13.2. If the Board declines to issue an Opinion, the inquiring Judicial Officer may seek reconsideration of the inaction within 20 days of Service of notice of the Board’s inaction.
8.13.3. A Request for reconsideration must be in writing and must be received by Staff before 5:00 p.m. (EST) on the twentieth day following Service of an Opinion or Notice of Inaction. The 20-day period shall be calculated from the date of Service upon the inquiring Judicial Officer and shall be so computed as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of the Commonwealth or of the United States, such day shall be omitted from the computation.
8.13.4. A request for reconsideration filed with the Board will delay the publication of an Opinion but will not affect the Rule of Reliance unless the Board grants reconsideration.
8.13.5. If the Board grants reconsideration, the Board may take one or more of the following actions:
(a) Adopt the Advice as originally issued.
(b) Modify the issued Opinion.
(c) Withdraw the Opinion and take no further action; or
(d) Other action as the Board deems appropriate.
Source The provisions of this Rule 8.0 amended February 28, 2024, effective immediately, 54 Pa.B. 1297. Immediately preceding text appears at serial pages (410568) to (410571).
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