Title 207--JUDICIAL CONDUCT PART II. CONDUCT STANDARDS [207 PA. CODE CH. 33] Notice of Adoption of Formal Opinion 99-1, Formal Opinion 99-2, and Formal Opinion 99-3 [29 Pa.B. 6236] Notice is hereby given that the Ethics Committee of the Pennsylvania Conference of State Trial Judges has adopted its Formal Opinion 99-1, Formal Opinion 99-2, and Formal Opinion 99-3, which are set forth as follows.
HOWLAND W. ABRAMSON,
Chairman
Ethics Committee
Pennsylvania Conference of State Trial JudgesFORMAL OPINION 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.1
* 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.
FORMAL OPINION 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.
FORMAL OPINION 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.
[Pa.B. Doc. No. 99-2082. Filed for public inspection December 10, 1999, 9:00 a.m.] _______
1 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.
