THE COURTS

Title 207--JUDICIAL CONDUCT

PART I. GENERAL

[ 207 PA. CODE CH. 51 ]

Rules 13, 14 and 15 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges

[37 Pa.B. 6902]
[Saturday, December 29, 2007]

   The Minor Court Rules Committee is planning to recommend that the Supreme Court of Pennsylvania amend Rules 13, 14, and 15 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges to clarify the restrictions on magisterial district judges serving as arbitrators. The Committee is republishing this proposal. The initial publication was 33 Pa.B. 745 (February 8, 2003). The Committee has not submitted this proposal for review by the Supreme Court of Pennsylvania.

   The following explanatory Report highlights the Committee's considerations in formulating this proposal. The Committee's Report should not be confused with the official Committee Notes to the rules. The Supreme Court does not adopt the Committee's Notes or the contents of the explanatory Reports.

   The text of the proposed changes precedes the Report. Additions are shown in bold; deletions are in bold and brackets.

   We request that interested persons submit suggestions, comments, or objections concerning this proposal to the Committee through counsel,

Paula Knudsen Burke, Counsel
Supreme Court of Pennsylvania
Minor Court Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, PA 17055
Fax 717-795-2175
 
or e-mail to: minorrules@pacourts.us

no later than March 1, 2008.

By the Minor Court Rules Committee:

M. KAY DUBREE,   
Chair

Annex A

TITLE 207. JUDICIAL CONDUCT

PART II. CONDUCT STANDARDS

CHAPTER 51. STANDARDS OF CONDUCT OF MAGISTERIAL DISTRICT JUDGES

Rule 13. Incompatible Practices.

   [Magisterial district judges and all employees assigned to or appointed by magisterial district judges shall not engage, directly or indirectly, in any activity or act incompatible with the expeditious, proper and impartial discharge of their duties, including, but not limited to, (1) in any activity prohibited by law; (2) in the collection business; or (3) in the acceptance of any premium or fee for any judicial bond. Magisterial district judges shall not exploit their judicial position for financial gain or for any business or professional advantage. Magisterial district judges shall not receive any fee or emolument for performing the duties of an arbitrator.]

   A.  A magisterial district judge may not exploit his or her judicial position for financial gain or for business or professional advantage.

   B.  A magisterial district judge may not act as an arbitrator.

   C.  A magisterial district judge or an employee assigned to or appointed by a magisterial district judge may not engage in, directly or indirectly, an activity or act incompatible with the expeditious, proper, and impartial discharge of his or her duties, including but not limited to (1) an activity prohibited by law, (2) the collection business, or (3) the acceptance of a premium or fee for a judicial bond.

   Official Note: [The next to the last sentence of this rule is derived in part from Canon 5C(1) of the American Bar Association and Pennsylvania Supreme Court Code of Judicial Conduct. ]

*      *      *      *      *

   Rule 8 (A) of the Rules Governing Standards of Conduct of Magisterial District Judges continues to govern the disqualification of magisterial district judges where the interest in or relationship with a licensed racing or licensed gaming entity or related company thereto, or any such applicant therefor, of the magisterial district judge or a family member is at issue.

   As to subdivisions B, see Section 3304 of the Judicial Code, 42 Pa.C.S. § 3304. Compare with Canon 5E of the Code of Judicial Conduct.

   Adopted, effective Feb. 1, 1973. Amended April 25, 1979, effective in 30 days; June 30, 1982, effective 30 days after July 17, 1982; Jan. 6, 2005, effective Jan. 29, 2005; Nov. 1, 2005, imd. effective; Nov. 21, 2005, imd. effective. Note amended June 1, 2006, effective immediately. Amended _____ , 2008, effective _____ .

Rule 14. Prohibited Practice of Attorney Magisterial District Judges.

   [A.  Attorneys who are magisterial district judges shall not practice before any magisterial district judge in the Commonwealth, nor shall they act as a lawyer in a proceeding in which they have served as a magisterial district judge or in any other proceeding related thereto. Nor shall they practice criminal law in the county within which their magisterial district is located. An employer, employe, partner of office associate of such magisterial district judges shall not appear or practice before them.

   B.  Attorneys who are magisterial district judges shall not practice before, or act as an attorney or solicitor for, any county or local municipal, governmental or quasigovernmental agency, board, authority or commission operating within the Commonwealth.

   Official Note: Subdivision A of this rule is derived from former Rule 3A and Compliance Exception A(2), American Bar Association Code of Judicial Conduct. Subdivision B is derived from former Rule 3B. This rule contains all the prohibitions upon the practice of law by attorney magisterial district judges that were thought necessary.]

   A.  In addition to the general prohibitions in Rule 13, the following prohibitions apply to a magisterial district judge who is an attorney. A magisterial district judge who is an attorney may not:

   (1)  practice law before a magisterial district judge in the Commonwealth;

   (2)  act as a attorney in a proceeding in which he or she has served as a magisterial district judge or in any other proceeding related thereto;

   (3)  practice criminal law in the county within which his or her magisterial district is located; or

   (4)  practice law before, or act as an attorney or solicitor for a county or local municipal, governmental or quasi-governmental agency, board, authority, or commission operating within the Commonwealth.

   B.  An employer, employee, partner, or office associate of a magisterial district judge who is an attorney may not appear or practice law before the magisterial district judge.

   Official Note: The limitation on the practice of law included in subdivision B is intended to affect attorneys who are not necessarily magisterial district judges. Attorney regulation generally is governed only by the Rules of Professional Conduct. Pa. Code Tit. 204, Ch. 81. One specific prohibition is included in this rule, however, because the attorney-magisterial district judge has an independent duty to object if an employer, employee, partner, or office associate appears before the attorney-magisterial district judge.

   Adopted, effective Feb. 1, 1973. Amended June 30, 1982, effective 30 days after July 17, 1982; Jan. 6, 2005, effective Jan. 29, 2005; Nov. 21, 2005, imd. effective. Amended _____ , 2008, effective _____ .

Rule 15. Public Office and Political Activity.

   A.  Magisterial district judges shall not hold another office or position of profit in the government of the United States, the Commonwealth or any political subdivision thereof, except in the armed services of the United States or the Commonwealth.

   B.  Except as otherwise provided in this rule, [Magisterial] magisterial district judges or a candidate for [such] the office [shall] of magisterial district judge may not:

   (1)  hold office in a political party or political organization or publicly endorse candidates for political office[.];

   (2)  engage in partisan political activity, deliver political speeches, make or solicit political contributions (including purchasing tickets for political party dinners or other functions), or attend political or party conventions or gatherings [, except as authorized in subdivision C of this rule]. [Nothing herein shall prevent magisterial] Magisterial district judges or candidates for [such] the offices of magisterial district judge [from making] may make political contributions to a campaign of a member of their immediate family.

   C.  Magisterial district judges or candidates for [such] the [ offices ] office of magisterial district judge may in the year they run for office, attend political or party conventions or gatherings, speak [to such] at the gatherings or conventions on their own behalf, identify themselves as a member of a political party, and contribute to their own campaign, a political party, or political organization (including purchasing tickets for political party dinners or other functions).

   D.  With respect to their campaign conduct, magisterial district judges or candidates for [such] the office of magisterial district judge [shall]:

   (1)  shall maintain the dignity appropriate to judicial office, and shall encourage family members [of their family] to adhere to the same standards of political conduct that apply to [them] the magisterial district judge or candidate[.];

   (2)  shall prohibit public officials or [employes] employees subject to their direction or control from doing for them what they are prohibited from doing under this rule; and except to the extent authorized under subdivision D(4) of this rule [shall] may not allow any other person to do for them what they are prohibited from doing under this rule[.];

   (3)  may not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; make statements that commit or appear to commit the candidate with respect to cases, controversies or issues that are likely to come before the court; or misrepresent their identity, qualifications, present position, or other fact[.];

   Commentary: The United States Supreme Court in Republican Party of Minnesota v. White, 122 S.Ct. 2528 (2002) concluded that a canon of judicial conduct prohibiting judicial candidates from ''announcing their views on disputed legal or political issues'' is violative of the First Amendment of the United State Constitution.

   (4)  may not themselves personally solicit or accept campaign funds, or solicit publicly stated support, but they may establish committees of responsible persons to secure and manage the expenditure of funds for their campaign and to obtain public statements of support for their candidacy. [Such] The committees are not prohibited from soliciting campaign contributions and public support from lawyers. [Candidates'] The committees may solicit [funds for their] campaign funds no earlier than [thirty (30)] 30 days prior to the first day for filing nominating petitions, and all fundraising activities in connection with [such] the campaign [shall] must terminate no later than the last calendar day of the year in which the election is held. [Candidates] A magisterial district judge or a candidate for the office of magisterial district judge may [should] not use or permit the use of a campaign contribution for the private benefit of themselves or family members [of their family].

   E.  Magisterial district judges shall resign their office when they become candidates either in a party primary or in a general election for a non-judicial office.

   Official Note: [This rule is derived from former Rule 15 and from Canon 7 of the American Bar Association and Pennsylvania Supreme Court Code of Judicial Conduct.] This rule prohibits only political activity that is partisan in nature, and consequently there is no objection to magisterial district judges [becoming engaged] engaging in political activity of a public service nature, such as[, for example,] political activity [in] on behalf of measures to improve the law, the legal system, or the administration of justice. Compare Canon 7 of the Code of Judicial Conduct.

   Nothing in subdivision D is intended to prohibit incidental benefit to a magisterial district judge or a candidate for magisterial district judge from the otherwise legitimate use of campaign contributions.

   Adopted, effective Feb. 1, 1973. Amended Oct. 17, 1975, effective in 90 days; June 30, 1982, effective 30 days after July 17, 1982; Nov. 9, 1998, effective Jan. 1, 1999; Nov. 21, 2002, imd. effective; Jan. 6, 2005, effective Jan. 29, 2005; Nov. 21, 2005, imd. effective. Amended _____ , effective _____ .

REPORT

Proposed Amendments to Rules 13, 14, and 15 of the Rules of Conduct, Office Standards and Civil Procedure for Magisterial District Judges

Clarification Regarding Restrictions on Magisterial District Judges Serving As Arbitrators

I.  Background

   The Minor Court Rules Committee (''the Committee'') began its review of Rules 13 (relating to incompatible practices), 14 (relating to prohibited practice of attorney-magisterial district judges¹ ), and 15 (relating to public office and political activity) of the Standards of Conduct of Magisterial District Judges² in response to an inquiry from certain members of the Ethics and Professionalism Committee of the Special Court Judges Association of Pennsylvania (''SCJAP Ethics Committee''). The SCJAP Ethics Committee members reported that they had received a number of inquiries from attorney-magisterial district judges (''MDJs'') asking whether or not an attorney-MDJ may serve as an arbitrator, particularly in contractual arbitration cases where the arbitrators' fees are paid by the parties.³ The SCJAP Ethics Committee referred the question to the Committee, suggesting that the interplay among Rules 13, 14, and 15 is causing confusion regarding the ethical restrictions placed on MDJs in general, and attorney-MDJs in particular. After consideration of the inquiry, and review of the relevant rules, statutes, and other authorities, the Committee agreed that amendments to the rules were advisable to provide that no MDJ, including an attorney-MDJ, may act as an arbitrator.

   The Committee published its initial proposal in 2003, at 33 Pa.B. 745 (February 8, 2003). After receiving valuable comments from various sources, the Committee made selected revisions and prepared to send the proposal to the Supreme Court of Pennsylvania as a formal recommendation. However, upon the request of the Special Court Judges Association of Pennsylvania (''SCJAP''), the Committee delayed transmitting the recommendation. The SCJAP leadership maintained that they would be able to solve the ''attorney-MDJ as arbitrator'' quandary through legislative action. However, despite a lengthy delay, no legislative solution has been achieved. Therefore, in order to revive this proposal, the Committee is republishing for substantive comments that were not previously submitted. Prior submissions have already been considered by the Committee and it is not necessary to resubmit those comments.

II.  Discussion

   As stated above, the SCJAP Ethics Committee suggested that Rules 13, 14, and 15, when read together, create confusion about what, if any, ethical restrictions are placed on attorney-MDJs' ability to serve as arbitrators. Specifically, Rule 13 states, inter alia, that ''[m]agisterial district judges shall not receive any fee or emolument for performing the duties of an arbitrator.'' Rule 14, which applies specifically to restrictions on the practice of attorney-MDJs, does not expressly prohibit attorney-MDJs from serving as arbitrators. Further, the Note to Rule 14 states that ''[t]his rule contains all the prohibitions upon the practice of law by attorney magisterial district judges that were thought necessary.''⁴ Finally, Rule 15 provides, inter alia, that ''[m]agisterial district judges shall not hold another office or position of profit in the government of the United States, the Commonwealth, or any political subdivision thereof . . . .'' The Committee learned that some magisterial district judges, when reading these provisions together, have interpreted them to mean the following:

1.  Because Rule 13 prohibits an MDJ from receiving ''any fee or emolument for performing the duties of an arbitrator,'' but no similar prohibition is expressed in Rule 14, the Rule 13 provision does not apply to an attorney-MDJ acting in his or her capacity as an attorney;

2.  Because of the limiting language in the Note to Rule 14, the arbitration prohibition in Rule 13 does not apply to an attorney-MDJ acting in his or her capacity as an attorney.

3.  Because Rule 15 prohibits MDJs from holding ''another . . . position of profit in the government . . . ,'' an attorney-MDJ may not serve as a arbitrator in a compulsory arbitration program in which fees are paid by a county or other government entity, but may serve as an arbitrator, in his or her capacity as an attorney, in a private contractual arbitration case in which fees are paid by the parties.

   The Committee also learned that some attorney-MDJs, relying on the above reading of Rules 13, 14, and 15, have been serving as arbitrators both in compulsory and contractual arbitration cases, particularly uninsured/underinsured motorist arbitrations.

   The Committee disagrees with the above interpretation of the rules. The Committee reviewed Rules 13, 14, and 15, as well as Section 3304 of the Judicial Code, 42 Pa.C.S. § 3304(b), entitled ''Acting as collection agent or paid arbitrator prohibited.'' This provision states that, ''[n]o judge or magisterial district judge shall receive any fee or emolument for performing the duties of an arbitrator.'' In addition, the Committee compared the MDJ rules with Canon 5E of the Pennsylvania Code of Judicial Conduct, which states that, ''[j]udges should not act as an arbitrator or mediator.''

   In its analysis of the authorities, the Committee noted that Rule 13 applies to all MDJs, and prohibits all MDJs from receiving a fee or emolument for acting as an arbitrator. Rule 14, the Committee noted, applies specifically to attorney-MDJs, and lists only certain prohibited practices not specified in the other rules relating to all MDJs. Further, the Committee noted that Section 3304 does not distinguish between attorney and non-attorney MDJs in its prohibition of MDJs receiving ''any fee or emolument for performing the duties of an arbitrator.'' In addition, the Committee noted that neither Section 3304 nor the rules distinguish between compulsory (court) and contractual (private) arbitration cases in their prohibitions.

   The Committee concluded, therefore, that the rules and statute prohibit an MDJ, attorney or non-attorney, from receiving a fee or emolument for performing the duties of an arbitrator. The Committee disagreed with the analysis described above that would construe Rule 13 as not applying to an attorney-MDJ in his or her capacity as an attorney, and would create an artificial distinction between compulsory and contractual arbitration cases.

   Having concluded that no MDJ may receive a fee or emolument for performing the duties of an arbitrator regardless of the nature of the arbitration and the payer of the arbitrators' fees, the Committee next considered if the rules should retain the existing restriction and be amended to merely clarify the nature of the restriction, or if the rules should be amended to more closely mirror Canon 5E and fully prohibit MDJs from acting as arbitrators. After considerable discussion, the Committee concluded that the distinction between compensated and uncompensated service seemed immaterial, and that the rules should reflect an absolute prohibition on an MDJ acting as an arbitrator.

   The Committee believes there is no inherent impropriety in an attorney-MDJ, in his or her capacity as an attorney, acting as an arbitrator in a contractual arbitration case. The Committee feels compelled to recommend these rule changes, however, because of what it believes to be the clear language of Section 3304 which prohibits all MDJs from receiving payment for any arbitration services, and because of the reported confusion cases by the interplay among current Rules 13, 14 and 15.

   Accordingly, the Committee proposes that Rules 13, 14, and 15 be amended to more closely mirror Canon 5E and to provide that no MDJ may act as an arbitrator.

III.  Proposed Rule Changes

A.  Rule 13

   The Committee proposes that Rule 13 be divided into three subdivisions to enhance readability. The three subdivisions would contain the existing provisions of the rule with only minor editorial changes to conform with modern drafting style. Subdivision B would contain the new provision prohibiting an MDJ from acting as an arbitrator. Finally, the existing Note to the rule would be deleted and replaced with a revised Note that cross-references Canon 5E of the Code of Judicial Conduct and Section 3304 of the Judicial Code.

B.  Rule 14

   The Committee proposes that Rule 14 also be restructured to enhance readability. Under the Committee proposal, the two existing subdivisions would remain, but the specific provisions restricting the practice of law by an attorney-MDJ would be consolidated and tabulated in subdivision A. Very significantly, the introductory sentence in subdivision A would be amended to read, ''[i]n addition to the general prohibitions in Rule 13, the following prohibitions apply to a magisterial district judge who is an attorney.'' This is intended to clarify that the provisions of Rule 13, including the arbitration provision, apply to all MDJs, including attorney-MDJs. In addition, the restrictions on lawyers who are associated with the attorney-MDJ from appearing before him or her would be moved to subdivision B. Finally, the Committee proposes minor editorial changes to conform with modern drafting style. The Committee proposes that the existing Note to the rule be deleted entirely.

C.  Rule 15

   The Committee does not propose any substantive changes to Rule 15 in connection with the arbitration issue. In its review of the rule, however, the Committee identified the need for, and thus proposes, extensive editorial changes to enhance readability and conform with modern drafting style. In addition, the Committee proposes an addition to the Note to clarify that nothing in the rule is intended to prohibit incidental benefit to an MDJ or candidate for the office of MDJ from the otherwise legitimate use of campaign funds, such as the food consumed while attending a political party dinner or other function.

[Pa.B. Doc. No. 07-2398. Filed for public inspection December 28, 2007, 9:00 a.m.]

_______

¹  Although the title ''district justice'' was in use when the Committee began reviewing this topic, this Report will use the current title of ''magisterial district judge''.

²  207 Pa. Code Ch. 51, Rules 13, 14, and 15.

³  As used in this Report, ''contractual arbitration'' refers to arbitration agreed to by the parties (e.g., as in many uninsured or underinsured motorist cases) and in which the arbitrators' fees are paid by the parties. ''Compulsory arbitration'' refers to arbitration governed by Section 7631 of the Judicial Code, 42 Pa.C.S. § 7361, and Pa.R.C.P. Nos. 13-1-1314, in which the arbitrators' fees are paid by the court or county government.

⁴  The Supreme Court does not adopt the Committee's Notes to the rules.

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