PENNSYLVANIA Report on the Judicial Discipline System

June 2011

Sponsored by the American Bar Association Standing Committee on Professional Discipline

©2011 American Bar Association. All rights reserved.

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PENNSYLVANIA JUDICIAL DISCIPLINE SYSTEM CONSULTATION TEAM

Professor Myles V. Lynk Phoenix, Arizona

Honorable Barbara K. Howe

Towson, Maryland

John Gleason Denver, Colorado

Ellyn S. Rosen, Reporter

Chicago, Illinois

Ruth A. Woodruff Chicago, Illinois

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PENNSYLVANIA JUDICIAL DISCIPLINE SYSTEM...................................................... 2 CONSULTATION TEAM ...................................................................................................... 2 I. INTRODUCTION............................................................................................................ 5

A. Judicial Independence and the American Bar Association Judicial Discipline Consultation Program ......................................................................................................... 5 B. Persons Interviewed and Materials Reviewed for Pennsylvania ............................. 6

II. OVERVIEW..................................................................................................................... 7 A. Summary of Challenges Facing the Pennsylvania Judicial Discipline System......... 7 B. Strengths of the Pennsylvania Judicial Discipline System.......................................... 8 C. The Pennsylvania Judicial Discipline System .............................................................. 9

1. The Pennsylvania Judiciary ....................................................................................... 9 2. The Pennsylvania Judicial Conduct Board .............................................................. 9

D. The Investigative Process ............................................................................................ 12 E. Formal Disciplinary Proceedings ................................................................................ 15 F. The Supreme Court of Pennsylvania .......................................................................... 17

III. STRUCTURE OF THE JUDICIAL CONDUCT BOARD........................................ 19 Recommendation 1: Changes to the Organization of and Appointments to the Judicial Conduct Board and Court of Judicial Discipline Should Be Studied ........................... 19

A. The Rules Should Address the Possibility of Tie Votes ........................................ 19 B. The Supreme Court of Pennsylvania and the Office of the Governor Should Increase Transparency of the Process by Which Members Are Appointed to the Board and the Court of Judicial Discipline ................................................................. 20 C. Modifications to Term Limits for Members of the Board and Court of Judicial Discipline Should be Adopted ....................................................................................... 21

IV. CASELOAD MANAGEMENT, RESOURCES, AND FUNDING ........................... 22 Recommendation 2: The Processes for Dismissals After Preliminary Inquiry Should be Streamlined .................................................................................................................... 22 Recommendation 3: The Board Should be Adequately Resourced ............................. 25

A. Allocation of Staff and Volunteer Time ................................................................. 25 B. The Board and Chief Counsel’s Office Must be Provided With Enhanced Technology Resources.................................................................................................... 27 C. The Board and Supreme Court of Pennsylvania Should Explore Additional Ways to Fund the System .............................................................................................. 28 D. When Resources Become Available, the Board Should Hire Additional Staff .. 29

V. PUBLIC OUTREACH AND TRAINING .................................................................. 31 Recommendation 4: The Judicial Conduct Board Must Increase Outreach and Accessibility to the Public, the Judiciary and the Bar .................................................... 31 Recommendation 5: Formal Training of the Judicial Conduct Board Should Be Mandatory .......................................................................................................................... 34

VI. PROCEDURAL RULES: JUDICIAL CONDUCT BOARD..................................... 36 Recommendation 6: The Board Should Eliminate the Requirement that Complaints be Verified........................................................................................................................... 36

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Recommendation 7: The Board Should Reconsider Special Handling of Anonymous Complaints .......................................................................................................................... 38 Recommendation 8: Complainants Should be Apprised of the Status of Their Complaints, Not Just Their Final Disposition ................................................................. 41 Recommendation 9: The Board Should Amend Its Procedural Rules and Eliminate the Four Year Statute of Limitations ............................................................................... 43 Recommendation 10: Confidentiality Requirements Should Be Revised .................... 44 Recommendation 11: The Requirement that Chief Counsel’s Office Verify Formal Charges Filed With the Court of Judicial Discipline Should be Eliminated ................ 48

VII. SANCTIONS ................................................................................................................ 49 Recommendation 12: The Rules Should Provide for Discipline on Consent............... 49 Recommendation 13: Judges Who Have Committed Serious Misconduct Should Not be Able to Resign in Lieu of Facing Formal Charges and Continue to Retain Full Retirement Benefits............................................................................................................ 50 Recommendation 14: The Court of Judicial Discipline Should Develop Procedures to Enhance Consistency in the Imposition of Sanctions ..................................................... 51

VIII. CONCLUSION............................................................................................................. 52 APPENDIX A ......................................................................................................................... 53 TEAM MEMBER BIOGRAPHIES ................................................................................................ 54

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I. INTRODUCTION

A. Judicial Independence and the American Bar Association Judicial Discipline Consultation Program

An independent judiciary is vital to the success of American democracy. As noted by the Report of the ABA Commission on the 21st Century Judiciary:

[A]n independent judiciary guarantees every citizen access to a branch of government designed to protect the rights and liberties afforded by federal and state constitutions and to resolve disputes peacefully and impartially. Fundamental to this unique role of the courts is the necessity for the judiciary to be distinct from the other two branches of government, functioning independently....1

Judicial independence, as traditionally understood, refers to the ability of judges and the courts to render decisions based on the Constitution, statutes, court rules, precedent and common law principles without interference by the other branches of government. Under our system of government, judges must be able to render decisions in accordance with the law even though their decisions may sometimes be unpopular.

Without judicial accountability, the maintenance of judicial independence is jeopardized.

Judicial accountability is absolutely essential to preserving public trust and confidence in our courts. Judges are entrusted to uphold the law independently and impartially. When they violate that trust, it is vital that processes be in place to correct the problem.... It all but goes without saying that to be effective, codes of judicial conduct must be enforced.2

Judicial conduct commissions, with due process protections and procedural rules, preserve the independence of the judiciary by ensuring accountability for adherence to the Code of Judicial Conduct.3 In all states and the District of Columbia judicial discipline falls under the judicial branch of government. The Judicial Conduct Board and the Court of Judicial Discipline are responsible for investigating and adjudicating allegations of judicial misconduct in Pennsylvania. While the Supreme Court of Pennsylvania, the Judicial Conduct Board, and the Court of Judicial Discipline retain primary responsibility for ensuring that the Commonwealth’s judges are accountable for their conduct, the executive and legislative branches also have some responsibility. For example, the Pennsylvania Constitution provides 1 American Bar Association (2003). Report of the Commission on the 21st Century Judiciary, Justice in Jeopardy, at iii., http://www.abanet.org/judind/jeopardy/pdf/report.pdf . 2 Id. at 57 and 58. 3 See, e.g., James J. Alfini, Shailey Gupta-Brietzke, and James F. McMartin, IV., Dealing With Judicial Misconduct in the States: Judicial Independence, Accountability, and Reform, 48 S. Tex. L. Rev. 889 (Summer 2007); and Cynthia Gray, The Line Between Legal Error and Judicial Misconduct: Balancing Judicial Independence and Accountability, 32 Hofstra L. Rev. 1245 (Summer 2004).

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that the governor and the Court share responsibility for appointing members to the Judicial Conduct Board and the Court of Judicial Discipline4; the legislature has budgetary duties.5

The American Bar Association has long recognized the connection between preserving judicial independence and the need for judges to be accountable for their conduct. In February 1978, the American Bar Association adopted the Standards Relating to Judicial Discipline and Disability Retirement as a national model for enforcement of state judicial conduct codes. To assist jurisdictions in the implementation of these standards, in June 1979, the ABA Standing Committee on Professional Discipline and the ABA Judicial Administration Division developed Model Rules for Judicial Discipline and Disability Retirement. In February 1990, the Discipline Committee and the Judicial Administration Division created a Joint Subcommittee on Judicial Discipline. The Joint Subcommittee had the following goals: (1) to assure conformity with the new ABA Model Code of Judicial Conduct; (2) to ensure prompt and fair discipline for judges; (3) to ensure the protection of the public and the judiciary; (4) to protect the independence of the judiciary; and (5) to establish a model for states to use as a resource to establish improved judicial discipline systems. The Joint Subcommittee’s proposals were submitted to the ABA House of Delegates, and on August 9, 1994, the House adopted the new ABA Model Rules for Judicial Disciplinary Enforcement (MRJDE). In 1990 (and again in 2007), the American Bar Association significantly revised its Model Code of Judicial Conduct.

B. Persons Interviewed and Materials Reviewed for Pennsylvania The Supreme Court of Pennsylvania and the Judicial Conduct Board invited the ABA Standing Committee on Professional Discipline to perform a review of its judicial discipline system. The Committee’s consultation team conducted the on-site portion of the consultation from January 11 – 14, 2011. Interviewees included the Chief Counsel and his staff, members of the Judicial Conduct Board and the Court of Judicial Discipline (judge, lawyer, and public members), other Commonwealth judges, bar association leaders, members of not-for-profit consumer organizations, complainants, respondent judges and their counsel, and the Chief Disciplinary Counsel for the lawyer discipline system. The team also met with members of the Supreme Court of Pennsylvania. The team reviewed significant documentation relating to the Pennsylvania judicial regulatory system including, but not limited to, the Pennsylvania Constitution, the Rules of Procedure for the Judicial Conduct Board and Court of Judicial Discipline, iterations of the Board’s Internal Operating Procedures, the Court of Judicial Discipline’s Internal Operating Procedures, the

4 PA. CONST. art. V, § 18(a)(2) and (3), and § 18 (b)(1) and (2). 5 Id. at § 18(a)(6) and 18(b)(4). See also, 42 Pa C.S.A. § 2102 – 2106.

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Conduct Rules governing members of the Judicial Conduct Board and the Court of Judicial Discipline, the current Code of Judicial Conduct, annual reports, caseload and budget information, and relevant Pennsylvania Supreme Court opinions. The consultation team also reviewed the Report of the Interbranch Commission on Juvenile Justice as well as pending legislation directed at the judicial discipline system that was proposed in response to the misconduct that occurred in Luzerne County, Pennsylvania. The team is grateful to all the participants in the consultation for their time, effort and forthrightness. The commitment of the Supreme Court, the Judicial Conduct Board, the Court of Judicial Discipline, and the office of the Board’s Chief Counsel to improving the system is laudable. II. OVERVIEW

A. Summary of Challenges Facing the Pennsylvania Judicial Discipline System The consultation team and the Standing Committee on Professional Discipline are aware of the serious challenges posed to Pennsylvania’s justice system as a result of the misconduct that occurred in Luzerne County. The effect of those events on the public’s and the profession’s confidence in the system is well documented. The information provided to the consultation team was very troubling.6 While the incidents in Luzerne County and the action or inaction of lawyers, judges, and entities in response to them provided important context for the team’s study, that series of events was not the focus of the consultation team’s or the Standing Committee’s review. Rather, the misconduct committed in Luzerne County illustrates the vulnerabilities of the system as currently structured. The Standing Committee on Professional Discipline was asked to study the Pennsylvania judicial discipline system holistically to determine whether there are ways in which the system can improve its effectiveness and efficiency. That is the goal of this Report; the recommendations set forth in this Report are forward-looking. The commitment of the Supreme Court, Judicial Conduct Board, the Court of Judicial Discipline, and the staff of the Chief Counsel’s Office to improving the system is evident from the invitation to the consultation team to conduct its study, and their thoughtful questions and suggestions for improvements. The Supreme Court and the Judicial Conduct Board have already begun to implement changes to the judicial discipline system that will benefit the public, the legal profession, and the judiciary.7 The consultation team hopes that

6 The Interbranch Commission Report, legislation proposed by the Pennsylvania legislature and other well- publicized records were among the myriad of materials reviewed by the consultation team. These materials describe in detail the facts and circumstances surrounding the events in Luzerne County. 7 See, e.g., A Progress Report on Implementation of the Recommendations of the Interbranch Commission on Juvenile Justice, the Honorable Chief Justice Ronald D. Castille, March 1, 2011. The Supreme Court has ordered amendment of the Rules of Judicial Administration to require judges receiving notice that they are the target of an investigation by law enforcement to notify the Court within five days. The Judicial Conduct Board Rules of Procedure currently provide that, upon becoming aware that a judge is subject

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the recommendations contained in this Report will help the Supreme Court and the Board to continue to move forward and strengthen the system in a thoughtful way. The Standing Committee also understands that, in order to implement a number of the recommendations in this Report, amendments to the Pennsylvania Constitution may be required. The Standing Committee is aware that the amendment process is fraught with challenges. The Committee urges the Supreme Court, the Board, the judiciary, the bar, and the other branches of government to work together to determine the best way to overcome these obstacles for the benefit of the people of Pennsylvania, and to ensure the continued independence and accountability of the Pennsylvania judiciary. Other challenges facing the system are funding and resource related. In order to ensure that the Board is optimally visible and accessible to the public, and that it processes cases in the most efficient and effective way, additional resources will be needed. In particular, the Board lacks necessary technology. The Discipline Committee’s suggestions for enhancing the Board’s resources in the current economy will be discussed in greater detail below.

B. Strengths of the Pennsylvania Judicial Discipline System This Report provides suggestions based upon the ABA Model Rules for Judicial Disciplinary Enforcement and the consultation team’s collective knowledge of and experience in judicial regulation. The justices of the Supreme Court of Pennsylvania and the members of the Judicial Conduct Board and Court of Judicial Discipline understand that accountability of the judiciary is critical to preserving its integrity and independence. The fact that hearings before the Court of Judicial Discipline are public and the Board and Court of Judicial Discipline have developed and implemented rules governing their conduct is laudable and facilitates public trust and confidence. The Pennsylvania system as currently structured provides respondent judges with appropriate levels of due process. It is also important, and the Pennsylvania Constitution provides, that the Board, Chief Counsel’s Office and the Court of Judicial Discipline are absolutely immune from suit for conduct during the course of their official duties. The Discipline Committee was impressed with the judicial discipline system’s recognition that, in order to be truly effective, it must address situations where judges may suffer from substance abuse as well as mental and physical disabilities. In the Discipline Committee’s experience these issues arise with more frequency in both the lawyer and judicial disciplinary context. Not only does the Pennsylvania Constitution address these issues, but the Judicial Conduct Board has developed Special Procedures for Cases Involving Mental and Physical Disability and Special Procedures for Cases Involving Substance Abuse. The Court of

to an indictment or information charging that judge with a felony, the Board may file an appropriate notice with the Court of Judicial Discipline, or where it becomes aware of information implicating the Supreme Court’s inherent authority, it may file notice with that Court.

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Judicial Discipline also has a rule setting forth procedures for cases involving mental or physical disability.

C. The Pennsylvania Judicial Discipline System

1. The Pennsylvania Judiciary

Pennsylvania has a unified judicial system.8 The Supreme Court of Pennsylvania, the Superior Court, and the Commonwealth Courts are appellate courts; the Court of Common Pleas is the main trial court. A number of community, municipal and traffic courts also exist. Citizens initially choose Pennsylvania judges and justices in partisan elections. After serving initial ten-year terms, judges and justices are then subject to non-partisan retention elections.9 The Governor of Pennsylvania may fill vacancies by appointment with advice and consent of two-thirds of the Pennsylvania Senate.10 In addition to being subject to the jurisdiction of the Judicial Conduct Board and the Court of Judicial Discipline, Pennsylvania judges may be impeached.

2. The Pennsylvania Judicial Conduct Board The Pennsylvania Constitution vests in the Supreme Court of Pennsylvania the authority to prescribe rules and procedures governing the administration of the judicial branch of government and the supervision of all judicial officers.11 Pursuant to this authority the Supreme Court of Pennsylvania adopted the Pennsylvania Code of Judicial Conduct and the Rules Governing Standards of Conduct of Magisterial District Judges (formerly Justices of the Peace). The Court has also exercised its “King’s Bench” power to enter interim suspension orders against judges.12 The Pennsylvania Constitution provides for the establishment of the Judicial Conduct Board as an independent board within the judicial branch to investigate and prosecute allegations of judicial misconduct.13 Supreme Court Justices, judges of the Superior and Commonwealth

8 PA. CONST. art. V, § 1. 9 Id. at § 13 and 15. 10 Id. at § 13(b). 11 Id. at § 10. 12 See, e.g., In re Merlo, 2011 WL 453008 (Pa. February 10, 2011). In Merlo, the Court stressed that the exercise of its King’s Bench power stemmed from its Constitutional supervisory authority over the courts, and that the interim suspension was imposed “...to ensure the smooth functioning of the administration of justice...” The Court clarified that its interim suspension of Merlo was not part of the disciplinary process. The authority to suspend on an interim basis a respondent judge as part of the disciplinary process belongs to the Judicial Conduct Board. 13 PA. CONST. art. V, § 18(a). The Board was created in 1993 as a result of a constitutional amendment, as was the Court of Judicial Discipline, to separate prosecutorial and adjudicative functions, thereby creating a two-tiered judicial discipline system. The amendments were the result of a study and report issued by the Judicial Reform Commission (commonly referred to as the Beck Commission after its chair, Superior Court Judge Phyllis W. Beck). Prior to that time Pennsylvania operated under a unitary system of judicial discipline called the Judicial Inquiry and Review Board. The most recent information from the American Judicature Society

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Courts, Court of Common Pleas, Magisterial District Judges, judges of the Philadelphia Municipal and Traffic Courts, and judges of the Pittsburgh Magistrates Court are subject to the Board’s jurisdiction.14 The Judicial Conduct Board has 12 members comprised of: one judge from the Superior Court or Commonwealth Court and one judge from the Court of Common Pleas; one Magisterial District Judge who need not be a lawyer; three lawyer members; and six nonlawyer public members.15 The Supreme Court is responsible for appointing the judge from the Superior Court or Commonwealth Court, the Magisterial District Judge, one of the lawyer members, and three of the public nonlawyer members.16 The Governor of Pennsylvania appoints the judge from the Court of Common Pleas and the remainder of the lawyer and nonlawyer members.17 No more than three of the six Supreme Court appointees may be members of the same political party; the same is required of the Governor’s appointees.18 Board members may not hold office in a political party or organization during their tenure, and only judge members may hold public office.19 Board members serve four-year terms without compensation and may not serve in excess of four consecutive years without an intervening one year lapse in service.20 Members of the Board and its staff have absolute immunity for conduct committed during the course of their official duties.21 The Constitution provides that the Board may promulgate rules governing the conduct of its members as well as its own Rules of Procedure.22 The Constitution further states that the Board should elect its Chair annually and that it may act only with the concurrence of a majority of members.23 Rule 4 of the Board’s Rules of Procedure provides that, in addition to electing a Chair, at its first meeting each year the Board also elects a Vice-Chair and a Secretary. The Internal Operating Procedures of the Board also provide that the Chair recommends for Board approval the creation of any committees to assist members in the performance of Board duties. The existing standing committees of the Board are its Personnel Committee, Legal Review Committee, and Record Retention Committee.24 The team was

shows Alabama, Delaware, Illinois, Oklahoma (actually a three-tier system), West Virginia and Wisconsin as having a two-tiered judicial discipline system like that in Pennsylvania. Those systems are comprised of permanent and separate entities to investigate/prosecute complaints against judges and to conduct trials on formal charges. 14 See, J.C.B.R.P., Rules 1 and 3. 15 PA. CONST. art. V, § 18(a)(1). 16 Id. at § 18(a) (2). 17 Id. 18 Id. at § 18(a)(3). 19 Id. at § 18(a)(4). 20 Supra note 18. 21 PA. CONST. art. V, § 18(a)(10). 22 Id. at § 18(a)(5) and (6). 23 Supra note 18. 24Internal Operating Procedures of the Judicial Conduct Board of Pennsylvania, Internal Operating Procedure 2.05, January 8, 2010 (hereinafter Internal Operating Procedures), available at http://judicialconductboardofpa.org/the-board/how-the-board-operates/ .

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advised that the Board currently meets at least six times per year, and that additional meetings are scheduled when necessary to accomplish the Board’s business. At the time of the team’s visit, the Board required staff to complete verbatim minutes of its meetings. The team was advised that these minutes often ran over 100 pages double sided. The Board has since stopped that practice. The Board is responsible for developing and administering its budget. Its request for funds is included as a separate item in the Supreme Court’s budget request to the legislature on behalf of the entire judiciary.25 Members may receive reimbursement of business related travel and other expenses.26 The Board’s budget funds its operations, equipment, salaries and benefits for staff. The Board does not pay rent for its office space. The team was advised that, at the time of its visit, the Board Chair must approve any request for payment or reimbursement, regardless of dollar amount, before the invoice can be sent to the Administrative Office of Pennsylvania Courts for payment. This includes all invoices from vendors. In Fiscal Year 2008 – 2009, the Board’s budget was $1,182,000. The Board received the same amount in Fiscal Years 2009 – 2010 and 2010 – 2011. According to budgetary information provided by the Board, it has requested $1,896,000 for Fiscal Year 2011 – 2012. The Board hires the Chief Counsel and staff (lawyers, investigators, and paralegals).27 All serve at the pleasure of the Board. Current Board staff includes the Chief Counsel, the Deputy Chief Counsel, Assistant Counsel, three investigators, a paralegal, legal secretary and the executive secretary. One investigator has an office in Pittsburgh, one in Harrisburg, and the third operates from Philadelphia. All counsel and investigators are required to keep and maintain daily time records so that the Board can determine how its staff is using Board resources.28 The Chief Counsel is responsible for managing and supervising the daily activities of the office, including but not limited to, receipt of complaints against judges and the preliminary evaluation of them, investigation of complaints and making recommendations to the Board for disposition, the prosecution of complaints, and administrative duties such as maintaining Board records and preparing the required annual report. The team was advised that the Chief Counsel currently spends approximately 2/3 of his time handling a caseload and the remainder of his time on administrative matters. His caseload duties include screening complaints, investigating them, and prosecuting cases before the Court of Judicial Discipline.

25 PA. CONST. art. V, § 18(a)(6). 26 Supra note 19; Judicial Conduct Board, Board-Related Business Expenses—Policy and Procedures, adopted February 5, 2007. 27 Supra note 25. See also, J.C.B.R.P., Rule 5; Internal Operating Procedure 3.01. 28 Internal Operating Procedure 9.02.

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D. The Investigative Process The Pennsylvania Constitution states that the Board “shall receive and investigate complaints regarding judicial conduct filed by individuals or initiated by the Board.29 The Board accepts anonymous complaints. The Board requires that complaints be submitted in writing and the complainant is required to sign and verify the complaint under penalty of perjury.30 A complaint form is available in Word and via PDF for download on the Board’s website along with a brochure describing the system.31 The website warns against filing frivolous complaints, stating that, “...anyone who knowingly files a false complaint may face criminal charges.”32 Upon receipt of a complaint, the executive secretary date stamps it as received, attaches available information about the judge against whom the complaint has been made, and sends it to the Chief Counsel for screening. The Chief Counsel reviews each incoming complaint within one to two days. If the complaint does not fall under the Board’s jurisdiction, the Chief Counsel may determine to proceed no further without having to seek Board approval. In these instances, the Chief Counsel must notify the complainant and refer that individual to an agency with jurisdiction, where appropriate.33 If the complaint alleges facts, which if true, would constitute grounds for disciplining a judge, the Chief Counsel directs that a file be opened and he ranks the complaint in terms of seriousness. Current Board policy requires that urgent priority be given to complaints that involve “the potential for extreme prejudice to the administration of justice, as well as to matters having an immediacy factor such as complaints involving political campaign issues.”34 The complaint is then assigned to counsel and an investigator to conduct the preliminary investigation. The legal secretary enters the case information into an Access database consisting of 17 relational tables. She downloads case information from the database into an Excel spreadsheet that constitutes the “Intake/Status Log” that the Board requires Chief Counsel and staff to present at monthly meetings.35 Chief Counsel’s office updates the Access tables and Intake/Status Log regularly for inclusion as part of the Board’s business agenda at each meeting.36 Neither the Board nor Chief Counsel’s Office has caseload management software. The Chief Counsel’s Office must enter all anonymous complaints into the Log and provide them to the Board for review and approval prior to opening a file or beginning a preliminary

29 PA. CONST. art. V, § 18(a)(7). 30 J.C.B.R.P., Rule 25; Internal Operating Procedure 4.02. 31 See, http://judicialconductboardofpa.org/filing-a-complaint/. 32 Id. 33 J.C.B.R.P., Rule 26. 34 Internal Operating Procedure 2.06 and 4.01. The consultation team was advised that the Board was considering these changes prior to the time that the Interbranch Commission on Juvenile Justice released its Report, and expedited its deliberations and approval of them upon receipt of that document. 35 Internal Operating Procedure 2.06. 36 Id. and Internal Operating Procedure 4.04.

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investigation.37 This appears to be the case even if, on its face, the anonymous complaint falls outside the Board’s jurisdiction, and could normally be disposed of by the Chief Counsel. The team was advised that the Board adopted this Internal Operating Procedure in response to the Luzerne County matter. The Board also requires the Chief Counsel to record the identity of any anonymous complainant should that individual’s name become known from other sources.38 As part of the preliminary inquiry, the Chief Counsel and his staff are permitted to conduct interviews of the complainant and relevant witnesses, and to obtain and review public records, including transcripts.39 The judge against whom the complaint has been filed need not be notified of the matter at this stage of the proceedings. However, if necessary and without Board approval, the Chief Counsel’s Office may issue to the judge against whom the complaint has been filed a Chief Counsel’s Letter of Inquiry.40 The Letter of Inquiry must state that it is being issued pursuant to the Board’s general authority, but that the Board has not yet reviewed the complaint.41 The Board’s Internal Operating Procedures also provide for a Board-approved formal “JCB Letter of Inquiry.”42 According to Internal Operating Procedure 4.10, the Board views a Letter of Inquiry as a “less serious mode of inquiry than a Notice of Full Investigation into a matter which would unlikely result in a Court of Judicial Discipline case.” Internal Operating Procedure 4.10 does not differentiate between the two types of Letters of Inquiry described above. Letters of Inquiry referenced in Internal Operating Procedure 4.10 should not reference possible Constitutional or Judicial Code violations and need not apprise the respondent judge of a right to counsel. Such notice is required in a Notice of Full Investigation. The Letters are intended to be only a more formal means of seeking information, although they could lead to a Notice of Full Investigation. At the conclusion of the preliminary inquiry, counsel assigned to the file is required to prepare a written summary of the matter and recommendations for Board action. The Board sets forth specific requirements for these written summaries in its Internal Operating Procedures.43 The summaries must include the names of the complainant and judge, relevant background information about the judge including prior discipline, an accurate recitation of the allegations in the complaint, the scope and results of the preliminary inquiry, Judicial Code provisions implicated and relevant legal and factual analysis, and the recommended disposition including counsel’s rationale and any mitigating factors (this Internal Operating Procedure does not specify that aggravating factors need be included).44 The Board has developed non-exclusive factors to be considered in evaluating cases.45 Chief Counsel is required to divide these

37 Internal Operating Procedure 4.03. 38 Id. 39 Internal Operating Procedure 4.04. 40 Id. 41 Id. 42 Id. 43 See also, J.C.B.R.P., Rule 27 for the more general reporting requirement. 44 Internal Operating Procedure 2.08. 45 See, http://judicialconductboardofpa.org/.

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reports into two packets for Board consideration. The first is the “Dismissal After Preliminary Investigation” packet or “DAPI” packet; the second consists of all other matters.46 Counsel may recommend that the Board dismiss the complaint, proceed with a full investigation or, if appropriate, defer action during the pendency of criminal proceedings.47 Based upon the Board’s Rules of Procedure and Internal Operating Procedures, it appears that the 4 year statute of limitations on filing complaints may serve as a basis for dismissing a matter after preliminary investigation.48 In response to Counsel’s reports and recommendations the Board may dismiss the complaint, request additional inquiry, authorize a full investigation, defer the matter where appropriate pending a criminal investigation or refer the matter to another agency.49 If the Board determines there is a basis for further investigation, counsel issues a Notice of Formal Investigation (NOFI) to the respondent judge.50 The NOFI must set forth information that includes, but is not limited to, the specific allegations under investigation; the specific rule, statute or Constitutional provisions alleged to have been violated; that the judge has the right to counsel and to provide a written response within 20 days; and, if the Board deems it appropriate, the name of the complainant.51 If the preliminary investigation yields information indicating that the judge suffers from a disability or impairment, the Board may ask the Court of Judicial Discipline to appoint a lawyer to represent that judge and also require the judge to undergo an examination.52 If the Board subsequently finds probable cause to file a formal complaint based upon such disability or impairment, the Board may request that the judge resign or enter a rehabilitation program and take any necessary leave of absence.53 At the conclusion of a full investigation, the Board determines whether to dismiss the matter or take further action. For example, the Board may dismiss a matter with no further action, dismiss the case with a Letter of Caution (not considered a disciplinary measure), or issue a Letter of Counsel (considered an informal disciplinary measure) to which the respondent judge must agree or face formal charges.54 The Board may also determine that probable cause

46 Supra note 44. 47 Supra note 43. 48 J.C.B.R.P., Rule 15; Internal Operating Procedure 4.11. The Pennsylvania Constitution does not set forth any statute of limitations for filing and consideration of complaints. 49J.C.B.R.P., Rule 28; Internal Operating Procedure 4.05. 50 J.C.B.R.P., Rule 30(B); Internal Operating Procedure 4.05. 51 J.C.B.R.P., Rule 30(B); Internal Operating Procedure 4.10 and 4.11. See also, PA. CONST. art. V, § 18(a)(8), stating that the respondent judge is entitled to notice of the nature and content of the complaint and an opportunity to respond prior to the Board making any determination of probable cause. 52 J.C.B.R.P., Rules 32 and 33; Internal Operating Procedure 4.12. 53 PA. CONST. art. V, § 18(a)(9); J.C.B.R.P., Rules 32 – 38. Rules of Procedure 36 – 38 set forth specific procedures for rehabilitative diversion. 54 Internal Operating Procedure 4.11.

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exists to warrant the filing of formal charges with the Court of Judicial Discipline.55 Chief Counsel’s Office is responsible for preparing the formal charges for filing with the Court of Judicial Discipline and prosecuting them on the Board’s behalf. When matters are dismissed prior to the filing of formal charges with the Court of Judicial Discipline, the Board may, in its discretion, advise the complainant of that disposition along with an explanation of the reasons for the dismissal and the actions taken during the course of the investigation.56 Such information also may be provided to the judge if, at the DAPI stage, the judge becomes aware of the matter. The consultation team was advised that, based upon the Constitutional provisions and Board Rules relating to confidentiality of matters pending before it, complainants are not provided with information about their complaints during the pendency of an investigation.57 According to the Board’s 2009 Annual Report, it received 681 complaints that calendar year.58 There also were a number of matters that carried over from previous years. The 2009 Annual Report notes that 87% of complaints are dismissed by the Board at the DAPI stage. The team was advised that the Board reviews the DAPI files every other month, and that the Board has initiated a new procedure of reviewing them by teleconference. The Board closed 698 files in 2009. That year the Board issued 20 Notices of Formal Investigation (NOFI) and dismissed 8 matters after a formal investigation. The Board issued 12 Letters of Caution, 4 Letters of Counsel (analogous to a private reprimand), deferred 7 matters pending criminal investigation, and filed formal charges with the Court of Judicial Discipline against 3 judges. Data provided to the team by the Board and Chief Counsel’s Office showed that, at the time of the consultation team’s visit there was a backlog of approximately 400 matters; at the time this report was drafted the backlog consisted of 386 matters.

E. Formal Disciplinary Proceedings Formal charges against judges are heard by the Court of Judicial Discipline. The Court of Judicial Discipline is comprised of eight members: three judges from the Court of Common Pleas, the Superior Court or the Commonwealth Court; one Magisterial District Judge; two nonjudge lawyers; and two nonlawyer public members.59 The Supreme Court of Pennsylvania appoints two judges, the Magisterial District Judge, and one of the nonlawyer members.60 The Governor of Pennsylvania appoints one judge, the two lawyer members and

55 Supra note 29. 56 PA. CONST. art. V, § 18(a)(8); J.C.B.R.P., Rule 30(A). 57 Id. Issues relating to confidentiality are discussed in greater detail in Recommendation 10 below, including the implications of Supreme Court of Pennsylvania’s decision in In re Interbranch Commission of Juvenile Justice, 988 A. 2d 1269 (Pa. January 29, 2010). 58 This number excludes complaints that were submitted to the Board but were determined to fall outside its jurisdiction. In those matters files are not opened. 59 PA. CONST. art. V, § 18(b)(1). 60 Id.

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se of their official duties.65

.68

the remaining nonlawyer member.61 No more than two of the Supreme Court’s appointees may be members of the same political party; the same is required of the Governor’s appointees.62 Court of Judicial Discipline members may not hold office in a political party or organization during their tenure, and only judge members may hold public office.63 Court members serve four-year terms without compensation (their expenses are reimbursed) and may not serve in excess of four consecutive years without an intervening one-year lapse in service.64 Members of the Court of Judicial Discipline and its staff have absolute immunity for conduct committed in the cour The Constitution provides that the Court of Judicial Discipline may promulgate rules governing the conduct of its members as well as its own rules of procedure.66 It has done so. The Court of Judicial Discipline is responsible for developing and administering its budget and its request for funds is included as a separate item in the Supreme Court’s budget request to the legislature on behalf of the entire judiciary.67 The Court is responsible for appointing its own staff As noted above, Chief Counsel’s Office is responsible for preparing and filing formal charges with the Court on behalf of the Board. The Chief Counsel is required to provide to the Board’s Legal Review Committee in advance of filing all proposed pleadings for review and comment, including but not limited to, the formal charges, motions, briefs, discovery requests and responses, and deposition notices.69 Court of Judicial Discipline Rules provide that the complaint setting forth the formal charges must contain specific allegations of fact and state plainly and specifically the nature of the charges.70 Counsel is required to verify the complaint.71 Within 10 days of service of the complaint, the Court of Judicial Discipline’s Presiding Judge appoints a Conference Judge to handle pre-trial matters and indicate when the matter is ready to proceed to trial.72 Formal charges and matters proceeding before the Court of Judicial Discipline are public.73 The respondent judge is served with formal charges and a notice of the due date of the Omnibus Motion pursuant to the Court’s Rule 411 is required. The timing of the respondent judge’s answer depends upon the resolution of the Omnibus Motion, if one is filed.74 If a

61 Id. 62 Id. at § 18(b)(2). 63 Id. at § 18(b)(3). 64 Supra note 62. 65 Id. at § 18(b)(6). 66 Id. at § 18(b)(3) and (4). 67 Id. at § 18(b)(4). 68 Id. 69 Internal Operating Procedure 2.05.2. 70 C.J.D.R.P., Rule 302. 71 Id. 72 C.J.D.R.P., Rule 301. 73 PA. CONST. art. V, § 18(b)(5). 74 C.J.D.R.P., Rule 413.

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ed.86

judge fails to answer, the charges are deemed admitted, and unless otherwise ordered no further pleading by the respondent will be accepted.75 The standard of proof in formal judicial disciplinary proceedings is clear and convincing evidence, and hearings must be conducted in accordance with the rules of evidence.76 Broad discovery is permitted. Hearings may be held before a panel of the Court that may not consist of fewer than three Court members.77 The Conference Judge must be a member of the panel. The Rules of the Court of Judicial Discipline provide that, when possible, a nonlawyer member should participate.78 The matter may also be heard by the entire Court. Prior to the hearing the Court may order an interim suspension.79 At the conclusion of the trial the panel or full Court may request that Board counsel and the respondent judge submit proposed findings of fact and conclusions of law.80 The panel or Court report must include findings of fact and conclusions of law, must be in writing, and served upon the judge and the Board.81 If the matter is heard by a panel, the full Court must give deference to the panel’s factual findings.82 Within 10 days after their entry, the Board or the judge may file written objections to the Court’s findings of fact and conclusions of law.83 The Court must promptly rule on those objections, and upon entry of an order disposing of them, hold a hearing on the issue of sanctions.84 After the hearing on sanctions, the Court of Judicial Discipline issues its final order of discipline.85 The Court may order that the judge be censured, suspended, removed from office or otherwise appropriately disciplin

F. The Supreme Court of Pennsylvania

The Supreme Court promulgates rules for the handling of appeals. Any judge can appeal to the Supreme Court of Pennsylvania an order of discipline entered by the Court of Judicial Discipline.87 If the respondent judge is a Justice of the Supreme Court, the appeal is heard by a special tribunal of seven judges chosen by lot.88 The Supreme Court or special tribunal applies to factual findings the “clearly erroneous” standard of review, while the standard for

75 Id. 76 Supra note 73. 77 C.J.D.R.P., Rule 501. 78 Id. 79 PA. CONST. art. V, § 18(d)(2); C.J.D.R.P., Rule 801. 80 C.J.D.R.P., Rule 502(B)(3). 81 Supra note 73; C.J.D.R.P., Rule 503(A). 82 Court of Judicial Discipline Internal Operating Procedures, Rule 103. 83 C.J.D.R.P., Rule 503(B). 84 C.J.D.R.P., Rule 503(C) and 504(A). 85 C.J.D.R.P., Rule 504(B). 86 PA. CONST. art. V, § 18(b)(5) and (d). 87 Id. at §18(c)(1). 88 Id.

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review of matters of law is plenary.89 With regard to sanctions, the Supreme Court or special tribunal may only decide whether the sanction imposed by the Court of Judicial Discipline is lawful.90 The Board may appeal the Court of Judicial Discipline’s dismissal of formal charges to the Supreme Court or to the special tribunal if the respondent is a Supreme Court Justice. Such appeals are limited to questions of law.91 The consultation team was advised that the Court of Judicial Discipline has never ordered a disciplined judge to reimburse the Board for the costs of the investigation and prosecution. However, information provided to the team indicates that judges who are not found to have committed misconduct at the investigative level or who have not been disciplined by the Court of Judicial Discipline may seek reimbursement of their attorneys’ fees from the Administrative Office of Pennsylvania Courts. The team was advised that the Administrative Office evaluates such claims for reimbursement under the standards set forth in Yurgosky v. Commonwealth of Pa., 722 A 2d 631 (Pa. Nov. 24, 1998).

89 Id. at §18(c)(2) 90 Id. 91 Id. at §18(c)(3).

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III. STRUCTURE OF THE JUDICIAL CONDUCT BOARD Recommendation 1: Changes to the Organization of and Appointments to the Judicial Conduct Board and Court of Judicial Discipline Should Be Studied

A. The Rules Should Address the Possibility of Tie Votes As noted above, the Judicial Conduct Board consists of 12 members appointed by the Governor and Pennsylvania Supreme Court. The Constitution states that the Board “shall act only with the concurrence of a majority of its members.”92 The Board’s Rules of Procedure and Internal Operating Procedures provide that an affirmative vote by a majority of Board members is required to dismiss a complaint, find probable cause to file formal charges with the Court of Judicial Discipline, and to change the Rules of Procedure; for other matters the Board may act upon a vote of the majority of Board members present at the meeting where the vote is taken.93 In order for the Board to have a quorum at a meeting, a majority of its members must be present.94 That the Board consists of an even number of individuals leaves open the possibility of a tie vote. While the Committee is unaware of this happening to date and understands the chances of that occurring may be minimal, the fact that it remains a possibility warrants consideration about how a tie vote should be addressed should one occur. An obvious solution is to adjust the number of members comprising the Board to an odd number. In the alternative, consideration may be given to developing a procedure for breaking any tie vote. Another option, and one that could help increase the efficiency with which complaints are processed, would be to allow the Board to act in two investigative panels comprised of five members each (the Chair and Vice Chair would not serve on these panels) for purposes of determining whether to dismiss a complaint after the preliminary investigation, conduct a full investigation, and file formal charges.95 These panels would not have to meet in person and could be provided electronically with information about the cases they are to consider. The Board’s Internal Operating Procedure 2.01 already encourages meeting via teleconference to resolve Dismissal After Preliminary Investigation (D.A.P.I.) cases, which are the majority of matters comprising the caseload. A similar risk of a tie vote exists on the Court of Judicial Discipline, which is comprised of eight members. The Constitution requires a majority vote of the Court for any action,

92 Supra note 18. 93 J.C.B.R.P., Rule 11; Internal Operating Procedure 2.09. 94 J.C.B.R.P., Rule 9; Internal Operating Procedure 2.02. 95 While the ABA Model Rules for Judicial Disciplinary Enforcement recommend that the Commission on Judicial Conduct be comprised of 12 members, they suggest dividing the Commission into two panels consisting of a 9 member Hearing Panel and 3 member Investigative Panel. The system proposed by the Model Rules is a one-tier system; Pennsylvania has a two-tier system. The Discipline Committee does not recommend that this change.

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including disciplinary action.96 Unlike the Board’s Rules, the Court’s Rules of Procedure permit a panel consisting of no fewer than three Court members to act on behalf of the full Court for purposes of serving as the trier of fact.97 The matter may also be heard by the entire Court. If the matter is heard by a panel, the full Court must give deference to the panel’s factual findings, but ultimately a majority of the Court must vote to uphold or reverse those findings.98 If the Court finds misconduct it then issues its final findings of fact and conclusions of law, and holds a hearing on sanctions. A majority of Court members must vote to impose discipline, which constitutes the final order. In light of the number of cases proceeding to hearing before the Court, there does not exist the same concern regarding the efficiency with which cases proceed as does at the Board level. The Discipline Committee suggests that similar study be given as to how to resolve the possibility of a tie vote at this level of the system, including, but not limited to having an odd number of Court members. The Discipline Committee understands that any of the options described above would likely require a constitutional amendment.

B. The Supreme Court of Pennsylvania and the Office of the Governor Should Increase Transparency of the Process by Which Members Are Appointed to the Board and the Court of Judicial Discipline

A number of interviewees also expressed concern to the consultation team that the process by which members are appointed to Board and the Court of Judicial Discipline lacks transparency. The Discipline Committee recommends that the Pennsylvania Supreme Court and the Governor of Pennsylvania should make these appointments by using an open, well publicized nomination process. Doing so will contribute to the public’s trust and confidence in the system. The Pennsylvania Supreme Court and Governor should consider creating nominating committees to screen candidates for appointment to the Board and Court of Judicial Discipline. Each nominating committee should consist of judges, lawyers, and public members. Public members should comprise at least one-third of the membership of the nominating committee. The nominating committees should develop specific criteria, approved by the Supreme Court and the Governor by which to screen candidates for each position it is looking to fill. Vacancies for the Board and Court of Judicial Discipline should be posted on the websites of the Pennsylvania Supreme Court, the Governor’s office, the Board, the Court of Judicial Discipline, and if appropriate, on the website of the Administrative Office of Pennsylvania Courts. An online application should be developed and applicants should be able to complete and submit those applications electronically.

96 Supra note 67. 97 C.J.D.R.P., Rule 501. 98 Court of Judicial Discipline Internal Operating Procedures, Rule 103.

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C. Modifications to Term Limits for Members of the Board and Court of Judicial Discipline Should be Adopted

Currently, members of the Board and Court of Judicial Discipline serve four-year terms. They are not subject to reappointment except after the expiration of a one-year interval. The Discipline Committee recommends consideration of allowing Board and Court of Judicial Discipline members to be eligible for reappointment for one full second four-year term.99 After the expiration of a second term, the Pennsylvania Supreme Court and Governor should seek to appoint new individuals. This commitment to public service should be long enough to promote consistency, but short enough to ensure the system benefits from new perspectives. The Discipline Committee is aware that a constitutional amendment to accomplish the establishment of term limits will be required. Appointments to the Board and Court of Judicial Discipline should not be made on the basis of politics or ideology. To do so would jeopardize their independence and necessary ability to function fairly, free of outside influence and in the public’s interest.100 That the Pennsylvania system is currently structured to try to address this is laudable. Appointments should be made in a manner that ensures diversity of Board and Court of Judicial Discipline membership. A limited number of interviewees expressed concern about the appointment of Board members to the Court of Judicial Discipline. Those concerns were that such appointments could create public misperceptions about the fairness of the system and increase the likelihood of recusals. The Discipline Committee does not believe that prior service on the Board should preclude service on the Court of Judicial Discipline. However, the concerns raised are valid and warrant further study.

99 ABA MODEL RULES FOR JUDICIAL DISCIPLINARY ENFORCEMENT R. 2(D). 100 Id.

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IV. CASELOAD MANAGEMENT, RESOURCES, AND FUNDING Recommendation 2: The Processes for Dismissals After Preliminary Inquiry Should be Streamlined Commentary In Pennsylvania, as in most states, approximately 90% of complaints against judges are dismissed outright or after minimal investigation.101 Consistent with other jurisdictions, the bulk of complaints allege legal error by the judge, bias, and abuse of discretion. Most complaints in Pennsylvania are made against judges from the Court of Common Pleas followed by complaints against Magisterial District Judges. In 2008, the Board opened 636 complaints. In 2009, it received and opened 681 complaints. These numbers exclude complaints against judges that did not fall within the Board’s jurisdiction and were screened out by the Chief Counsel’s Office. In 2008, the Board disposed of 621 matters, of which 579 were dismissed after preliminary inquiry (D.A.P.I). In 2009, the Board closed 698 files, of which 628 were D.A.P.I.s. According to the five-year summary set forth in the Board’s 2009 Annual Report, of all complaints resolved by the Board from 2005 through 2009, 2,719 were resolved at the D.A.P.I. level, followed by 135 after full investigation, 76 letters of caution, 54 letters of counsel, and 17 matters that proceeded with formal charges. In 2008, two matters were filed with the Court of Judicial Discipline; in 2009 three cases were brought before the Court of Judicial Discipline. The consultation team was advised that when a matter proceeds to trial before the Court of Judicial Discipline, the amount of time that the Chief Counsel’s Office is able to devote to conducting its other duties drops significantly.102 At the time of the consultation team’s visit, the Chief Counsel was spending approximately 2/3 of his time handling a caseload and the remainder of his time on administrative matters. His caseload duties include screening complaints, assigning them to counsel, investigating them, and prosecuting cases before the Court of Judicial Discipline. Additional data provided to the consultation team indicates that on average, it takes approximately 180 days from the filing of a complaint until a D.A.P.I., and 12 -18 months from the filing of a complaint to a dismissal after formal investigation. In 2009, the Board

101 The 2009 Annual Report of the Judicial Conduct Board states that 87% of the complaints it receives are resolved in this manner. 102 In Interbranch Commission on Juvenile Justice, 988 A. 2d 1269 (Pa. 2010), the Supreme Court of Pennsylvania referred to testimony before the Interbranch Commission by Board member Edwin Klett estimating that “..it takes approximately 30 to 40 percent of the JCB’s manpower when it takes a case to the Court of Judicial Discipline.”

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referred 20 matters for full investigation. The Board dismissed 8 matters after full investigation in 2009. Data for 2004 through 2009 indicate that, with the exception of 2005, the number of complaints filed with the Board continues to rise. For Fiscal Years 2008 – 2009, 2009 – 2010, and 2010 – 2011, the Board’s budget has remained stagnant.103

Year # of Complaints Received 2004 556

2005 508 2006 597 2007 620 2008 636 2009 681 At the time this report was drafted the backlog consisted of 386 matters. The bulk of unresolved matters on the Board’s docket are classified as D.A.P.I. matters. As noted above in the description of the system, the Board has developed very detailed Rules of Procedure and Internal Operating Procedures applicable to the handling of complaints. At the conclusion of a preliminary inquiry, counsel assigned to the file is required to prepare a written summary of the matter along with recommendations for Board action. The summaries must include the names of the complainant and judge, relevant background information about the judge including prior discipline, an accurate recitation of the allegations in the complaint, the scope and results of the preliminary inquiry, Judicial Code provisions implicated and relevant legal and factual analysis, and the recommended disposition including counsel’s rationale and any mitigating factors (as noted above, the Internal Operating Procedures do not specify that aggravating factors should be included in the memo provided to the Board).104 The Board’s non-exclusive factors to be considered in evaluating cases do include items that would typically be considered aggravating factors, including whether the judge acted in bad faith, had dishonest motives or committed a criminal act.105 At its meetings the Board receives from Chief Counsel a D.A.P.I. packet and a second packet consisting of all other matters on the Board’s agenda.106 The team was advised that, due to the nature of the memos from Chief Counsel’s Office, Board member review of D.A.P.I. packets takes significant time. As noted above, the bulk of complaints filed with the Board are dismissed at this stage. All interviewees that were asked confirmed that the Board infrequently disagrees with Counsel’s recommendation to dismiss matters after the preliminary inquiry.

103 See page 11 above. 104 Supra notes 43 and 44. 105 See, http://judicialconductboardofpa.org/ . 106 Supra note 44.

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The Discipline Committee recommends that the Board reconsider the necessity of requiring Chief Counsel’s Office to expend the significant time it takes to prepare these detailed reports for D.A.P.I. matters. The proper balance between discretion granted to the Chief Counsel’s Office versus the Board’s oversight responsibilities is an important factor affecting efficient caseload processing. However, the high percentage of time that the Board agrees with Counsel’s recommendations in D.A.P.I cases indicates that Chief Counsel and his staff are properly evaluating these complaints. The Board’s Rules of Procedure already provide that the Board can request that the Chief Counsel’s Office conduct additional investigation or provide additional information if necessary. In those limited instances where the Board disagrees with Counsel’s recommendation, it can do so. Additionally, Board member time spent reading lengthy reports would be saved by streamlining this process. The team was advised that the Board reviews the D.A.P.I. files every other month, and that the Board has initiated a new procedure of reviewing them by teleconference. This should help expedite the handling of those matters. The Discipline Committee recommends that this practice continue. In Recommendation 1 above, the Committee also suggests amending the rules to allow the Board to act in two investigative panels comprised of five members each (the Chair and Vice Chair would not serve on these panels) for purposes of handling D.A.P.I. cases. Having each panel review and act upon its own docket of D.A.P.I files would allow the Board to expedite consideration of these matters.

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Recommendation 3: The Board Should be Adequately Resourced Commentary The Discipline Committee is aware of the trepidation with which requests for additional resources are often met, especially in the current economy and given the current underfunding of state judiciaries. However, in order to do its work effectively, the Board and Chief Counsel’s Office must be adequately resourced. By “resourced” the Committee is not just referring to funding, technology, and staffing. As part of its analysis as to whether the Board and Chief Counsel’s Office are adequately resourced, the Committee looked at how existing resources are allocated. Before specific requests for additional funding, technology, and staffing are made, the agency must ensure optimal allocation of existing staff and volunteer time.107 This Recommendation will first suggest additional ways that the Board can better balance allocation of available resources, and will then focus on technology, staffing, and funding.

A. Allocation of Staff and Volunteer Time Only a minimal number of cases proceed to trial before the Court of Judicial Discipline. As noted at page 22 above, when cases go to trial before the Court of Judicial Discipline a significant percentage of staff resources for the Chief Counsel’s Office are devoted to those proceedings. At a minimum, the focus of Counsel and the investigator assigned to the case are directed to that matter, as is that of the Office’s paralegal. The consultation team was unable to pinpoint the exact reason why these trials consistently resulted in such a significant redirection of staff resources for their duration. The team did not find the processes for trying matters before the Court of Judicial Discipline to be burdened by too much procedure. The consultation team, which included a judge and two members who have litigated disciplinary cases, also understands that case complexity levels vary as do the levels at which respondents contest the charges. However, those factors should not affect, to the extent described, how the Office operates. The Discipline Committee believes that decreasing the need for such focus of staff time during hearing matters can be addressed in part through increased and skilled use of technology, as well as through increased resources and staffing. Before implementing staff increases, the Committee strongly urges the Board and Chief Counsel to evaluate how matters proceed before the Court of Judicial Discipline to pinpoint areas where staff resources can be more efficiently allocated in advance of trial (as well as during trials) so as not to disrupt the handling of other cases. For example, are optimal efforts by both parties to reach stipulations of fact, testimony, and authenticity of documents being made ahead of time? To what extent

107 As noted in Recommendation 2 above, the Committee believes that the Board should streamline D.A.P.I. procedures.

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can the need for discovery at the trial level be limited by ensuring that as much necessary evidence as possible is obtained during the investigative process? The Discipline Committee also suggests that the Board consider the manner in which its Legal Review Committee exercises its responsibilities. Internal Operating Procedure 205.2 provides that Chief Counsel must submit to the Legal Review Committee in advance of filing “all complaints, motions, briefs, discovery requests and responses, deposition notices and the like” for review and comment. While the Discipline Committee commends the Board for taking its responsibilities seriously, requiring the Chief Counsel’s Office to submit for Board review and comment prior to filing all of the pleadings described above seems an unwise use of Board member resources. The Committee cautions the Board not to unduly impinge upon the necessary prosecutorial discretion that must reside with disciplinary counsel. On the other hand, Chief Counsel’s Office must be responsible for exercising its discretion properly, for ensuring that information provided to the Board is reliable, and for promptly resolving Board concerns in a manner that allows the Board to have requisite confidence and comfort with the day-to-day operations of the agency. This will allow the volunteers in the system to better spend their time, including on resolving D.A.P.I.s, and determining whether probable cause exists to warrant filing charges with the Court of Judicial Discipline. The consultation team also observed that in some instances the Board’s solution to certain actions or inactions within the system resulted in a less than efficient use of staff resources. One example of this relates to the manner in which Board minutes were taken. At the time of the consultation team’s visit the Board’s meetings were recorded. The Board then required administrative staff from the Chief Counsel’s Office to prepare “verbatim” minutes of its meetings. This requirement has since been discontinued but evidences the need for care in considering efficient usage of Board personnel.108 Pursuant to Internal Operating Procedure 9.02 the Board requires all counsel and investigators to keep detailed daily time records that reflect, by case number or task, the work performed by each. While the Committee agrees that, from a macro-management perspective, knowing how staff spends its time is important, the level of detail required by the Board requires staff to spend more time than necessary on this task. Further, the Discipline Committee believes that the Chief Counsel should be responsible for this type of supervision of staff members.109 Problems can, and should, be addressed promptly and also should be dealt with during the annual staff performance evaluations conducted by the Chief Counsel pursuant to Appendix B of the Board’s Internal Operating Procedures. If the Board has continuing concerns about allocation of staff time it can address them with the Chief Counsel at Board meetings and through its evaluation process for that position.

108 See also Recommendation 7 relating to the handling of anonymous complaints. 109 See, e.g., ABA MODEL RULES FOR JUDICIAL DISCIPLINARY ENFORCEMENT R. 4(B)(5).

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B. The Board and Chief Counsel’s Office Must be Provided With Enhanced Technology Resources

Adequate technology resources are necessary for the Board to operate with optimal transparency, accessibility, and efficiency. The Office of Chief Counsel and the Board need improved technology resources, including but not limited to, a sophisticated case management system. The investigators of the Chief Counsel’s Office should have access to the most up-to-date investigative software in addition to information regarding the caseloads of Pennsylvania judges from the Administrative Office of Pennsylvania Courts. The team received conflicting information about the nature and extent of its access to the judiciary’s data bases. All staff should be trained in how to use the new caseload management system and other available technology. Increased technological proficiency will increase productivity. The Discipline Committee was pleased to learn that the Administrative Office of Pennsylvania Courts provides tech support to the Board. As described above, the caseload is currently tracked via the Intake and Status Log. The legal secretary enters the case information into an Access Database comprised of 17 relational tables. Case information is downloaded from the database into an Excel spreadsheet for the “Intake/Status Log.” The Board requires Chief Counsel and staff to present this document to it at monthly meetings. Chief Counsel’s office must update the Access tables regularly as well as the Log. Report derivation is difficult and subject to limitations. A proper computerized caseload management system will maintain information about the identity of respondent judges and complainants, and the number of investigations they are associated with over time, the nature of complaints against Pennsylvania judges, the dates that correspondence is received and sent, and the dates and nature of other actions taken. It should have a diary and tickler system, and should allow the Board and Chief Counsel’s Office to derive necessary and varied statistical reports. The Board and Chief Counsel’s Office should also use the new caseload management system as a tool by which performance of the agency’s employees can be evaluated. All staff should have access to the caseload management system. If necessary, the ability to input information into the system can be limited, but the Committee urges the Board to carefully consider such a policy. It may be more efficient to have all staff be able to enter information into the system. The Board should inquire of other judicial conduct and lawyer discipline agencies about their caseload management software and collect sufficient information to allow it to decide what type of system would best suit its needs. The Discipline Committee suggests that the Board start by contacting the South Carolina judicial disciplinary agency. Its case management software allows disciplinary counsel to track all aspects of pending matters, retrieve related documents, diary matters for deadlines and maintain templates for letters, pleadings, and other documents. Having a system with templates for correspondence and pleadings will reduce the amount of staff time that it takes to prepare these documents.

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The Board should have a password protected area on a web-accessible site so that it can have the ability to conduct a portion of its business electronically with the requisite confidentiality. This resource should allow the Chief Counsel’s Office to send files and memoranda electronically to Board members. This will reduce the significant amount of staff time currently spent copying and printing materials for the Board meetings. The training materials referenced in Recommendation 5 can be accessible to Board members via this system. A system like this is currently in use by the Louisiana lawyer disciplinary agency and the Committee recommends that contact with the Administrator of the Disciplinary Board of the Supreme Court of Louisiana be made.

C. The Board and Supreme Court of Pennsylvania Should Explore Additional Ways to Fund the System

Judges and lawyers have a vested interest in ensuring that the public continues to have confidence in the judiciary. One of the most important ways to maintain such confidence is to ensure adequate funding of the agency constitutionally designated to enforce the Code of Judicial Conduct by investigating and prosecuting allegations of judicial misconduct and disciplining judges who are found to violate the Code.110 The manner in which judicial conduct organizations are funded varies, but typically funding is granted by the legislature as part of the overall budget of the judicial branch or from the state’s general operating budget. The ABA Model Rules for Judicial Disciplinary Enforcement recommend that the judicial conduct commission prepare its own budget, separate from that of any other agency or branch of government for submission to the legislature.111 Separation of the budget for this agency from the judicial branch helps ensure its operational and fiscal independence. As noted above, the Board is responsible for developing and administering its budget. The Supreme Court includes the Board’s request for funds in the Court’s submission of the judiciary’s budget to the legislature.112 The Board’s budget funds its operations, equipment, salaries and benefits for staff. The Board does not pay rent for its office space. The Board’s budget has remained stagnant for the past three years at $1,182,000. The Committee understands that it will seek an increase for the next Fiscal Year of $1,896,000. The Discipline Committee is very cognizant of the fiscal challenges facing the judiciary generally and the Board specifically. These challenges are not unique to Pennsylvania. So that the system can conduct the necessary investigation and prosecution of judicial discipline matters, the Discipline Committee urges the Board to work with the Supreme Court of Pennsylvania and the Administrative Office of Pennsylvania Courts to consider whether there

110 See, ABA MODEL RULES FOR JUDICIAL DISCIPLINARY ENFORCEMENT COMMENT to R. 4. 111 ABA MODEL RULES FOR JUDICIAL DISCIPLINARY ENFORCEMENT COMMENT to R. 2(F). 112 Supra note 25.

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exist viable alternative and additional sources of funding for the judicial discipline system. For example, while the Committee understands the need for the investigators to have automobiles so that they can perform their duties, the Board may wish to reconsider whether the Chief Disciplinary Counsel requires an automobile to adequately perform that position’s duties. The consultation team was advised that judges found not to have committed the misconduct with which they are charged can receive reimbursement of their legal defense fees. The team was told that the Administrative Office of Pennsylvania Courts refunds those monies, but the source of those funds was not clear. The Discipline Committee suggests that this policy be reconsidered. The Committee also recommends that applicable rules be amended to provide that judges who are disciplined in any way, including Letters of Counsel (private reprimands by the Board), be required to reimburse the system for the costs of the proceedings.113 The Board, Supreme Court, and Administrative Office of Pennsylvania Courts also should consider how other states have creatively addressed similar budget crises for their judicial conduct organizations. For example, while Colorado’s Constitution provides for funding of the judicial discipline system, the Supreme Court of Colorado has also ordered that the state’s lawyers contribute to the funding of the system through their required annual licensing assessments. Additionally, the Governor of Oklahoma recently signed into law legislation that assesses $2 on the filing of civil cases in a district court to be appropriated to the Council on Judicial Complaints through establishment of a Council on Judicial Complaints Revolving Fund.114 There is a bill pending in the Georgia legislature that would amend existing state law to add an additional 1% qualifying fee for judicial candidates to assist in funding its Judicial Qualifications Commission.115

D. When Resources Become Available, the Board Should Hire Additional Staff The Discipline Committee believes, and many interviewees agreed, that even after taking steps to increase efficiencies of the existing staff and volunteers, Chief Counsel’s Office needs additional lawyers, investigators and administrative staff. At the time of the team’s visit there existed one counsel vacancy that the team understands was soon to be filled. The team also understood that the Board had recommended taking the pre-existing salary for that position and halving it so that two lawyers could be hired. While the Discipline Committee commends the Board for seeking to optimize its existing and scarce resources, salaries for all staff should be competitive so as to ensure that the agency can hire and retain qualified professionals. The Committee believes that specific recommendations for the number of additional positions should be made after a “needs based” assessment. As part of this assessment, Chief Counsel

113 See, ABA MODEL RULES FOR JUDICIAL DISCIPLINARY ENFORCEMENT R. 17(D)(2)(a) and 25(D)(3). 114 See, http://newlsb.lsb.state.ok.us/BillInfo.aspx?Bill=HB1414&Session=1100. 115 See, http://www.legis.ga.gov/Legislation/en-US/display.aspx?Legislation=32791.

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and the Board should conduct a caseload analysis for matters pending at all levels in the system that includes consideration of case complexity. This will help determine whether additional efficiencies might be implemented that would mitigate the need for additional staff. The team was also concerned about the Chief Counsel devoting 2/3 of his time to handling a caseload and 1/3 on his administrative duties for the Board. When resources become available the Board should consider appointing Board Counsel whose duties would be separate from the Chief Counsel and his staff.116 The Office of the Chief Counsel would continue receiving and screening complaints, conducting investigations, presenting the results of those investigations to the Board for action, and presenting formal charges before the Court of Judicial Discipline. The Chief Counsel should remain responsible for deriving and providing to the Board caseload statistical reports for Board consideration. Board Counsel can compile meeting materials, prepare and disseminate Board agendas, prepare minutes of Board meetings, draft correspondence and reports, conduct legal research, and prepare publications and other materials for Board review and approval. Board Counsel need not be full-time.

116 ABA MODEL RULES FOR JUDICIAL DISCIPLINARY ENFORCEMENT R. 5.

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V. PUBLIC OUTREACH AND TRAINING Recommendation 4: The Judicial Conduct Board Must Increase Outreach and Accessibility to the Public, the Judiciary and the Bar Commentary For a judicial discipline system to be credible, it must protect the public from improper conduct and behavior of judges, preserve the integrity of the judiciary and the judicial process, and enhance public trust and confidence in the judicial system. Those charged with the system’s operation also should work to create greater awareness of proper judicial behavior and to educate judges and the bar about their respective roles in maintaining the integrity of the judiciary. In order to accomplish these goals, the judicial discipline agency must, at a minimum, be easy to locate and accessible physically and electronically. Pennsylvania is a large state. Its Judicial Conduct Board and Chief Counsel’s Office are located in the modern Pennsylvania Judicial Center in Harrisburg. Two of the Board’s investigators operate from offices in Philadelphia and Pittsburgh, but these offices are not locations where the public can come to seek information about the system or file a complaint. The investigators refer complainants to the Harrisburg office or provide them with complaint forms and information electronically or by U.S. mail. The Board does have a website where someone interested in filing a complaint about a judge can review the Board’s pamphlet about the system (the Board also maintains the pamphlet in print form), review responses to frequently asked questions about the complaint process, download a complaint form to complete and send via U.S. postal service to the Board for consideration.117 The Board’s website also has a “public relations” page advising that the Chief Counsel and his staff are experienced in the area of judicial ethics and are available for speaking engagements.118 That page provides contact information for those interested in scheduling a presentation. The consultation team was advised that speaking engagements to the bar, judiciary, and public by members of the Board and Chief Counsel’s office have decreased in recent years. Unfortunately, information provided to the consultation team indicates that, despite its website and offer of availability for speaking engagements about the system, the Board and Chief Counsel’s Office are not optimally accessible to the public. A number of those interviewed would not have known about the Board or where to contact it had they not contacted the Pennsylvania Bar Association.

117 See, http://judicialconductboardofpa.org/ , and supra note 30. 118 See, http://judicialconductboardofpa.org/about/public-relations/ .

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In order to achieve optimal accessibility the Board and Chief Counsel’s Office need to be far more proactive in their outreach to the public and the profession. This would be true regardless of the Luzerne County matter, but that incident evidences the importance of the Board’s doing so. The Discipline Committee urges that increased outreach by the Board and Chief Counsel’s Office include programming that focuses on the duties of lawyers and judges to report misconduct. A number of interviewees advised the consultation team that there exists a lack of clarity within the bench and bar about these issues. Further, the events in Luzerne County evidence a significant need for heightened attention to these obligations. The Discipline Committee suggests that this would be an excellent opportunity for the Board and Chief Counsel’s Office to work with the Disciplinary Board of the Supreme Court of Pennsylvania (the lawyer discipline agency) to develop continuing legal education programs on this subject as well as materials to be posted to the Board’s website.119 The Board and Chief Counsel’s Office should ensure that the print version of its pamphlet is current, and if necessary, print versions in other languages. The Board should ensure that adequate copies of these pamphlets are available throughout Pennsylvania at consumer organizations, courthouses, and public libraries. The Board and Chief Counsel’s Office should develop and implement a strategic short and long range outreach plan designed to seek invitations for speaking engagements with the bar, the judiciary, and the public, including civic organizations. While Chief Counsel’s Office is optimally positioned to make most presentations, the Board members should participate too, including nonlawyer members. Nonlawyer members of the Board are in the most credible position to explain the system’s consumer orientation. When developing and implementing the outreach plan, the Board and Chief Counsel’s Office should identify specific audiences statewide, as well as other entities and organizations with which to partner on presentations. The Board and Chief Counsel also should seek ways in which to reach these audiences electronically, including the offering of webinars. Judicial Conduct Board Internal Operating Procedure 2.13 currently states that any member of the Board, Chief Counsel or his staff must immediately notify the Board of proposed appearances at any hearings, seminars or professional meetings. Except for regularly scheduled appearances by Chief Counsel or staff at proceedings pending in the Court of Judicial Discipline, the Board is required to approve all appearances in advance. While the Discipline Committee agrees that the Board should generally be kept apprised about invitations for and the scheduling of speaking engagements, it recommends that the Board revise this Internal Operating Procedure. The Committee understands why such approval may be necessary for hearings, media appearances or testimony before another branch of government, and why, given budgetary constraints, approval to attend out-of-state professional meetings might require approval before accepting a speaking invitation. However, lawyers from the Chief Counsel’s Office in particular should not be required to

119 See, e.g., https://www.iardc.org/ethics_faq.html.

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obtain Board approval to speak about the system or judicial ethics at seminars or other educational events within the Commonwealth. The Board’s website emphasizes the judicial ethics expertise of Chief Counsel and his staff. They should be treated as professionals with regard to representing the Board at these events. The Committee recommends that the Board amend Internal Operating Procedure 2.13 accordingly.

With regard to the Board’s website, it has posted an electronic version of its 2009 Annual Report as well as its Internal Operating Procedures. Previous Annual Reports are not available for viewing, and the Board does not have separate electronic versions of the constitutional provisions governing it or its Rules of Procedure available on the website. The 2009 Annual Report sets forth a summary of the Letters of Counsel that the Board issued that year, but the website contains no digest of those Letters going back in time. Similarly, the Annual Report sets forth citations to Court of Judicial Discipline cases (without live links to the digest of those decisions located on the Court of Judicial Discipline website). There also is no separate digest of the Court of Judicial Discipline opinions, with live hyperlinks, on the Board’s website. Those seeking that information must go to the section of the Board’s website entitled “resources” and click on the link to the Court of Judicial Discipline site.120 The Discipline Committee recommends that the Board enhance its website by creating a secure mechanism for complainants to file their complaints online. It also should add earlier versions of its Annual Reports, the constitutional provisions governing the system, its Rules of Procedures and updated Internal Operation Procedures. The Committee also recommends that the Board develop a searchable data base of related Pennsylvania Supreme Court opinions and orders, a listing with live links of Court of Judicial Discipline opinions, and the summaries of Letters of Counsel dating back to 1993. Proposals by the Board to amend its Rules of Procedure should continue to be posted and made available for comment. The website also should set forth on its public relations page descriptions of speaking events, CLE presentations and articles published by Chief Counsel’s Office or the Board. These enhancements will assist the Board and Chief Counsel’s Office in fulfilling their educational role for the profession and the public.

120 See, http://www.cjdpa.org/ .

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Recommendation 5: Formal Training of the Judicial Conduct Board Should Be Mandatory Commentary The Chief Counsel’s Office and the Judicial Conduct Board have developed the Judicial Conduct Board Handbook that sets forth all relevant rules and procedures, including the relevant portions of the Pennsylvania Constitution, the Board’s Procedural Rules and Internal Operating Procedures, the Court of Judicial Discipline’s Procedural Rules and Internal Operating Procedures and the conduct rules that apply to Board and Court of Judicial Discipline members. The Code of Judicial Conduct and a Digest of Court of Judicial Discipline cases are included, along with complaint forms, the nonexclusive Standards for Evaluating Judicial Discipline Cases, a glossary of terms, and Supreme Court Orders relating to financial disclosure requirements. Other jurisdictions do not have such a comprehensive resource for their board members. That the Judicial Conduct Board and Chief Counsel’s Office have prepared the Handbook is laudable. It is well organized. It was not clear, however, whether the Handbook is made available to Board members electronically. The consultation team was advised that training sessions for Board members have been developed and presented, but that attendance is not mandatory prior to Board members commencing their duties. Those Board members who were unable to attend the training session receive “on the job training.” The Discipline Committee recommends that the Board undertake efforts to enhance the training offered to its members. The Committee recommends that the Handbook and other training materials be made available to Board members electronically and that they be regularly updated in the same manner. The Board should update the Handbook to include relevant Supreme Court of Pennsylvania opinions interpreting constitutional provisions and Board and Court of Judicial Discipline procedural rules, applicable rules of evidence, applicable rules of civil procedure, and the Report of the Interbranch Commission on Juvenile Justice. Relevant case law and articles regarding the duties of lawyers and judges to report judicial misconduct should also be included. The Board should consider adding additional materials relevant to impairment and mental health. As is clear from the inclusion of specific provisions regarding judges who are impaired or disabled in the Pennsylvania Constitution, as well as the Board and Court of Judicial Discipline procedural rules, these issues are raised with increasing frequency in judicial disciplinary cases. Respondents’ counsel can also provide valuable insight to Board members and the Board should consider including them during training sessions. Other materials that the Board should consider obtaining to supplement its training regimen include those relating to standards for imposing sanctions in judicial discipline cases. The Discipline Committee recommends the Board and Court of Judicial Discipline members be

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provided access to the American Judicature Society’s publication entitled, “A Study of State Judicial Discipline Sanctions.”121 Training helps to ensure consistency in, and the expeditious resolution of, disciplinary matters. Training should be mandatory for all new appointees, and should occur at least bi-annually for all others. Training should stress the need for the Board members to fulfill their duties in a timely manner so as to enhance the public’s perception that the system is operating efficiently. The consultation team also recommends that, when resources permit, the Chief Counsel and his staff should be permitted to attend the National College on Judicial Conduct and Ethics sponsored by the American Judicature Society’s Center for Judicial Ethics. The National College provides a forum for judicial conduct commission members and staff, judges, and judicial educators to learn about current issues in judicial ethics and discipline.122 Attendees have the opportunity to collect information and discuss current issues and problems in this area with leading experts, scholars, and practitioners from across the country.

121 http://www.ajs.org/cart/thumbnail.asp?subject_id=2. 122 http://www.ajs.org/ethics/college.asp.

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VI. PROCEDURAL RULES: JUDICIAL CONDUCT BOARD Recommendation 6: The Board Should Eliminate the Requirement that Complaints be Verified Commentary As noted above, the Pennsylvania Constitution states that the Board “shall receive and investigate complaints regarding judicial conduct filed by individuals or initiated by the Board.”123 The Board Procedural Rules require that complainants submit complaints in writing and they must sign and verify them under penalty of perjury.124 The Board’s website warns against filing frivolous complaints, stating that, “...anyone who knowingly files a false complaint may face criminal charges.”125 Complainants should not be required to submit their complaints in writing and they should not be required to sign their complaints under penalty of perjury. The Pennsylvania Constitution does not require written complaints, nor does it require that complainants verify their allegations. The Discipline Committee strongly recommends that the Board amend its Rules of Procedure to eliminate these requirements, amend its complaint forms, and revise its website. The ABA Model Rules for Judicial Disciplinary Enforcement define a complaint as “information in any form from any source received by the commission that alleges or from which a reasonable inference can be drawn that a judge committed misconduct or is incapacitated. If there is no written complaint from another person, disciplinary counsel's written statement of the allegations constitutes the complaint.”126 The complaint can be received by telephone.127 The Board accepts anonymous complaints (it should continue to do so), even though those complaints, by their very nature, would not meet the verification requirement. Pursuant to Internal Operating Procedure 4.03, anonymous complaints are not required to be in writing.128 Further, there are a number of reasons that complainants cannot submit complaints in writing. These reasons range from language barriers to physical disabilities that prohibit individuals from writing or typing. The Discipline Committee cannot conceive that the Board would refuse to consider complaints from such individuals.

123 Supra note 29. 124 Supra note 30. 125 Supra note 31. 126 ABA MODEL RULES FOR JUDICIAL DISCIPLINARY ENFORCEMENT R. 17 (A) and Terminology Section. 127 Id. 128 Internal Operating Procedure 4.03 states that “Anonymous complaints in whatever form shall be entered into the Log....” See also, Recommendation 4 below explaining why the Board should consider revising Internal Operating Procedure 4.03.

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Requiring written and verified complaints chills complainants’ willingness to come forward with information about judicial misconduct. A majority of states do not require complaints to be verified.129 It is vital to the integrity of the disciplinary process that complainants are allowed to freely file their grievances. The public must have confidence that the Board, a constitutional entity that includes the Chief Counsel’s Office, will consider all information about unethical judges and protect those who provide that information. Complainants should not be subject to the threat of prosecution associated with verification under oath for the filing of a complaint with the disciplinary agency. The judicial disciplinary process in Pennsylvania provides for confidentiality until the filing of formal charges with the Court of Judicial Discipline. This provides a significant and sufficient layer of protection for judges against false and malicious complaints becoming public.

129 Judith Rosenbaum, Practices and Procedures of State Judicial Conduct Organizations, American Judicatory Society (1990).

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Recommendation 7: The Board Should Reconsider Special Handling of Anonymous Complaints Commentary Generally, upon receipt of a complaint, the executive secretary date stamps it as received, attaches available information about the judge against whom the complaint has been made, and sends it to the Chief Counsel for screening. If the complaint does not fall under the Board’s jurisdiction, the Chief Counsel may determine to proceed no further without having to seek Board approval. If the complaint alleges facts, which if true, would constitute grounds for disciplining a judge, the Chief Counsel directs that a file be opened and ranks the complaint in terms of seriousness. The complaint is then assigned to counsel and an investigator to conduct the preliminary investigation, and the file is entered into the “intake and status log” that the Board requires Chief Counsel to maintain. Chief Counsel’s office must update the log regularly and it must be provided to the Board as part of the Board’s business agenda at each meeting. The log is maintained in electronic format, using an Excel spreadsheet. Pursuant to Internal Operating Procedure 4.03, the Board requires Chief Counsel’s Office to handle anonymous complaints differently. The consultation team understands that in the past anonymous complaints were handled in the same manner as those where the complainant was identified. Now, pursuant to Procedure 4.03, Chief Counsel’s Office must enter all anonymous complaints into the log and provide them to the Board for review and approval prior to opening a file or beginning a preliminary investigation. As noted above, this appears to be the case even if, on its face, the anonymous complaint falls outside the Board’s jurisdiction, and could normally be disposed of by the Chief Counsel. The Board also requires the Chief Counsel to record the identity of any anonymous complainant should that individual’s name become known from other sources. The consultation team was advised that the Board adopted this Internal Operating Procedure in reaction to the Luzerne County matter. The consultation team examined the anonymous complaint and the circumstances surrounding its handling. That the handling of that complaint was problematic for a number of reasons is not news. As noted above, the ABA Standing Committee on Professional Discipline was retained to conduct a holistic study of the Pennsylvania judicial discipline system. Part of that review necessarily involved and was informed by the Luzerne County matter and the system’s response to it. The Committee’s task was not to investigate the handling of the anonymous complaint at issue or to assign responsibility for any action or inaction regarding it. However, the extent to which the Board’s response to Luzerne County and the Interbranch Commission affects the efficient, effective, and fair operation of the system as a whole is within the purview of the Committee’s review. The Committee was not made aware of similar problems regarding the handling of other anonymous complaints.

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With regard to the Luzerne County matters, the Interbranch Commission, media, and the public questioned the manner in which the Board and Chief Counsel’s Office fulfilled their duties as set forth in the Constitution and Rules of Procedure. In particular, questions were raised regarding the extent of discretion vested in the Chief Counsel’s Office as well as regarding the Board’s management of that Office. That the Board felt compelled to evaluate procedures for handling anonymous complaints in reaction to the events in Luzerne County is understandable; its overarching evaluation of the balance between discretion granted to the Chief Counsel’s Office versus the Board’s oversight role is justified and commendable. Introspection and re-evaluation of procedures is necessary in order for any professional regulatory system to function effectively and in a manner that ensures accountability for the prompt and proper handling of complaints. It should occur regularly, not just in response to events that direct scrutiny upon the system. In saying this, it must be noted that well before it became aware of the events in Luzerne County the Board did conduct internal reviews of its procedures and make adjustments. That the Board members and Chief Counsel’s Office take very seriously their duties and charge also is not in question. Achieving the proper balance between managerial oversight and the exercise of investigative/prosecutorial discretion by disciplinary counsel is dependent upon a number of factors. Pennsylvania is not unique in this regard. The Discipline Committee believes that the Board’s adoption of new procedures for the handling of anonymous complaints was well-intentioned and intended as one way to return balance to the system. The Committee is not convinced, however, that this was the best way in which to do so, and suggests that the Board reconsider the necessity of Internal Operating Procedure 4.03.130 The Discipline Committee believes that there is no reason to have different standards applicable to complaints where the complainant is identified versus anonymous. Most important, as noted in Recommendation 6 above, the Discipline Committee recommends that the requirement of written complaints be eliminated altogether. The Board’s adoption of Internal Operating Procedure 4.03 created an inconsistency. While all other complaints must be in writing and verified, Internal Operating Procedure 4.03 appears to permit anonymous complaints to be submitted in any form. This arguably more liberal procedure for filing a complaint could have the unintended consequence of encouraging anonymous complaints over those where the complainant is identified. The anonymous complaint about events in Luzerne County was submitted in writing. As a result, the justification for requiring that all other complaints be submitted in writing while anonymous complaints can take “whatever form” does not address the issues that occurred with the anonymous complaint that caused the system so much criticism. Pursuant to current Board Rules of Procedure, Chief Counsel’s Office may screen complaints to determine whether they fall under the Board’s jurisdiction, and if they do not, Chief

130 Other recommendations in this Report address balance between oversight and investigative/prosecutorial discretion and how it impacts the efficient handling of the caseload.

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Counsel can dismiss them without Board involvement. The anonymous complaint that gave rise to Internal Operating Procedure 4.03 was not dismissed by Chief Counsel’s Office after screening. Chief Counsel recognized that the matters that were the subject of that complaint fell within the Board’s jurisdiction and opened a file. In this regard there seems to be no question regarding the proper exercise of discretion by Chief Counsel’s Office and no need to add an additional layer of process by requiring the Board to review and approve all anonymous complaints in advance of opening a file or commencing a preliminary investigation. Complaints must be entered into the intake and status log. Chief Counsel’s Office must update the log on an ongoing basis. The log is provided to the Board at every meeting so that it can monitor the progress of all cases. The Discipline Committee believes that this is the most efficient and effective way for the Board to monitor complaints in the system. As discussed in Recommendation 3 above, the procurement and use of appropriate caseload management software will allow the Board to have “real time” access to all information necessary to fulfill its oversight responsibilities while allowing Chief Counsel’s Office to exercise appropriate discretion. If the Board has specific questions about matters it can ask Chief Counsel and his staff about them and, where necessary, provide additional direction or take necessary action.

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Recommendation 8: Complainants Should be Apprised of the Status of Their Complaints, Not Just Their Final Disposition Commentary Section 18 (a)(8) of Article V. of the Pennsylvania Constitution provides that the Board may, upon dismissing a complaint for lack of probable cause, inform the complainant of the dismissal and the reasons for that action. The Board’s Rule of Procedure 30 (A)(1) contains a similar provision. The consultation team was advised that, based upon these provisions and those relating to confidentiality of investigations, the Board and Chief Counsel’s Office do not provide complainants with information about the status of their complaints during the pendency of an investigation.131 The Board’s website contains the following statement about the status of complaints: “The Board and its staff will not answer any questions about the existence or status of a complaint.”132 Complainants are advised of the dismissal and the Discipline Committee urges the Board to continue doing so.133 Notification to complainants that their complaint has been dismissed after a preliminary or full investigation should include a brief summary of the facts and the reasons why the complaint was dismissed.134 Doing so is crucial to enhancing public trust and confidence in the system. The Committee also strongly recommends that the Board and Chief Counsel’s Office provide to complainants seeking one an explanation of the status of their complaints.135 The purpose of keeping confidential from the public investigations into allegations of judicial misconduct is to protect the reputation of the judge from unfounded charges as well as to protect witnesses from possible retaliation during the course of the investigation.136 It is not to keep information about the status of the matter from the individual who filed the complaint, thereby seeking the Board’s assistance. The Committee does not read the Pennsylvania Constitution as prohibiting the Board from providing complainants with a status report including an explanation of where their complaint is in the process, how the investigation is proceeding, and when the complaint may reach a Board decision-point as to whether to proceed to a full investigation or dismiss the matter. Further, denying complainants a status report during the pendency of the investigation based upon the confidentiality provisions of the Pennsylvania Constitution makes no sense given that when a matter is dismissed the Board may provide a

131 Supra note 57. See also, J.C.B.R.P., Rules 17 and 18; and Internal Operating Procedure 5.01. 132 See, http://judicialconductboardofpa.org/about/privacy-and-confidentiality/ . 133 Internal Operating Procedure 6.01. See also, ABA MODEL RULES FOR JUDICIAL DISCIPLINARY ENFORCEMENT R. 16. 134 ABA MODEL RULES FOR JUDICIAL DISCIPLINARY ENFORCEMENT R. 16. 135 Id. and ABA MODEL RULES FOR JUDICIAL DISCIPLINARY ENFORCEMENT R. 4 (B)(1). 136 ABA MODEL RULES FOR JUDICIAL DISCIPLINARY ENFORCEMENT R. 11.

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complainant with all of this information plus, if the Board decides, a copy of information or evidence obtained during the course of the investigation.137 Another reason suggested in favor of not providing complainants who telephone the office with the status of the investigation is that Chief Counsel’s Office cannot immediately verify that it is, in fact, the complainant calling for the update. The Discipline Committee does not believe this is a sufficient basis upon which to deny to complainants a status report. The complaint form submitted to Chief Counsel’s Office sets forth the complainant’s contact information. If the Chief Counsel’s Office is concerned that a caller may not be the actual complainant, the Office can easily address those concerns. The secretary can take a message indicating who called and someone can return that call to the telephone number provided on the complaint form.

137 Supra note 56.

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Recommendation 9: The Board Should Amend Its Procedural Rules and Eliminate the Four Year Statute of Limitations Commentary Board of Judicial Conduct Rule of Procedure 15 states that:

Except where the Board determines otherwise for good cause, the Board shall not consider complaints arising from acts or omissions occurring more than four years prior to the date of the complaint, provided however, that when the last episode of an alleged pattern of recurring judicial misconduct arises within the four-year period, the Board may consider all prior acts or omissions related to such an alleged pattern of conduct.

The Discipline Committee recommends that the Board amend its Rules of Procedure and eliminate this statute of limitations.138 The Pennsylvania Constitution does not provide for any statute of limitations for judicial disciplinary proceedings. Further, as noted above, the purpose of the judicial discipline system is to protect the public and the integrity of the judiciary. The conduct of a judge, no matter when it has occurred, is always relevant to the question of fitness for office. The time between the commission of the misconduct and the filing of the complaint may, however, be considered in determining whether discipline should be imposed, and if so, the relevance of the passage of time to the nature of the sanction. Eliminating the statute of limitations would not prevent the Court of Judicial Discipline from applying the doctrine of laches if the delay has resulted in unfair prejudice to the judge’s ability to procure witnesses and evidence. Judges should be permitted, in appropriate circumstances, to file motions to bar the proceedings on that basis.

138 ABA MODEL RULES FOR JUDICIAL DISCIPLINARY ENFORCEMENT R. 18 and Commentary.

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Recommendation 10: Confidentiality Requirements Should Be Revised Commentary The Pennsylvania Constitution provides that complaints filed with the Board, as well as statements, documents, testimony or other information acquired during the course of an investigation are not public.139 The judge who is the subject of the investigation may waive confidentiality.140 If, during the course of an investigation, the fact of that investigation becomes public from a source other than the Board, the Board may, if the accused judge directs, issue a public statement confirming the investigation, clarify procedural aspects of it, explain that the accused judge is presumed innocent and has the right to a fair trial or provide the judge’s response to the complaint.141 The Board’s Rules of Procedure and Internal Operating Procedures also address the confidentiality of judicial disciplinary proceedings before the Board. Rule 17 of the Board’s Rules of Procedure states that, other than set forth in Procedural Rule 18, all proceedings before the Board are confidential. Rule 18 permits the judge to waive confidentiality entirely or for a particular purpose.142 The waiver must be made in writing, and pursuant to that request the Board may make disclosures that it deems appropriate. The Rule sets forth identical provisions to those in the Constitution relating to the fact of an investigation becoming public. Board Rules of Procedure 18 (C) and (D) state that information relating to violations of criminal laws may be disclosed to law enforcement and information relating to violations of the rules of professional conduct can also be disclosed to the appropriate agency. Corollaries to these provisions are not in the Constitution. The Board’s Internal Operating Procedures (which are marked “confidential” but available on the Board’s website) also characterize the confidentiality provisions applicable to Board proceedings. At this point it is relevant to note that the “Introduction” to the Internal Operating Procedures states that:

Failure to adhere to a particular policy, practice procedure will not alter the rights afforded to any person involved in Board investigations or proceedings and shall not affect the validity of any investigation or other activity carried out by the Board or its staff.

139 PA. CONST. art. V, § 18(a)(8). 140 Id. 141 Id. 142 J.C.B.R.P., Rule 18(a)(1).

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Moreover, these IOPs do not constitute legal advice, do not have the force of law and do not confer any substantive or procedural rights upon any person or entity including the Board or its staff, complainants, respondent judicial officers or anyone else dealing directly or indirectly, formally or informally with the JCB. These IOPs are meant to describe the internal practices and procedures of the JCB. The Constitution of the Commonwealth of Pennsylvania....Judicial Conduct Board Rules of Procedure....and relevant statutory and decisional law remain authoritative controlling law (“the Authority”).

Internal Operating Procedure 5.01 states in relevant part that:

All complaints, processes, deliberations and records of the JCB shall be treated as strictly confidential, and shall not be divulged in any context or in any forum except when otherwise authorized by the Authority or in response to a court order....

This paragraph ends with a recitation of the relevant provisions from the Pennsylvania Constitution and other case law supporting the “broad privilege of confidentiality” exercised by the Board. Internal Operating Procedure 4.07 addresses referral of complaints to law enforcement agencies. It states:

Any complaint filed with the Board that alleges criminal activity by a respondent judicial officer shall be brought to the Board’s immediate attention but no later than thirty (30) days of receipt at the Board’s office. Chief Counsel shall request the Chair to call a special meeting to be conducted by tele-conference unless a regular meeting is scheduled to be held in close proximity, and then in that event the matter shall be placed immediately on the agenda of that meeting. The Board shall review the particulars of the complaint and may, by majority vote, refer the matter to the appropriate law enforcement agency. The Board also shall determine whether it will actively investigate any part of the complaint that addresses potential ethical violations that are severable from the alleged criminal conduct. In its consideration of whether or not to retain jurisdiction in whole or in part, the Board shall consider whether its investigation may be prejudicial to the process of a pending grand jury investigation or other law enforcement investigation. The Board also may consider whether a duplicative, potentially over-lapping investigation would represent the best use of its limited resources. In the case of a referral, the Board may continue to monitor the status of the external investigation to the extent practicable, and shall hold in abeyance its

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prosecutorial authority awaiting the outcome of the disposition by the law enforcement agency.

In In re Interbranch Commission on Juvenile Justice, the Pennsylvania Supreme Court addressed the confidentiality provisions of the Constitution and the Board’s Procedural Rules in order to determine whether the testimony by Board officials and the anonymous complaint in the Luzerne County matter and other documents had to be disclosed, under seal, to the Interbranch Commission.143 In its recitation of relevant facts, the Court referenced Board officials’ testimony before the Interbranch Commission that the Board made disclosures to law enforcement about Luzerne County pursuant to the Board’s Procedural Rules. The Court noted that the Board did so despite the “apparent absence of explicit constitutional authority” to do so.144 Due to the narrow questions before it in that case, the Court held that it need not “...address or resolve the overarching issue of the apparent tension between the Rule and the constitutional mandate, since there is no challenge to the JCB’s authority to promulgate its referral rule currently before this Court, nor is there any question presented as to whether that Rule is unconstitutional.”145 In the Discipline Committee’s experience, and as exemplified by the Luzerne County matter, there are instances when information comes into the possession of a judicial discipline commission that should be provided to law enforcement or other agencies to protect an individual, the public or the administration of justice.146 Chief Counsel and the Board should refer matters to the lawyer disciplinary agency and law enforcement when appropriate and in response to requests, and should be able to do so without notice to or the prerequisite waiver by the accused judge. The Board’s Procedural Rules already provide for such disclosures, but as noted above, this authority is not clear from the Constitution (absent a waiver of confidentiality by the respondent judge, which seems highly unlikely). As a result, the Discipline Committee recommends that, in order to provide necessary clarity on this issue and to avoid any further challenges to Board action, the confidentiality provisions applicable to judicial disciplinary proceedings in the Pennsylvania Constitution should be amended. Consideration also should be given as to whether a constitutional amendment is necessary to permit the Board, in appropriate circumstances, to defer investigations at the request of federal or state law enforcement agencies during the pendency of a criminal investigation. Internal Operating Procedure 4.07 addresses this issue, without reference to a request by law enforcement. There are a number of valid reasons for the Board to defer its investigation of such matters, just as there are a number of reasons for it not to do so. For example, as recognized in Internal Operating Procedure 4.07, there may be severable ethics issues that

143 Supra note 57. 144 Id. 145 Id. 146 ABA MODEL RULES FOR JUDICIAL DISCIPLINARY ENFORCEMENT R. 11 (B)(1)(a).

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would not result in the interference with law enforcement’s investigations. In those cases, the Board should proceed. In other instances if the Board does not defer, it risks jeopardizing law enforcement’s case and possibly the safety of other individuals. These factors must be balanced against continuing harm to the administration of justice. Other factors that must be considered in this regard are the Board’s resources. The Board’s resources are limited, and in appropriate instances it may be best to permit better resourced and staffed state and federal law enforcement agencies to conduct investigations and allow the Board access to the results of those investigations. This would require that the Board and these law enforcement agencies develop a protocol for communication and exchange of information to facilitate increased cooperation. The Board must, however, monitor the progress of such matters to ensure that it can, if need be, recommence proceedings. Upon indictment of a judge the Board should immediately seek the interim suspension of the judge by the Court of Judicial Discipline pursuant to Article 18 (d)(2) of the Pennsylvania Constitution. The Discipline Committee also recommends that consideration be given to amending Article 18(d)(2) to allow interim suspensions for judges charged with serious crimes or conduct that poses a substantial threat of harm to the public or the administration of justice.147 A serious crime includes a “felony or lesser crime that reflects adversely on the judges’ honesty, trustworthiness or fitness as a judge in other respects, or any crime a necessary element of which, as determined by the statutory or common law definition of the crime, involves interference with the administration of justice, false swearing, misrepresentation, fraud, deceit, bribery, extortion, misappropriation, theft or an attempt, conspiracy or solicitation of another to commit a ‘serious crime’.”148

147 ABA MODEL RULES FOR JUDICIAL DISCIPLINARY ENFORCEMENT R. 15. 148 Id. Similar consideration should be given to amending Article 18 (d)(1) to include convictions of a “serious crime” as the basis for disciplining a judge. Currently, such discipline is limited to felony convictions. Article 18(d)(3) refers to convictions for misbehavior in office. The Discipline Committee suggests that this term is vague and should be replaced with language similar to that recommended for the preceding constitutional provisions.

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Recommendation 11: The Requirement that Chief Counsel’s Office Verify Formal Charges Filed With the Court of Judicial Discipline Should be Eliminated Commentary Rule 302(B) of the Court of Judicial Discipline Rules of Procedure requires counsel for the Board to verify the complaint setting forth formal charges. The Discipline Committee recommends that this practice be eliminated. Requiring the lawyer responsible for prosecuting complaints before the Court of Judicial Discipline to verify the charges creates an unnecessary risk that the respondent judge, as a strategic matter, will seek to depose counsel during the course of discovery or call that lawyer as a witness. The Rules provide respondent judges with full and fair opportunities for discovery from witnesses with actual knowledge of the alleged misconduct and to documents gathered by the Board during the course of the investigation that led to the filing of formal charges.

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VII. SANCTIONS Recommendation 12: The Rules Should Provide for Discipline on Consent Commentary Rule 502 of the Rules of Procedure of the Court of Judicial Discipline set forth the procedures for stipulations of fact. Currently the Rule seems to limit the parties to stipulating only to facts, but not to a recommended sanction. The Discipline Committee recommends that procedures for discipline on consent be developed and adopted.149 Discipline on consent benefits all participants in the process. It allows for the prompt resolution of matters, conserves system resources and allows the judge to avoid a costly, public trial. As noted above, the amount of Chief Counsel’s resources that must be devoted to trials before the Court of Judicial Discipline is a concern. The Committee suggests that procedures for discipline on consent provide that, at any time following the filing of formal charges with the Court of Judicial Discipline, counsel prosecuting the charges and the respondent judge should be able to negotiate an agreed disposition of the matter and present the proposed agreement to that tribunal for its approval.150 The agreement should set forth sufficient facts, analysis, and citations to authority to enable the Court to make an informed decision. The agreement should be accompanied by an affidavit executed by the judge stating that he or she is entering into the agreement freely and voluntarily, that he or she consents to the recommended sanction, and that the facts set forth in the affidavit are true.151 The Court of Judicial Discipline should approve or reject the petition for discipline on consent. If the Court rejects the petition, the judge’s admission should be deemed withdrawn and cannot be used in the proceedings.152 If approved, the petition should be considered a final order of judicial discipline.

149 ABA MODEL RULES FOR JUDICIAL DISCIPLINARY ENFORCEMENT R. 23 150 Id. 151 Id. 152 Id.

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Recommendation 13: Judges Who Have Committed Serious Misconduct Should Not be Able to Resign in Lieu of Facing Formal Charges and Continue to Retain Full Retirement Benefits Commentary Article 16 (b) of the Pennsylvania Constitution states that, except as provided by law, judges or justices who, under Article 18 have been suspended, removed from office or barred from holding office, shall not receive payment of any salary, retirement benefit or other compensation. Neither the Pennsylvania Constitution nor the Board or Court of Judicial Discipline Procedural Rules appear to address whether a judge or justice who is under investigation for committing serious misconduct during their tenure on the bench can resign in lieu of facing formal charges and the imposition of discipline, retain full retirement benefits, and provide legal services to the public without being held accountable for misconduct committed while holding judicial office. The Committee recommends that the Board, the Supreme Court, the Office of the Administrator of Pennsylvania Courts, and others who are charged with handling judicial retirement issues consider how to close this gap in the discipline system. The inability of the Board or another appropriate entity to retain jurisdiction over a judge who resigns to avoid facing formal charges and discipline based upon serious misconduct that took place on the bench poses a risk to the public.

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Recommendation 14: The Court of Judicial Discipline Should Develop Procedures to Enhance Consistency in the Imposition of Sanctions Commentary Interviewees expressed to the consultation team perceptions that analogous misconduct by different judges resulted in the imposition of inconsistent sanctions. In the Discipline Committee’s experience this is not an unusual perception, but often it is not the reality. When deciding to impose discipline judicial disciplinary adjudicators must take into account a variety of factors, including the nature of the misconduct, its frequency, the judge’s motives, and aggravating and mitigating factors. In order to increase the public’s confidence in the system, the Discipline Committee suggests that the Court of Judicial Discipline consider adopting protocols similar to the non-exclusive Factors for Evaluating Judicial Discipline Cases used by the Board.153 These factors could supplement the on-line digest of court decisions and Pennsylvania Supreme Court precedent on the Court of Judicial Discipline website. Adopting such factors and publicizing them on the Court of Judicial Discipline’s website will enhance public understanding of the process and the sanctions imposed.

153 See also, In re Deming 736 P.2d 639 (Washington 1987) where the Supreme Court of Washington considered similar non-exclusive factors to assist it in determining the appropriate sanction. Subsequently, the Washington State Commission on Judicial Conduct incorporated mitigating and aggravating factors into Rule 6 of its Commission on Judicial Conduct Rules of Procedure.

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VIII. CONCLUSION As noted throughout this Report, the Discipline Committee was impressed by the dedication of the Pennsylvania Supreme Court, the Board, the Court of Judicial Discipline, and Chief Counsel’s Office. The team hopes that the recommendations contained in this Report will assist the system to move forward in a productive manner. The Committee is available for further assistance.

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APPENDIX A

TEAM BIOGRAPHIES

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AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON PROFESSIONAL DISCIPLINE

PENNSYLVANIA JUDICIAL DISCIPLINE SYSTEM CONSULTATION TEAM MEMBER BIOGRAPHIES

John S. Gleason is Regulation Counsel for the Colorado Supreme Court where he directs an office of the Court responsible for the regulation of Colorado attorneys and magistrates and the prosecution of unauthorized practice of law matters. He also serves as counsel to the Supreme Court Attorneys’ Fund for Client Protection, State Board of Law Examiners, and as Special Counsel for the Commission on Judicial Discipline. Prior to his appointment as Regulation Counsel to the Supreme Court, he served as a senior trial lawyer and Deputy Regulation Counsel. He previously served as a criminal prosecutor during law school and was in private practice with a law firm in Denver for several years. He attended Bowling Green State University and Columbia College as an undergraduate and earned his law degree from Ohio Northern University Pettit College of Law. Mr. Gleason is active locally and nationally with the National Organization of Bar Counsel, the National Organization of Judicial Counsel, the American Bar Association, the Colorado Bar Association, and is Past President of the Board of Directors of the National Client Protection Organization. Mr. Gleason serves as a member of the Colorado Supreme Court’s Judicial Council and the Colorado Supreme Court’s Standing Committee on the Rules of Professional Conduct. Mr. Gleason is a Fellow of the American Bar Foundation and a Fellow of the Colorado Bar Foundation. Mr. Gleason is an adjunct Professor of Law at the University of Denver Sturm College of Law and adjunct faculty member at Columbia College-Denver. Mr. Gleason is active in local community affairs and is President of the Board of Directors for a metropolitan youth sports organization. Hon. Barbara Kerr Howe is Past-Chair of the ABA Standing Committee on Professional Discipline, and currently serves as Chair of the Center for Professional Responsibility Coordinating Council. She was an Associate Judge of the Circuit Court for Baltimore County, Maryland, and now serves in “senior status” throughout the courts in Maryland. After her appointment in 1988, she was elected to the bench in 1990 for a fifteen-year term. She served as a director of the Attorney Grievance Commission of Maryland from 1983-1985 after having served on its Inquiry Panels for a number of years. She was a member of the Judicial Disabilities Commission of Maryland from 1991 through 1995, serving as its Chair during 1995. She is a graduate of the University of Maryland Law School and was a partner in a law firm engaged in general practice.

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Judge Howe was President of the Maryland State Bar Association, 1996-1997, a member of the ABA Standing Committee on Professionalism from 1995-1998, Chair of the Professionalism and Professional Responsibility Committee of the ABA General Practice Solo and Small Firm Division, a member and director of the American Judicature Society and the National Association of Women Judges. She is a life fellow of the Maryland Bar Foundation and of the American Bar Foundation. Professor Myles V. Lynk is the Peter Kiewit Foundation Professor of Law and the Legal Profession, and a Faculty Fellow of the Center for the Study of Law, Science and Innovation at the Sandra Day O’Connor College of Law at Arizona State University. In 2010 Professor Lynk received the Outstanding Faculty Member Award from the College of Law’s Alumni Association. His research and teaching are in the areas of civil procedure, legal ethics, bioethics, and corporate governance. Professor Lynk has also taught at the Georgetown University Law Center, George Mason University Law School, George Washington University School of Law and the University of Maryland School of Law. Professor Lynk was a partner in the law firm of Dewey Ballantine LLP before joining ASU’s law faculty in January 2000. He is a graduate of Harvard College (A.B. cum laude) and Harvard Law School, where he served on the Legal Aid Bureau. After law school he served as a law clerk to Judge Damon J. Keith of the U.S. Court of Appeals for the Sixth Circuit, as a Special Assistant to the Secretary of Health, Education and Welfare and in 1979-80 as an assistant director on the White House Domestic Policy Staff. In 1982-83 he served as a counsel on the staff of the Special Counsel to the U.S. House of Representatives Committee on Standards of Official Conduct. Professor Lynk is a member of the Council of the American Law Institute and a past member of the Boards of Directors of the Lawyers’ Committee for Civil Rights Under Law and the Women’s Legal Defense Fund (now the National Partnership for Women and Families). From 1998 to 2004 Professor Lynk was appointed by Chief Justice Rehnquist to serve on the Civil Rules Advisory Committee of the Judicial Conference of the United States. In the American Bar Association (“ABA”) Professor Lynk serves as Chair of the Standing Committee on Professional Discipline and is a past Chair of the Special Committee on Bioethics and the Law. He is the Secretary of the Fellows of the American Bar Foundation, Secretary of the Section of Individual Rights and Responsibilities, and a member of the Council of the Section of Business Law where he was a founder and co-chair of the Section’s Committee on Community Economic Development. Professor Lynk is a member of the ABA’s House of Delegates (“HOD”), Chair of the Minority Caucus of the HOD, and a past member of the ABA's Commission on Racial and Ethnic Diversity in the Legal Profession. Professor Lynk served as President of the District of Columbia Bar in 1996-97. Prior to that service he served as Chair of the District of Columbia Bar’s Client Security Trust Fund and as a member of the Bar’s Legal Ethics Committee. In Arizona, from 2002-04 he served as co-chair of the State Bar of Arizona’s Task Force on Multi-Jurisdictional Practice.

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Ellyn S. Rosen is Regulation Counsel for the American Bar Association Center for Professional Responsibility, where she serves as counsel to the ABA Standing Committee on Professional Discipline, whose mission is to assist the judiciary and the bar in the development, coordination, and strengthening of disciplinary enforcement throughout the United States, including the assessment of the regulatory ramifications of global legal practice developments. In this capacity, she liaises with the Conference of Chief Justices, National Organization of Bar Counsel and the Association of Professional Responsibility Lawyers. Ms. Rosen serves as Counsel to the ABA Commission on Ethics 20/20, charged with reviewing the Model Rules of Professional Conduct and the U.S. system of lawyer regulation in response to the challenges that globalization and advances in technology present to clients, lawyers, law firms, and the public. She also advises the ABA Task Force on International Trade in Legal Services. The Task Force monitors the General Agreement on Trade in Services and other free trade agreement negotiations affecting the legal services market, and provides input to the Office of the United States Trade Representative. Ms. Rosen is a member of the International Bar Association’s Professional Ethics Committee, and speaks frequently at international, state and local bar programs regarding issues relating to the regulation of the legal profession. Prior to joining the Center, Ms. Rosen was a senior litigation counsel with the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois. She serves on the Board of Governors of the Chicago Council of Lawyers, and chairs its Professional Responsibility Committee. Ms. Rosen co-chaired the Chicago Bar Association’s Young Lawyers Section Professional Responsibility Committee (1997-1999), and for the past eleven years has served as an investigator and interviewer for Chicago Alliance of Bar Associations for Judicial Evaluations. The Alliance evaluates and rates candidates seeking judgeships in Illinois via appointment or election. Ms. Rosen received her J.D. with honors, in 1989, from the Indiana University School of Law in Bloomington, Indiana. Ruth A. Woodruff is the Associate Regulation Counsel in the American Bar Association Center for Professional Responsibility where she provides counsel to the ABA Standing Committee on Professional Discipline. She earned her J.D. from Loyola University Chicago School of Law and clerked for Judge Frank J. McGarr in the United States District Court for the Northern District of Illinois. She has worked in the field of Professional Responsibility over the last twenty-five years, including serving as an editor of the ABA/BNA Lawyers’ Manual on Professional Responsibility, teaching Professional Responsibility courses as an adjunct professor at Loyola School of Law and at Roosevelt University’s Paralegal Studies Program, editing various legal textbooks, and consulting on a wide range of projects for the ABA Center for Professional Responsibility.