Pa. Supreme Court revises Code of Judicial Conduct; nepotism now expressly prohibited in judiciary

The Pennsylvania Supreme Court updated its Code of Judicial Conduct this

week, marking the first time the judicial canons were updated since the early 1990s.

One of the most significant changes is the outright prohibition of nepotism in the courts, which explicitly prevents jurists from making administrative appointments and hiring decisions based on familial connections.

Those personnel decisions shall be impartial, the high court ordered, and based on merit rather than personal connection.

“For courts in western democracies to effectively render independent and impartial decisions, the public’s confidence in the integrity of the judicial system and its judges is essential,” Chief Justice Ronald D. Castille said in a statement. “The Code of Judicial Conduct is designed to foster that confidence by assisting judges in their adherence to the highest judicial and personal conduct standards. It also establishes a basis for disciplinary agencies to regulate judges’ conduct.”

The nepotism provision is not surprising, given the fact that Castille has, in recent time, been reportedly critical of fellow Justice Seamus McCaffery over lawyer referral fees said to have been paid to McCaffery’s wife, Lise Rapaport, who is employed as her husband’s top judicial aide.

Attorneys representing the justice and his wife have told local newspapers that the couple did nothing wrong or illegal, and that the referral fees were acceptable under Pennsylvania law and court rules.

The new, anti-nepotism provision specifically spells out that judges should “avoid nepotism, favoritism and unnecessary appointments,” which is a departure from the code’s previous wording with regard to hiring, which simply advised judges to avoid “favoritism,” but said nothing about nepotism.

Another significant rules change in the new code is the prohibition of judges serving on commercial boards.

Judges who currently hold such positions have until July 1, 2015, to resign from their respective seats.

Previous limits on personal financial activities remain in force to avoid conflicts of interest and disqualifications from judicial matters, the Administrative Office of Pennsylvania Courts announced, but the new code permits jurists to place personal investments into a blind trust rather than relinquishing them all together.

The revised code also has language concerning judicial bias, prejudice and harassment, and it places a ban on judges holding membership in any organization that practices “invidious discrimination.”

Court reform advocates are hailing the changes as a major plus for Pennsylvania’s judiciary, which has been besieged by various scandals in recent memory.

“We think it is a thorough and thoughtful approach that they took to this much-needed update of the Code,” Lynn Marks, executive director of Pennsylvanians for Modern Courts, wrote in an emailed message to the Pennsylvania Record. “A strong, clear and comprehensive judicial code of conduct assures the public that judges are held to the highest ethical standards. Because judges sit in judgment of others, it’s especially important that they be held to the highest ethical standards.”

At the same time, Marks continued, the revised code still enables judges to maintain their “independence, discretionary decision-making powers, and give them guidance in many areas on what is permitted ethically and what is not.”

On what’s perhaps the most significant rules change, the ban on nepotism in hiring and appointments, Marks viewed the move as a positive, given that her group has been troubled “for years” about the shady practice.

“Judges must be seen as fair and impartial and when family members are appointed to key positions, the public perception is one of favoritism,” she wrote. “It doesn’t matter if the family member who was hired was supremely capable for the job; there are just too many potential ethical pitfalls when relatives are hired by judges.”

Similarly, Marks voiced approval for the prohibition on judges serving on corporate boards, saying that the practice “undermines the appearance of impartiality when those businesses or their interests later appear in court.”

The new Code of Judicial Conduct, in both “style and content,” is based on the model code promulgated by the American Bar Association back in 2007, “but it also reflects the experience of Pennsylvania and the provisions that best apply to the state judiciary,” according to the Administrative Office of Pennsylvania Courts.

The new code updates the version originally adopted by the Supreme Court in 1973.

The code is not intended to address every single aspect of judicial conduct, the AOPC wrote on its website, “but its precepts are to be applied in concert with constitutional requirements, statutes, other court rules, and decisional law, and with due regard for relevant circumstances.”

The revised code was born out of recommendations made by a work group, headed up Superior Court Judge Anne E. Lazarus, which was established by the Supreme Court back in 2011, according to the AOPC.

It was the 2007 American Bar Association’s Model Code of Judicial Conduct that was looked to by the work group, which was comprised of judges, lawyers and academicians.

Members of both the Pennsylvania and Philadelphia Bar Associations also collaborated with the work group.

Two other updates to the code were not substantive, but rather technical.

They dealt with a ban on broadcasting and photography in courtrooms and the issue of judges testifying as character witnesses at trial.

Those two issues were shifted from the Code of Conduct to the Rules of Judicial Administration, what the justices felt was a more appropriate placement.