Judicial Conduct Defense
I represent judges and judicial officers before the Judicial Conduct Board of Pennsylvania and the Court of Judicial Discipline.
A judge facing a Judicial Conduct Board inquiry is in a different position from a lawyer facing an Office of Disciplinary Counsel investigation. The rules are different. The confidentiality protections are different. And the stakes can include not only professional reputation, but the judicial office itself.
The best opportunity to resolve a judicial conduct matter is often before formal charges are filed.
Who the Judicial Conduct Board Can Investigate
The Judicial Conduct Board has jurisdiction over Pennsylvania judicial officers, including:
- Justices of the Supreme Court of Pennsylvania
- Judges of the Superior Court and Commonwealth Court
- Judges of the Courts of Common Pleas
- Judges of the Philadelphia Municipal Court
- Magisterial district judges
Its jurisdiction also extends to senior judicial officers within the applicable rules.
The Board does not investigate federal judges, administrative law judges, court administrators and other court employees, arbitrators, masters, or lawyers who are not serving as judicial officers. Complaints concerning lawyers ordinarily fall within the jurisdiction of the Office of Disciplinary Counsel.
The Board may investigate a complaint filed by someone else, and it may also initiate a complaint on its own.
How a Judicial Conduct Complaint Moves
Judicial conduct matters proceed differently from attorney disciplinary cases. Understanding the stage of the investigation is important because the judge may not even know that a complaint exists during the early part of the process.
Preliminary Inquiry
When the Board receives a complaint, its staff first conducts a preliminary inquiry.
Staff may review court records and other documents, interview the complainant or witnesses, and gather additional information. The judicial officer is often not notified that a complaint has been filed during this stage.
After the preliminary inquiry, the Board may dismiss the complaint, request additional preliminary investigation, refer an appropriate matter elsewhere, or authorize a full investigation.
Many complaints end at this stage.
The Judicial Conduct Board is not an appellate court. It does not exist to decide whether a judge made the correct legal ruling or properly exercised judicial discretion. Legal error is addressed through the appellate process.
That does not mean that everything occurring in connection with a judicial decision is beyond the Board’s jurisdiction. Conduct surrounding a case — bias, improper communications, abuse of judicial office, unreasonable delay, demeanor, retaliation, or other conduct implicating the Code of Judicial Conduct — can present a judicial conduct issue even though disagreement with the ruling itself does not.
Full Investigation
If the Board authorizes a full investigation, the judicial officer must be notified.
That notice is important. Under the Judicial Conduct Board Rules of Procedure, it identifies the specific allegations being investigated and the constitutional, statutory, ethical, or disciplinary provisions that the Board believes may have been violated.
The judicial officer is given the opportunity to provide a written response or other information, ordinarily within 20 days after receiving the notice.
This is the point at which I strongly recommend that a judge have counsel.
The response should not merely react to individual allegations. It should identify the actual factual and legal issues, provide necessary context, address the applicable Code provisions, identify supporting evidence, and anticipate the questions the Board will have as it completes its investigation.
The Board may continue gathering evidence after receiving the response. It has subpoena power and can compel testimony and the production of relevant documents.
Ultimately, the question for the Board is whether there is probable cause to file formal charges in the Court of Judicial Discipline.
That is an important distinction. The Board does not adjudicate guilt and does not impose judicial discipline. Its role is investigative and prosecutorial.
Formal Charges
If the Board finds probable cause, it may file a Board Complaint containing formal charges in the Court of Judicial Discipline.
This changes the nature of the proceeding.
The confidential Board investigation becomes a public judicial proceeding. The Court of Judicial Discipline functions as a trial court. Counsel for the Judicial Conduct Board prosecutes the charges, the judicial officer may be represented by counsel and present a defense, and the Court hears and decides the evidence.
The judicial officer is presumed innocent, and the Judicial Conduct Board has the burden of proving the charges by clear and convincing evidence.
The Court issues written findings of fact and conclusions of law and, if it finds misconduct, determines the appropriate sanction.
The Court also has authority in appropriate cases to impose an interim suspension, with or without pay, after formal charges have been filed. An interim suspension may also be available when an indictment or information charging a felony has been filed.
That makes some judicial conduct matters urgent even before the merits are tried.
Appeal
A judge or magisterial district judge subject to a final adverse disciplinary order has a right to appeal to the Supreme Court of Pennsylvania.
If the respondent is a Justice of the Supreme Court, the appeal is heard instead by a Special Tribunal composed of seven judges chosen by lot from eligible judges of the Superior Court and Commonwealth Court.
The Judicial Conduct Board may also appeal certain orders dismissing charges.
Confidentiality — and Its Limits
Confidentiality is one of the most important differences between a Judicial Conduct Board investigation and many other professional proceedings.
Complaints filed with or initiated by the Board are not public information. Statements, testimony, documents, records, and other evidence acquired during the Board’s investigation are likewise protected from public disclosure, and Board proceedings are confidential unless the judicial officer waives confidentiality.
During preliminary inquiry, the judge may not even know the complaint exists.
Once a full investigation is authorized, however, the judicial officer must be advised of the nature and content of the complaint and given an opportunity to respond before the Board makes a probable-cause determination.
There are exceptions to confidentiality. For example, if the existence of an investigation becomes public independently of the Board, a judicial officer may ask the Board to make certain limited statements concerning the investigation and the judicial officer’s response.
But the most important limit is this:
If the Board files formal charges in the Court of Judicial Discipline, the case becomes public.
At that point, the Board Complaint, court proceedings, motions, hearings, decisions, and other filed materials may become part of a public judicial record. There is also no guarantee that the identity of the original complainant will remain confidential.
That is one reason the investigative stage matters so much.
The objective is not simply to prepare for a public disciplinary case. When the evidence and law permit it, the objective is to resolve the matter before there is one.
What I Do
I represent and advise judicial officers in matters including:
- Responding to notices of full investigation and other inquiries from the Judicial Conduct Board
- Developing the factual and legal response before the Board makes a probable-cause determination
- Preparing judicial officers for interviews, testimony, and investigative proceedings
- Responding to subpoenas and requests for documents
- Defending formal charges in the Court of Judicial Discipline
- Addressing requests for interim suspension
- Handling briefing, hearings, sanctions proceedings, and appellate issues
- Advising judges under the Pennsylvania Code of Judicial Conduct
- Advising magisterial district judges under the Rules Governing Standards of Conduct of Magisterial District Judges
- Advising judicial candidates concerning campaign and political-conduct rules
- Counseling judges prospectively on ethics questions before they become disciplinary problems
Judicial Ethics Advice Before There Is a Complaint
Some of the most important judicial ethics work happens when there is no complaint at all.
A judge calls because something has happened — or is about to happen — and wants to make the right decision before acting.
The questions are often practical and immediate:
- Does a prior professional, business, or personal relationship require recusal or disqualification?
- Is disclosure sufficient, and can the parties waive disqualification?
- What should a judge do after receiving an unsolicited or unavoidable ex parte communication?
- May a judge accept a speaking engagement or serve on a particular board?
- What limitations apply to teaching, writing, charitable activity, or compensation for extrajudicial work?
- How should a judge address inappropriate behavior by a lawyer or litigant without creating a separate judicial-conduct problem?
- What may a judicial candidate say while campaigning?
- What restrictions apply to political activity and endorsements?
- Can a judge attend, speak at, or participate in a particular event?
- What can a judge post, like, share, follow, or respond to on social media?
- When does a friendship, social connection, or online relationship create a disclosure or recusal issue?
Judicial ethics questions are often highly fact-specific. Small factual differences can change the analysis.
The Pennsylvania Judicial Ethics Advisory Board is the Supreme Court-designated body that provides formal ethics advice and opinions to Pennsylvania judicial officers and judicial candidates. When appropriate, I also help judges identify whether an issue should be presented for formal advisory guidance and frame the question before action is taken.
Prospective advice provides something disciplinary defense cannot: the opportunity to avoid the problem altogether.
The Issues That Generate Judicial Conduct Matters
Judicial conduct cases arise in many settings, but recurring issues include:
- Demeanor and courtroom conduct, including treatment of lawyers, litigants, witnesses, court employees, and others
- Bias, prejudice, harassment, or the appearance of partiality
- Recusal and disqualification
- Ex parte communications
- Delay and failure to perform judicial duties
- Abuse of the prestige or authority of judicial office
- Improper intervention in matters involving friends, relatives, colleagues, or others
- Political and campaign conduct
- Social media activity
- Extrajudicial activities and outside employment
- Financial and reporting obligations
- Criminal conduct
- Conduct outside the courtroom that brings the judicial office into disrepute
- Mental or physical disability affecting the ability to perform judicial duties
- Substance-use issues
Not every violation of an aspirational norm or every mistake warrants judicial discipline. The Codes themselves recognize that disciplinary consequences depend on factors including the seriousness of the conduct, intent, whether there is a pattern, and the effect of the conduct on others and on the judicial system.
Context matters.
Sanctions
If the Court of Judicial Discipline finds misconduct by clear and convincing evidence, it has authority to impose sanctions that can include:
- Reprimand or censure
- Suspension
- Suspension without pay
- Removal from judicial office
- Other discipline warranted by the record
For matters involving mental or physical disability, the Court may also order retirement or impose other limitations on a judicial officer’s activities.
Removal has an additional consequence: a judicial officer removed under Article V, Section 18 is thereafter ineligible for judicial office.
A disciplinary sanction can also have consequences beyond the office itself. The Pennsylvania Constitution and Judicial Code contain provisions governing salary, compensation, and retirement benefits when a judicial officer is suspended or removed. Those consequences need to be considered as part of the defense strategy whenever suspension or removal is realistically at issue.
Why Judicial Officers Call Me
I have focused my practice on professional responsibility and legal ethics for more than three decades.
I co-chair the Pennsylvania Bar Association Legal Ethics and Professional Responsibility Committee. I am a former chair and current Duty Officer of the Allegheny County Bar Association Professional Ethics Committee, and I served as President of the Allegheny County Bar Association.
I represent judges, magisterial district judges, and other judicial officers in professional responsibility matters throughout Pennsylvania, both when a complaint has been filed and when a judge needs confidential ethics advice before acting.
Judicial conduct matters require a different kind of defense from ordinary litigation.
The legal analysis matters. So does understanding the institution, the confidentiality rules, the role of the Board, the distinction between an adverse ruling and judicial misconduct, and the consequences of turning a confidential investigation into a public proceeding.
The earlier those issues are identified, the more options the judicial officer generally has.
Frequently Asked Questions
Will I know if someone has filed a Judicial Conduct Board complaint against me?
Not necessarily.
During the preliminary inquiry, the Board frequently investigates without notifying the judicial officer. If the Board decides to proceed with a full investigation, however, the Board must notify the judicial officer and provide the nature of the allegations and an opportunity to respond before making a probable-cause determination.
How long do I have to respond to a full-investigation notice?
Under Judicial Conduct Board Rule of Procedure 30, the notice advises the judicial officer of the right to provide a written response or other information within 20 days of receipt of the notice.
That is a short period in which to assess the allegations, identify the applicable ethical provisions, collect documents, investigate the facts, and prepare a meaningful response. Call counsel when you receive the notice, not when the response is almost due.
Is a Judicial Conduct Board complaint public?
Generally, no.
Complaints, investigative evidence, and proceedings before the Board are confidential, subject to constitutional and rule-based exceptions.
If formal charges are filed in the Court of Judicial Discipline, the proceeding becomes public.
Will I be told who filed the complaint?
Not necessarily.
When providing notice of a full investigation, the Board has discretion concerning disclosure of the complainant’s identity. If formal charges eventually proceed publicly, there is no guarantee that the complainant’s identity will remain confidential.
Can the Board discipline me because someone disagrees with one of my rulings?
Legal error alone is not judicial misconduct, and the Judicial Conduct Board is not an appellate court. It does not review or reverse judicial rulings.
Conduct associated with a case can nevertheless raise disciplinary issues. Bias, ex parte communications, improper motive, abuse of judicial authority, demeanor, unreasonable delay, or other conduct can implicate the Code even though the underlying case also presents an appellate issue.
What is the standard of proof?
There are two different standards at two different stages.
The Judicial Conduct Board determines whether there is probable cause to file formal charges.
If charges are filed, the Board must prove them in the Court of Judicial Discipline by clear and convincing evidence.
Can the Judicial Conduct Board subpoena me?
Yes. The Pennsylvania Constitution gives the Board authority to compel testimony under oath, including testimony from the judicial officer who is the subject of the investigation, and to compel production of relevant documents and records.
Should I respond to the Board myself?
I recommend having counsel before responding.
The Board’s full-investigation notice begins a process that can ultimately result in a public proceeding, suspension, or removal from office. The response should be prepared with an understanding not only of the immediate allegation, but of what the Board will have to decide and what the record may look like if formal charges follow.
Do you represent magisterial district judges?
Yes. Magisterial district judges are within the Judicial Conduct Board’s jurisdiction, and I represent them in both disciplinary matters and prospective ethics matters.
Can I call you about an ethics issue even if no complaint has been filed?
Yes.
In many circumstances, that is the best time to call.
A question about recusal, an ex parte communication, campaign conduct, social media, an extrajudicial activity, or another judicial ethics issue is much easier to address before the judge acts than after a complaint has been filed.
Contact
If you have received notice of an investigation, a subpoena, formal charges, or any other communication from the Judicial Conduct Board of Pennsylvania, call before you respond.
Amy J. Coco, Esquire
Law Office of Amy J. Coco, PLLC
429 Fourth Avenue, Suite 300
Law & Finance Building
Pittsburgh, PA 15219
412.763.1349