Expert Columns

Ethics

Sam Stretton

The Judicial Discipline System Should Be Reconsidered

By Samuel C. Stretton |

After the Bruno decision, where does professional judicial discipline stand in Pennsylvania?

Sam Stretton

Sting Operations to Catch Judicial Misconduct Raise Concerns

By Samuel C. Stretton |

As a lawyer who practices in Philadelphia, I am concerned about the recent resignation of a Municipal Court judge and transfer of assignment of others. Was this done ethically?

Sam Stretton

Lawyers Should Avoid Overcommunication with Clients

By Samuel C. Stretton |

My practice has recently become unbearable. Clients text and email me constantly. Sometimes I think my entire day is spent texting and emailing. It has gotten to the point that I don't want to practice law anymore. What, ethically, can I do?

Sam Stretton

Lawyers Can Practice Temporarily in Other Jurisdictions

By Samuel C. Stretton |

Can I represent clients from other states?

Sam Stretton

The Rules in Judicial Campaigns are Still Strict

By Samuel C. Stretton |

I am considering running for judicial office in Pennsylvania in 2015. Under the new Code of Judicial Conduct, what can I say or not say during the judicial campaign?

Sam Stretton

Pennsylvania Lawyers Should Be Cautious 
About Offering Legal Advice in Delaware

By Samuel C. Stretton |

Is it permissible for a Pennsylvania lawyer to represent people in Delaware if the lawyer has local counsel or an office with a Delaware lawyer in it?

Sam Stretton

Judges Must Report Misconduct to Uphold the Legal Profession's Integrity

By Samuel C. Stretton |

What are the responsibilities of a judicial officer to report another judge or lawyer for professional misconduct?

Sam Stretton

Is There Anything Unethical About Electronic Closings?

By Samuel C. Stretton |

In an electronic closing, the standard jury trial is flashed before the jurors exactly as the judge charges. All exhibits, particularly photos or videos, are displayed to the jury. The lawyer's comments are written and published to the jury. The lawyer speaks them, but many times is looking at a computer when doing so.

Samuel Stretton

A Lawyer’s Firm Can Sometimes Represent an Opposing Party of a Potential Client

By Samuel C. Stretton |

A client came to my office on a domestic case and we met for an hour. The client then chose to hire someone else. Can my firm represent the spouse of that client?

Sam Stretton

Attorneys Shouldn't Speak to Witnesses 
During Cross-Examination.

By Samuel C. Stretton |

If a party is on the witness stand, can the attorney who presents the witness speak to the witness when he or she begins cross-examination?

Samuel Stretton

Judges shouldn't express to jurors their opinions on a verdict

By Samuel C. Stretton |

I tried a jury trial recently and it is clear the judge radically disagreed with the jury's decision based on the judge's demeanor and comments. Is that a violation of the Code of Judicial Conduct?

Samuel Stretton

The proposed judicial conduct rules would impact judges’ ability to serve as executor

By Samuel C. Stretton |

I am a district judge who also has a law practice. Can I still continue to serve as an executor?

Samuel Stretton

Lawyers should not be disqualified based on the appearance of impropriety

By Samuel C. Stretton |

It seems that more and more disqualification motions are being filed against lawyers as part of litigation strategy or tactics. Is there a problem, and why is this occurring? Should there be a better system to evaluate these disqualification motions?

Samuel Stretton

Lawyers should not warn witnesses about opposing counsel

By Samuel C. Stretton |

I have several witnesses who are being contacted by opposing counsel to interview. The witnesses have called me and I have told them not to speak to opposing counsel, since I do not trust opposing counsel. Is that proper, ethical advice?

Samuel Stretton

Judges have some flexibility in dealing with pro se litigants

By Samuel C. Stretton |

What are a judge's obligations to pro se litigants, if any?

Samuel Stretton

New rules tighten the allowances for extrajudicial compensation

By Samuel C. Stretton |

As a judicial officer, can I be paid for speaking engagements, receive royalties from a book or earn other income of that nature?

Samuel Stretton

New rules allow limited exceptions to the prohibition on judicial ex parte communications

By Samuel C. Stretton |

Can a judge consult with another judge or expert when deciding a case?

Sam Stretton

Judges Must Show No Prejudice When Performing Marriages

By Samuel C. Stretton |

I am a district court judge in Pennsylvania. I have seen the proposed rule changes to the rules of conduct for district judges. If passed, can I refuse to do same-sex marriages?

Sam Stretton

An ABA Opinion Says Lawyers Can Research Jurors on the Internet

By Samuel C. Stretton |

What are the limitations, if any, on investigation of potential jurors for an upcoming criminal trial?

Samuel Stretton

Attorney Discipline Must Adapt to the Changing Profession

By Samuel C. Stretton |

I am looking at Disciplinary Board opinions and it appears that lawyers are now being suspended for several cases of neglect. This type of discipline seems very severe and sometimes uncalled for. Even if a lawyer does neglect one or two cases, it seems grossly unfair to take away the license to practice, particularly if the lawyer has been practicing for many years with otherwise good results.

Samuel Stretton

Recent Changes Make Charges of Criminal Contempt a Larger Concern for Lawyers

By Samuel C. Stretton |

I have been cited for criminal contempt by a judge in the court of common pleas and fined $100 due to my late appearance for a court hearing. Do I have to report this to the Office of Disciplinary Counsel?

Samuel Stretton

Attorney discipline should not be on a progressive scale.

By Samuel C. Stretton |

In attorney disciplinary matters, is there any set discipline for certain types of misconduct?

Samuel Stretton

A Line Must Be Drawn Regarding Trial Tactics

By Samuel C. Stretton |

Is it ethical to be very nasty to a witness or victim at a preliminary hearing for the purpose of having the victim overreact to the lawyer at trial when the lawyer is not treating him or her in the same mean way?

Samuel Stretton

Technology should not get in the way of professionalism

By Samuel C. Stretton |

Articles in the ABA Journal column called "The New Normal" strongly suggest change and technology are critical ingredients for the success of any future law firm. Do you disagree?

Samuel Stretton

Attorney-client privilege bars refuting a past client's comments

By Samuel C. Stretton |

I have represented a criminal defendant in the past who subsequently terminated my representation. That individual made certain statements to me about an unrelated incident. I now see that individual is testifying at a criminal trial saying exactly the opposite of what he told me. Do I have a duty to correct it?

Samuel Stretton

Lawyers must be cautious about practicing in multiple jurisdictions

By Samuel C. Stretton |

I am a lawyer licensed in Pennsylvania, but at times I get cases in New Jersey and Delaware from people I know. If the matter goes to litigation, I retain local counsel and then file a motion pro hac vice.

Samuel Stretton

The legal profession has undergone many changes in the recent past

By Samuel C. Stretton |

What are the major changes you have observed in the practice of law during your 40-plus years representing clients?

Samuel Stretton

Attorneys can reject any client that isn't a court appointment

By Samuel C. Stretton |

I am a young lawyer. Are there circumstances when I should decline representing a client?

Samuel Stretton

The U.S. Supreme Court's attorney discipline rules are not in line with other courts.

By Samuel C. Stretton |

How does the U.S. Supreme Court handle reciprocal attorney discipline?

Samuel Stretton

It is time for the state to fund indigent defense.

By Samuel C. Stretton |

What is the status of indigent defense and court-appointed counsel in Philadelphia?

Sam Stretton

Oral Argument in Appellate Court Requires Preparation.

By Samuel C. Stretton |

I have my first oral argument before an appellate court in Pennsylvania. What advice would you give?

Samuel Stretton

Aging attorneys are a lurking problem in the legal profession.

By Samuel C. Stretton |

I am a younger lawyer, and I noticed many of the older lawyers aren't retiring and are still practicing in their 70s and 80s. Is that unusual?

Sam Stretton

Judges Now Have a New Code of Conduct to Follow

By Samuel C. Stretton |

Could you highlight the changes in the new Code of Judicial Conduct adopted by the Pennsylvania Supreme Court?

Samuel Stretton

Lawyers can break attorney-client privilege to protect clients facing self-harm.

By Samuel C. Stretton |

I am concerned about my client. The client has not been doing well and recently has been talking about suicide in the context of a domestic case. Can I reveal that information to other family members or to medical people or other authorities to get the person help?

Virtual Law Offices are Allowed But Not Ideal.

By Samuel C. Stretton |

I am an older member of the bar and I noticed my opposing counsel has a virtual law office. Is there anything unethical about doing that?

Lawyers Can Withdraw in the Case of Irreconcilable Differences with a Client

By Samuel C. Stretton |

I have just been appointed in a criminal case by the court of common pleas in my county. I don't want to take the case. Further, the client and I have a fairly major disagreement dealing with issues of ethics and honesty. What can I say in my withdrawal petition?

Letters to judges on the merits should be avoided

By Samuel C. Stretton |

Does a lawyer violate the prohibition against ex parte contact with a judicial officer when the letter to the judge is copied to opposing counsel?

Clients have final say regarding the reporting of a previous lawyer's unethical behavior

By Samuel C. Stretton |

I represent a client and have just taken over the case. From my review, it appears that the original lawyer acted very unethically. I wish to report this to the Office of Disciplinary Counsel. The client objects. What are my obligations?

Lawyers investigating corporate misconduct must closely follow the rules

By Samuel C. Stretton |

I have been hired by a corporation to investigate misconduct within the corporation and its employees. Over the next couple of days, I will be meeting with a number of employees of the corporation.

Comments about influencing a judge's decisions are unethical

By Samuel C. Stretton |

The district attorney in my county was the campaign manager for the first assistant district attorney's election campaign for judicial office. The first assistant district attorney won the election and will serve as a common pleas judge.

A client has no authority to dictate whether a lawyer may grant opposing counsel's request for an extension

By Samuel C. Stretton |

I have a very difficult client who always wants to micromanage what I'm doing in the case. This client has forbidden me from giving any extensions of time to opposing counsel. Am I bound by this order from the client or can I provide some courtesy?

It's best to be conservative in reporting criminal 
contempt findings

By Samuel C. Stretton |

I am an attorney who was found in summary criminal contempt by a common pleas judge in Pennsylvania. I was fined $500 and ordered to do some community service work. Do I have to report this conviction to the Office of Disciplinary Counsel?

Judges with attorney spouses must be aware of the occasional need for recusal

By Samuel C. Stretton |

My spouse is an attorney. I am a judicial officer. Can my spouse serve as an assistant district attorney or assistant city solicitor and, if he or she does, would I have to disqualify myself in all criminal or municipal cases?

Lawyers should only sign verifications in extreme circumstances

By Samuel C. Stretton |

I do a lot of civil litigation in my county, particularly defense work. In many of the complaints filed, the lawyers are signing the verification, not the client. At trial, clients sometimes disavow what the lawyer said in the complaint. Is this unethical and what can I do about it?

Complying with the rules when moving between the public and private sectors is critical

By Samuel C. Stretton |

If an assistant district attorney leaves the District Attorney's Office and is hired by a private firm, can that firm continue to defend criminal defendants?

Gag orders should be carefully crafted and 
sparingly used

By Samuel C. Stretton |

In a high-profile case, a judge has issued a gag order. What are the ethical considerations of a gag order and how does it affect my First Amendment rights as a lawyer?

Delaying a case to benefit a client is unethical

By Samuel C. Stretton |

I am involved in civil litigation and it would be to my client's benefit to delay these matters as long as I can. For whatever reason, the opposing counsel is not being aggressive on the case. Is it ethical for me to use these delaying tactics or should I proceed?

Lawyers have no obligation to volunteer 
information learned through privilege

By Samuel C. Stretton |

I had a case where the court system did not pick up on the fact that my client had a prior DUI several years ago but within the 10-year window as set forth in the statute. No one ever asked me if my client had a prior record. The client did not have to fill anything out. Based on the record provided by the probation department, the court indicated this was a first offense and sentenced accordingly. Did I do anything unethical?

A strong, unified judicial system is important for maintaining the public's respect

By Samuel C. Stretton |

The Pennsylvania Supreme Court has denied the jury commissioner challenge and many jury commissioner offices have been abolished in Pennsylvania. In what direction is the judiciary going?

What is the best way for a young lawyer to really learn the Rules of Professional Conduct and his or her ethical responsibilities?

By Samuel C. Stretton |

What is the best way for a young lawyer to really learn the Rules of Professional Conduct and his or her ethical responsibilities?

It would be a mistake to change the referral-fee arrangement

By Samuel C. Stretton |

I was at a swearing in for a judicial officer recently where there were Supreme Court justices and there was some informal talk I overheard about abolishing the rule allowing referral fees in Pennsylvania. Is there any proposed rule?

Judicial officers are always under a microscope

By Samuel C. Stretton |

As someone who is considering running for judge, what are the most serious problems a judicial officer can get into that could cause major judicial disciplinary consequences?

Judicial campaigns must strictly comply with the Election Code

By Samuel C. Stretton |

As a candidate running for common pleas court, what kind of letters can I send to supporters, contributors and volunteers?

Changes are needed in the Philadelphia court system

By Samuel C. Stretton |

I am a relatively young lawyer in Philadelphia. What is the current status of court appointments and is the system ending?

Representing client before 
agency requires complete truth

By Samuel C. Stretton |

I want to represent a client before an administrative agency. There is not a trial or adjudicative proceeding. Am I bound by the Rules of Professional Conduct because there are people appearing on behalf of other clients who are not lawyers and don't appear to be so bound?

Lawyers should pay close attention to self-reporting requirements for offenses

By Samuel C. Stretton |

I was just convicted of retail theft, a summary offense. I was given a fine. Do I have any reporting requirements to the Office of Disciplinary Counsel?

Retainers require well-written fee agreements

By Samuel C. Stretton |

I often hear discussion about retainers. How many different types of retainers are there?

There is confusion about who has the authority to discipline judges in Pennsylvania

By Samuel C. Stretton |

I am confused as to the role of the Pennsylvania Supreme Court versus the role of the Court of Judicial Discipline. Which has the ultimate authority to discipline judges?

Questions & Answers on Professional Responsibility

By Samuel C. Stretton |

I have served on the arbitration panel as the plaintiff's arbitrator. This was a three-member panel and one member was the neutral. Subsequently, the plaintiff has come to me to represent them on issues involving this matter. Can I do so?

Take a professional approach in dealing with opponents

By Samuel C. Stretton |

I am a young lawyer involved in somewhat significant litigation. The opposing lawyer, who is very experienced, constantly files motions criticizing me and alleging bad conduct. How do I react to this?

Attorney advertisements should not include celebrities

By Samuel C. Stretton |

I am an attorney who is trying to develop more business. Fortunately, I know a number of people who are considered celebrities. Can I run an ad with a picture of myself and my celebrity friends in the newspapers and on our website and other locations?

Requesting recusal is the best option when litigating against a family court master

By Samuel C. Stretton |

I practice in a county where there are part-time masters and conciliators in family court. Sometimes, while having cases before the master or conciliator, I am also litigating against that person in unrelated family court cases. Is that permissible?

Firms should be cautious about confidentiality when paralegals depart

By Samuel C. Stretton |

My litigation paralegal, who has worked closely with me on a number of litigation cases, has recently been hired by a law firm that opposes me in a number of cases. What steps should that law firm take — or what steps should I take — to protect confidentiality and any conflict of interest?

Questions & Answers on Professional Responsibility

By Samuel C. Stretton |

I am a lawyer with a master's degree in clinical psychology and I see clients in the same office where I have my law practice.

Questions & Answers on Professional Responsibility

By Samuel C. Stretton |

What are a lawyer's ethical obligations, if any, concerning sealing court records or appellate court decisions?

Questions & Answers on Professional Responsibility

By Samuel C. Stretton |

I was reinstated to the practice of law in Pennsylvania by the state Supreme Court. Can I practice in federal court? What is the procedure for being reinstated in federal court?

Judicial candidates must protect the dignity of the office.

By Samuel C. Stretton |

I am running for judicial office. What should a candidate for judicial office not do?

Lawyers are obligated to present 
 mitigating evidence

By Samuel C. Stretton |

I attended a seminar on capital litigation and the question posed was whether a lawyer could be ordered by his client not to present any mitigation if the client had been convicted of murder of the first degree. According to the hypothetical, the client preferred death as opposed to life imprisonment and at least appeared to be competent. Can a lawyer ethically allow a client to go to the death phase without presenting any mitigating evidence?

It is unethical for insurance defense firms to submit legal bills to third-party auditors

By Samuel C. Stretton |

Is it ethical for insurance defense law firms to submit legal bills to a third-party auditing service and participate in "legal service programs" whereby an insurer may limit an attorney's representation or defense of the client, the insured?

Bad prosecutorial behavior should not be condoned

By Samuel C. Stretton |

I do a lot of court-appointed criminal defense out of Philadelphia. At times, I see young assistant district attorneys make statements they should not make during closing and opening speeches. What is the responsibility of the District Attorney's Office in the Appellate Division when it is clear the young assistant has acted incorrectly?

Lawyers may need to adjust in the wake of budgetary issues

By Samuel C. Stretton |

I am a lawyer who does a lot of court-appointed work and it is a substantial part of my law practice. I see there may be cuts in federal court-appointed payments and/or delays because of budgetary issues based on what is known as the sequester statute.

Pledges to support organizations are prohibited

By Samuel C. Stretton |

I saw a candidate for the court of common pleas receive the endorsement of a county Fraternal Order of Police and in the endorsement agreed to sign a pledge to support issues involving police and other matters. Is that improper?

Judicial officers can at times show mercy

By Samuel C. Stretton |

Is it unethical for a judge, in a summary criminal case or a summary traffic case, to acquit someone, even though the judge knows the person is guilty, for the sole reason of exercising some sort of mercy or to give the person a second chance?

Lawyers cannot assist in any way someone avoiding a warrant

By Samuel C. Stretton |

I am an assistant district attorney and there is a criminal defendant who has been a fugitive. I called to try to locate the fugitive and he answered the phone. He refused to state where he was.

Lawyers should avoid changing fee arrangements on clients

By Samuel C. Stretton |

I am a lawyer who is representing a client and it is clear to me that my fee arrangement is inadequate. Can I change the fee agreement during the middle of the representation?

As long as there is full disclosure, the decision to recuse is up to the judge

By Samuel C. Stretton |

I am familiar with a case involving gas drilling in Pennsylvania. There is litigation involving the gas drilling before a judge. I discovered that the wife of the judicial officer is active in organizations that oppose drilling and fracking in Pennsylvania, particularly in the township where the issue is being raised. Should the judge recuse himself?

Seeking a referral fee from a financial adviser is unwise

By Samuel C. Stretton |

May I accept a referral fee from a financial adviser if he receives a full client disclosure statement executed by my client?

Lawyers must recognize when their skills are deteriorating

By Samuel C. Stretton |

I am a lawyer in the latter part of my 60s and I intend to keep practicing, hopefully for a number of years. What are the ethical considerations an older lawyer or senior member of the bar must think about?

It is unethical for an attorney to engage in ex parte communication without notifying opposing counsel

By Samuel C. Stretton |

In discussing a dispute with opposing counsel, we discussed a proposed resolution. The next day, he filed an injunction and got an ex parte order from the local trial judge without notifying either myself or my client that he intended to do so. Is that unethical?

Lawyers should not take the client's verification if they can avoid it

By Samuel C. Stretton |

I am an attorney who does a fair amount of personal injury litigation. I noticed the plaintiff's attorney took the verification on answers to new matter and also the verification on the complaint. Is that ethical?

Firms must be careful to follow Rules of Professional Conduct governing interactive websites

By Samuel C. Stretton |

My firm is becoming very technologically advanced, particularly in advertising. We have now developed a very interactive website. Are there any ethical concerns?

Lawyers should seek a client's consent before pushing for memorandum opinions to be published

By Samuel C. Stretton |

I have obtained a ruling from an appellate court in a case with a memorandum opinion that is very favorable to my client and which establishes new law that will be helpful to my client and other potential clients in future cases. Is it a violation of the ethical rules of confidentiality for me to actively seek publication of the memorandum opinion? Do I need my client's consent?

Election lawyers representing nominating petitioners must keep the petitioners' best interests in mind.

By Samuel C. Stretton |

I am an attorney who has handled election cases in the past and anticipates this year to have a number of election cases where I am either challenging nominating petitions or defending nominating petitions.

Lawyers can't represent their clients' opponents in another matter

By Samuel C. Stretton |

I represent Client A against Business B. Business B now wishes to hire me on a matter totally unrelated to my representation of Client A. Can I do so?

A lawyer must be careful when attempting to help an unrepresented opposing party

By Samuel C. Stretton |

I was at a real estate settlement the other day where I represented the mortgage company. There was a lawyer present who was handling the settlement for the title company.

While there is no duty to disclose consultation 
with an ethics lawyer to a client, there is a duty 
to disclose any ethical breaches.

By Samuel C. Stretton |

I work for a midsized law firm. In representing a client, an ethical issue arose about the firm's handling of the client's case. This firm has a lawyer the firm consults regularly on ethical issues. If I call this lawyer, do I have a duty to disclose this to the client?

A judge may not sign nominating petitions for 
political candidates

By Samuel C. Stretton |

Can a judicial officer sign nominating petitions for other candidates? Would the answer change if the judicial officer were running for election in the same year also?

A client may execute a waiver of future conflicts, but the practice is disfavored.

By Samuel C. Stretton |

I am representing several clients for claims of injuries resulting from a motor vehicle accident. Can I have the clients, as part of the fee agreement, sign a consent to waive future conflicts of interest that might arise in this representation?

A lawyer must be very careful before employing the tactic of introducing prior convictions against his or her client in a criminal case

By Samuel C. Stretton |

In a capital murder case, I want to question the jurors during voir dire about my client's four prior robbery convictions. I am doing so because I wish to let the jury know everything, strip the jury down, so I can get a true sense of who will oppose death and who will oppose life. My client is not testifying, so normally his prior robbery convictions would not be admissible. Can I do so?

Capital cases require give and take between the lawyer and the client

By Samuel C. Stretton |

I am starting a trial in a capital murder case. I have tried many capital murder trials and have attended many seminars on voir dire in capital cases. My clients insisted on keeping one juror who I truly believe would hurt the clients' cause, particularly on the death penalty. Can I overrule the client on this issue?

Prosecutors are not exempt from the Rules of Professional Conduct

By Samuel C. Stretton |

I am a young attorney handling criminal cases and have seen the district attorney and other prosecutors in trial give statements of personal opinion and, at times, not turn over all discovery.

Lawyers have an obligation to inform the court of evidence of jury bias discovered through social media

By Samuel C. Stretton |

I am an attorney who is about to begin a jury trial. I have obtained a list of all of the jurors and have gone on social media to learn about some of these jurors. I see information that would show that some jurors are extremely biased one way or the other. Do I have an ethical duty to advise the court if the jurors don't state the bias they are showing in social media when they are questioned?

Lawyers who represent corporations and serve on boards must be very sensitive to potential conflicts

By Samuel C. Stretton |

I am an attorney who represents a corporation and also serves on the board of directors of that corporation. Is this dual role prohibited?

A lawyer may not take a contingency fee for a case before the Client Security Fund

By Samuel C. Stretton |

I have been approached by a client to sue a lawyer who misused funds of the client. I have also filed a complaint with the Pennsylvania Lawyers Fund for Client Security. Can I have a contingent fee to do this?

Attorney liens should be used cautiously in Pennsylvania

By Samuel C. Stretton |

I am confused about attorney liens, when I can hold a file and how I can get paid. Are attorney liens still recognized in Pennsylvania?

A lawyer has no duty to violate attorney-client privilege by informing a court that a client's financial situation has changed

By Samuel C. Stretton |

I am handling a court-appointed case on appeal for a client. The client also hired me on a personal injury case. I have just gotten a nice settlement for the client. Do I have to tell the court-appointed system that the client no longer qualifies for indigent representation?

Nonrefundable fee clauses do not give attorneys license to keep large sums of money for doing nothing

By Samuel C. Stretton |

I am an inmate in a state correctional institution. I hired a lawyer and he wanted a $50,000 retainer. I paid him half the retainer. I had two preliminary hearings and he did not show up. Because he didn't show up, I then fired him. I requested a refund of the fee. He refused, saying he had a nonrefundable fee clause. Does that protect him from keeping the funds?

A judge who writes a book on a nonlegal subject must still be careful about how the book is promoted

By Samuel C. Stretton |

I am a judicial officer writing a book on a nonlegal subject. What can I do to promote this book?

Lawyers who find themselves overextended have an ethical obligation to address the situation.

By Samuel C. Stretton |

I am a young lawyer and find myself overextended because of the bad economic situation in the United States.

Lawyers are Obligated to Make Clear What Information is Privileged

By Samuel C. Stretton |

I am a corporate counsel. Most of my communication, particularly in-house, is through email. As the in-house counsel, I give both legal advice and business advice, when asked. Are my emails covered by attorney-client privilege?