In Re: Order Rescinding Rule 3.9, and Amending Rules 3.10-3.11 and the Comment to Rule 3.12 of the Rules Governing Standards of Conduct of Magisterial District Judges, and Amending Rule 323 of the Pennsylvania Rules of Civil Procedure Before Magisterial District Judges

FINAL REPORT1

Recommendation 5-2008, Minor Court Rules Committee

Rescission of Rule 3.9, Amendment of Rules 3.10-3.11 and the Comment to
Rule 3.12 of the Rules Governing Standards of Conduct of Magisterial District Judges,
and the Official Note to Rule 323 of the Pennsylvania Rules of Civil Procedure before
Magisterial District Judges

INCOMPATIBLE PRACTICES AND LIMITATIONS

On December 14, 2016, effective April 1, 2017, upon recommendation of the
Minor Court Rules Committee,2 the Supreme Court of Pennsylvania approved the
rescission of Rule 3.9, the amendment of Rules 3.10 and 3.11, and the Comment to
Rule 3.12 of the Rules Governing Standards of Conduct of Magisterial District Judges,
as well as the amendment of the Official Note to Rule 323 of the Pennsylvania Rules of
Civil Procedure before Magisterial District Judges.3

I. Background and Discussion

The Minor Court Rules Committee (the “Committee”) recommended the
rescission of Rule 3.9 and the amendment of Rule 3.10 of the Rules Governing
Standards of Conduct of Magisterial District Judges. Rule 3.9 addresses activities
prohibited for all magisterial district judges, while Rule 3.10 sets forth practices
prohibited for attorney-magisterial district judges only. The goal of these changes is to
combine Rules 3.9 and 3.10 into one rule encompassing all limitations on magisterial
district judges.

The issue of limitations on magisterial district judges was under review by the
Committee since at least 2002. The Committee received an inquiry as to whether
attorney-magisterial district judges could also serve as arbitrators, particularly in
arbitration cases where the arbitrators’ fees are paid by the parties. There appeared to
be conflicting interpretations as to whether the prohibition on “receiving any fee or
emolument for performing the duties of an arbitrator”, set forth in former Rule 13,

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The Committee’s Final Report should not be confused with the Official Notes to the
Rules. Also, the Supreme Court of Pennsylvania does not adopt the Committee’s
Official Notes or the content of the explanatory Final Reports.
2
Minor Court Rules Committee Recommendation 5-2008.
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Rules 3.9 and 3.10 are derived from former Rules 13 and 14 respectively, which were
rescinded in light of the Court’s adoption of the new Rules Governing Standards of
Conduct of Magisterial District Judges, effective December 1, 2014.
applied to attorney-magisterial district judges, who were also subject to the additional
prohibited practices set forth in former Rule 14. The Committee noted that 42 Pa.C.S. §
3304(b) prohibited a judge or magisterial district judge from serving as a paid arbitrator,
providing that “[n]o judge or magisterial district judge shall receive any fee or emolument
for performing the duties of an arbitrator.” After consideration of the inquiry, and review
of the relevant rules, statutes, and other authorities, the Committee agreed that
amendments to the rules were advisable to clarify that no magisterial district judge,
including a judge who was also an attorney, may act as an arbitrator for a fee.

The Committee published its initial proposal in 2003, at 33 Pa.B. 745 (February
8, 2003). After receiving comments from various sources, the Committee reworked the
proposal, and subsequently tabled it while other groups attempted to achieve a
legislative solution to the question. In the absence of a legislative solution, the
Committee republished the proposal at 37 Pa.B. 6902 (December 29, 2007), and
received additional valuable input. The Committee submitted a recommendation to the
Pennsylvania Supreme Court (“Court”) in 2008, but was instructed by the Court to
engage in further review. After further drafting efforts, the proposal was published for
public comment at 43 Pa.B. 2269 (April 27, 2013), and resubmitted to the Court later
that year. Following the Court’s adoption of the new Rules Governing Standards of
Conduct of Magisterial District Judges, effective December 1, 2014, the Committee
revised the recommendation to reflect the new Conduct Rules, as well as to make
further modifications. Subsequently, the Court directed the Committee to revisit the
recommendation, and the Committee undertook further efforts to revise the rules
consistent with the Court’s guidance.

II. Proposed Rule Changes

A. Rule 3.9

Rule 3.9, titled “Incompatible Practices”, set forth prohibitions applicable to all
magisterial district judges. The Committee recommended rescinding Rule 3.9 and
incorporating its provisions into Rule 3.10 as the simplest way to ensure that all
magisterial district judges, both attorneys and non-attorneys, are following the same
guidelines for incompatible practices and limitations. The substantive material of Rule
3.9, with modification, is found in Rule 3.10. A note was added to Rule 3.9, directing
readers to Rule 3.10.

B. Rule 3.10

The prior version of Rule 3.10, titled, “Prohibited Practice of Attorney-Magisterial
District Judges”, set forth those limitations applicable only to attorney-magisterial district
judges. As explained above, the Committee’s goals in redrafting Rules 3.9 and 3.10
were to clarify the limitations on all judges, as well as to remove the distinction between

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attorney and non-attorney judges. The rule has been retitled “Incompatible Practices
and Limitations.”

Paragraphs (A) and (B) of Rule 3.10 are taken from the first two sentences of
rescinded Rule 3.9A. Paragraph (C) is derived from paragraph B of rescinded Rule 3.9.
Paragraph (D) of Rule 3.10 is derived from the last sentence of rescinded Rule 3.9A,
and explicitly provides that a magisterial district judge shall not receive any fee or
emolument for performing the duties of an arbitrator or mediator. Paragraphs (E)-(F)
pertain to the conduct of attorney magisterial district judges.

While 42 Pa.C.S. § 3304(b) and rescinded Rule 3.9 solely reference “arbitration,”
amended Rule 3.10 references both arbitration and mediation, which reflects the growth
in the use of alternative dispute resolution methods since the original promulgation of
the statute and the rule. Moreover, there should not be a distinction between a
magisterial district judge serving as an arbitrator or a mediator for a fee.

Finally, application of the prohibitions to “all employees assigned to or appointed
by magisterial district judges”, as set forth in former Rule 3.9, has been deleted. These
rules apply to the conduct of magisterial district judges, and prohibitions on the activities
of court employees are addressed as part of the terms and conditions of employment
for those persons rather than appearing in the Rules Governing Standards of Conduct
of Magisterial District Judges. As set forth in the Application provision of the Rules
Governing Standards of Conduct of Magisterial District Judges, the definition of
magisterial district judge contains the following footnote pertaining to court employees:

Though not covered by these Conduct Rules, there is a Code of Conduct
for Employees of the Unified Judicial System (“Employee Code”). It
applies to “employees” defined as, “Employees of the Unified Judicial
System” and includes 1) all state-level court employees, and 2) all county-
level court employees who are under the supervision and authority of the
President Judge of a Judicial District of Pennsylvania, unless otherwise
indicated by Supreme Court order or rule.

See Rules Governing Standards of Conduct of Magisterial District Judges, Application
[2], n.1.

C. Rules 3.11 and 3.12

Rule 3.11(B) is amended to delete the reference to rescinded Rule 3.9. Similarly,
the Comment to Rule 3.12 is amended to delete the reference to rescinded Rule 3.9.

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 D. Rule 323

The Official Note to Rule 323 is amended to replace the reference to rescinded
Rule 3.9 with a reference to Rule 3.10.

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