*1 498 Meth, v. officers and directors. Bermann
paid corporate to 521, 88, 90, (1969). 522 On the facts 258 A.2d 436 Pa. case, prove require appellants I instant would during them fringe received the salaries and benefits Placing were not excessive. sixteen-year period question simplify the appellants on the would proof the burden testamentary intent of effectuating task Chancellor’s share, meaningful way, in a appellee father that appellee’s corporate profits. in the majority opinion. I respects, join
In all other LARSEN, Justice, dissenting. re- finding “profits” The lower court’s
I dissent. into consid- computed taking without ferred to a sum be sons is any managing supported eration salaries af- court’s order should be and hence the lower evidence firmed. J.,
McDERMOTT, dissenting opinion. in this joins A.2d 1051 PHILADELPHIA, Appellant, CITY OF 33, AMERICAN FEDERATION OF COUNCIL DISTRICT EMPLOYEES, STATE, AFL- AND MUNICIPAL COUNTY Litem, Stout, STOUT, CIO, by Ad and Earl Earl as Trustee Johnson, Harry Tilghman, George Dargan, Leonard Albert Williams, Wroten, Williams, Simpkins, Edward Edward Earl Rooney, Munici Trustees of District Council 33 and Francis Fund, Appellees. pal and Welfare Workers Health Pennsylvania.
Supreme Court Argued 1983. Oct. Dec. Decided *2 Sol., Philadelphia, appel- for Deputy City M. Myers, John lant.
Richard,A. Wasser, Levinson, D. Nancy Hillel S. Sprague, appellees. Philadelphia, FLAHERTY, C.J., NIX, LARSEN, ROBERTS, and
Before ZAPPALA, JJ. McDERMOTT, INSON HUTCH OPINION ZAPPALA, Justice. a collective dispute arising out of
This case concerns District plaintiff-appellee, agreement between bargaining State, Mu- County and Federation of American Council (union) defendant-appellant, nicipal employees union filed suit the Court Philadelphia (city). city Philadelphia, seeking compel Pleas of Common into agreement due under the allegedly funds pay certain *3 repre- The union was and welfare fund. the union’s health firm, Levinson, Esquire, Sprague and his Hillel S. sented disqualify filed a motion to city The and Rubenstone. interest, of a conflict of and his firm on the basis Levinson Levinson, of the had managing city, as director in that bargaining in the collective city negotiating represented The Superior denied the motion. The court agreement. granted for review. We petition the city’s denied Court appeal. for allowance petition have no jurisdiction, The union contends that we reject We interlocutory unappealable. the matter taken appeal may An interlocutory that contention. Further Procedure 1311. Appellate Rule of permission, more, plenary jurisdic to assume power has the this Court an of immedi involving matter issue stage at tion Downs, Pa. 425 See Silver public importance. ate (1981). A.2d 359 Grab, city’s employee and William
Levinson hear- evidentiary during testified personnel department, The record establish- disqualification. ing on the motion es that Levinson was the Managing Director of the city (N.T. 5). from 1972 to 1980 One of his duties as Managing (N.T. Director was signatory 18). for the city In this capacity, Levinson executed the collective bargaining agree- negotiated ment between the city and union for the 1975- 1976 contract year. Although Levinson initially testified that he did not participate negotiations labor culmi- nating agreement, he later indicated he was fact (N.T. involved in the negotiations 7, 70). Levinson stated his involvement at the negotiating limited, table was how- ever, to matters affecting the daily operation of depart- ments which he supervised. Levinson testified that Lennox Moak, the city’s director, financial negotiations handled the involving (N.T. 86). health benefits
Prior to the initial negotiating session between the city and union regarding the agreement, 1975-1976 labor president union’s forwarded a copy of the propos- contract als to Levinson and the mayor. A memorandum by Jack Soloff, the city’s consultant, labor was subsequently circu- lated to four officials, city Levinson, including stating that the union’s contract proposals would be submitted formally and explained at the first negotiating session. propos- als included an increase union members’ monthly health and welfare benefits. Levinson’s recollection at the hearing was that he did not discuss the health and welfare provision anyone in the union and that he had no active role in negotiations involving provision (N.T. 17).
Handwritten notes made by Levinson during the negotia- tions, and numerous documents from negotiations, in- cluding cost projections proposals, received, which he had *4 were submitted into evidence. entitled, One document “NE- GOTIATIONS BETWEEN CITY OF PHILADELPHIA AND DISTRICT COUNCIL 33” listed contract proposals, including proposals involving health and benefits, welfare which were submitted in various bargaining sessions. No- tations related to proposals the in Levinson’s handwriting appeared on the document. Levinson could only speculate as to the source of his information from which his notes however, 54). that he was (N.T. apparent, It is made were negotiations of the progress of the continually aware conversations through and participation his active through personnel Soloff, Taylor, city’s Moak, and'Lew director. nego- contract in the 1975-1976 participated Grab
William to the director and personnel to the as “staff tiations 92). present during (N.T. Grab was team” negotiating held with meetings were and testified negotiations (N.T. 93). further Grab negotiations to prior Levinson . when negotiations head that Levinson would testified illness, and and that Levinson due to absent Soloff was (N.T. other times responsibility at share the would Soloff 93-4). of Professional by the Code governed
This case is Rule 9- Disciplinary by specifically Responsibility 101(B), states which in a private employment accept shall not lawyer
“A he responsibility while he had substantial matter which employee.” public was a 9-3, states that which Ethical Consideration or other office judicial leaves lawyer
“After a in connec- accept employment he should employment, responsi- he had substantial matter which tion with accept employment leaving, his since bility prior even if none impropriety appearance give would exists.” attorney the interest the risk that significant
There is a
the interest
conflict with
counsel will
private
represents
Such
public employee.
as a
represented
that he or she
or
impropriety
results
conflict
potential
or
conflict
disquali-
is a basis for
impropriety,
appearance
a number
This is illustrated
attorney.
fication
York, 501
New
Corp.
Motors
cases. General
who, while
CIR.1974)
attorney
(2d
involved
F.2d 639
in an
Department, participated
the Justice
employed by
manufacturer,
signing
a bus
against
anti-trust case
*5
in
complaint
having
and
responsibility
substantial
the inves
and
The
tigatory
preparatory stages.
attorney
disqual
was
ified
York
representing
City
from
New
in a
action
class
suit
against
alleging
the manufacturer
a nationwide bus monop
oly.
Commonwealth v. Eastern Dawn Mobile Home
Park, Inc.,
326,
(1979),
486 Pa.
The “appearance is an impropriety” amorphous con- cept. The in the public interest ethical administration of justice protected by this concept is fairly served defining without the perimeters of the conduct which give will appearance of impropriety. concept should not be to satisfy used a subjective conscience affronted the representation particular in a counsel matter. There- opinion equally 1. The of the Court was divided.
fore, di- managing the mere facts Levinson was that he rector of the is now member city in an representing against city, law firm a client action *6 him or firm in the disqualify will not sufficient to his law be do not create an appear- union’s action. Those facts alone impropriety. ance of reasonably by establishing
The interest is served trial court in consideration of guide criteria to a its objective The criteria need not disqualification. a motion for be the factual circum- satisfy purpose. inflexible to this Under case, Levinson, in capacity find that his stances of this we director, in the responsibility as had substantial managing process agreement which resulted the labor negotiation in the action. dispute underlying is involved the 1975- position managing during Levinson’s as director actual involvement in the year, negotiation 1976 contract his knowledge and his of process city, personal on behalf of the contract and of the deci- negotiations proposals, officials, and its all relevant sion-making process by city action, in the presented underlying preclude to the issue firm of the union Levinson or the law representation which he is a member. has no recollection of the present
Levinson’s claim that he negotiations officials or the re- among city conversations clause is not relevant to our the health benefits garding he and his firm should determination of whether law be the union in representing particular from this disqualified Levinson will to use the action.2 Whether or not be able during the to the knowledge acquired negotiations which he immaterial' this has advantage union’s because Court damage or actual for required showing potential never Levinson, finding managing disqualification. Our responsibility negoti- had city, director of the substantial agreement on which this ating bargaining the collective firm require that he and his action is based is sufficient disqualified. be parties’ dispute, the trial court will be to resolve the In order agreement, just required the health benefits to review the entire clause. the Superior Order of Court is reversed and Hillel
Levinson and the firm of and Sprague Rubenstone are disqualified representing from the union in this case.
McDERMOTT, J., filed concurring dissenting and opin- ion.
NIX, J., opinion. filed a dissenting HUTCHINSON, J., dissenting opinion. filed a McDERMOTT,Justice, concurring dissenting. This case raises two distinct issues: whether Mr. Levin- son’s law firm as a whole should disqualified be from representing against District Council 33 an action Philadelphia, Mr. Levinson should whether from disqualified participation litigation. agree
I would with Mr. Nix that the firm’s repre- Justice *7 sentation of the union in this does not litigation implicate the type appearance impropriety requires its if, disqualification evidentiary hearing, after a further it is found that Mr. Levinson has not in participated litiga- the However, I part tion thus far. concur with that majority’s opinion holding that Mr. Levinson himself should 1 from in disqualified any litigation be involvement the even though the action in is not a contract controversy over negotiated.2 which Levinson signifi-
Since the construction of that will the language be in litigation, appearance cant issue the there would be an if in impropriety any Mr. Levinson was involved in way in litigating language the a contract which he once played in significant negotiating. appearance impro- role The priety disappear would with Mr. Levinson out of the picture, agree majority properly 1. I also with the that this case is within our issue, jurisdiction. Considering important public the nature of this may plenary jurisdiction. this Court Further, exercise its 42 § Pa.C.S.A. 726. interlocutory appeal may by permission taken under 42 be 702(b), Pa.R.App.P. Pa.C.S.A. § dispute negotiated 2. The contract which is in was in 1982 after Mr. However, language controversy Levinson left office. the is identi- language negotiated by cal to in a contract which was Mr. Levinson continuity virtue of a clause in the contract. 1982 506
and the union would not be prejudiced by having to seek new counsel.
Further, Mr.
carefully
Levinson should be
shielded from
any
in the
participation
matter. This means that he be
documents,
denied access to all relevant files and related
he
receiving
be excluded from
fees
derived from
case,
attorneys
the firm refrain from discussing
litigation
in his
and that he not
presence,
disclose any
information
regarding
negotiations of 1975 to members
of his
firm.
433,
law
See
v.
625 F.2d
Armstrong McAlpin,
(2d Cir.1980),
442-443
vac. on other grounds, McAlpin v.
1106,
449
101
Armstrong,
U.S.
S.Ct.
from
cases which
a role
they played
govern
while
ment has
used
previously.
been
Kesselhaut v. United
States,
(1977),
555
214
124
F.2d
Ct.Cl.
the law firm of a
general
former
counsel of the Federal Housing Administra
tion
not disqualified
brought against
was
from a case
firm; rather,
FHA by the
he was screened from participa
tion in
litigation
and would not collect any fees derived
from the case. The
stated that
Court
“inexorable
firm
disqualification
disqualification
of an entire
for the
associate,
single
entirely
member or
too harsh and should
mitigated by appropriate screening....”
id. 555 F.2d at
also,
793. See
Armstrong McAlpin, supra.,
Kadish v.
Commission,
Futures
Commodity
Trading
F.Supp.
(N.D.Ill.1982);
Milk
Co-Op
Central
Producers
v. Sen
Stores, Inc.,
(8th Cir.1978).
try Food
A shall not in a lawyer accept private employment matter in he responsibility had substantial while he was a public employee.
Ethical provides: Consideration 9-3 further
After a other lawyer judicial public leaves office or em- he should not in ployment, accept employment connection in matter which he had substantial responsibility prior leaving, to his since to accept employment would give appearance if impropriety even none exists. language The clear of the Rule and the Ethical Considera- uses the “lawyer,” tion word and does not mandate that the firm lawyer, law who had a in substantial role a matter a in public employee, disqualified while case. The every 9-101(B) extension DR proposed by majority goes too A per requiring far. se rule the disqualification of an entire firm law when individual of that firm lawyer law is disqualified 9-101(B). is not by mandated DR a per Such se litigants, rule is unfair to and is impractical, considering the great degree of interchange lawyers from the public to Rather, private sector. case-by-case analysis is re- quired examine whether an entire firm law need be disqualified any appearance to remove of impropriety under Canon 9. holding of the majority requiring disqualification
of the law firm is also contrary to the inway which Rule 1.11(a) Conduct, of the Model Rules of Professional address- such rule, es a situation. The proposed recently American Bar Association and under consideration this Court, speaks terms of attorneys, individual like DR 9-101(B), provides: 1.11
RULE Successive Government and Em- Private ployment
(a) Except law may expressly permit, otherwise shall not lawyer represent private client connection with a matter in which the lawyer participated person- ally and substantially as a officer or employee, appropriate government unless the agency consents after consultation. lawyer No in a firm with which that lawyer is associated may knowingly undertake or continue representation such a matter unless: (1) disqualified lawyer any partici- screened from pation the matter and is apportioned part no therefrom; fee
(2) given appropriate is to the promptly written notice it compliance to enable to ascertain government agency of this Rule. provisions the I in this rule, urge opinion and the rule proposed the freedom allowing litigant provides a rational balance time, wishes, while, he at the same to choose counsel as of avoiding appearance impropriety. hear-
Thus, proceeding this for further I would remand Mr. Levinson has been involved ings inquire to whether has, if firm should case and he his litigation of this dispel any appearance to of as well in order disqualified hand, Mr. Levinson has not If, on the other impropriety. case, to repre- his firm could continue involved been union, participa- screened from sent the with Mr. Levinson in the case. tion
NIX, Justice, dissenting. Hutchinson we
I with the conclusion Justice agree a review of this uncertified not have entertained should the reasons set forth in substantially interlocutory order Moreover, upon consider the matter if we must his dissent. the exclusion us, justify I find no the record basis before firm to which Mr. Levinson of the law of the members belongs. presently record as to whether Mr. this question
There is serious in the representa- role played has personally Levinson that there in this case. It is conceded appellees tion in any way conflict which would of an actual is no evidence What litigation. in the trial of this appellant prejudice position Mr. former is that Levinson’s being charged creates an Philadelphia Director for Managing offends Cannon 9 of the impropriety appearance if Even we were Responsibility.1 of Professional Code of Canon 9 violation premise accept majority’s record,2 that violation does on this has established been provides: 1. Canon 9 impropriety. appearance lawyer avoid even A should 9-101(B) provides: Disciplinary Rule warrant the creation of a rule per requiring se the automat- *10 disqualification ic firm of law which the violator may member, be a fortuitously without some showing that the continued representation of the firm gives either an un- seemly advantage to side one or an unfair disadvantage to the other.
The underlying litigation involves intricate issues of law hotly questions contested of fact from arising a rela- tionship between parties protracted involves a intertwined set of spans circumstances and a substantial period of time. During much of this period this firm law represented has the appellees and is presently intimately acquainted with the issues of fact and law that must be resolved. At this juncture, to force the withdrawal of counsel and to require one side seek new and unfamiliar representation in the legal heat of the controversy, serious- ly offends the right of a party to have effective counsel of their choice. This is particularly true where the order of removal of counsel is mandated a per se rule and is not dictated by equities of the situation.3
The majority attempts support its creation of this new per se rule of absolute disqualification solely by reliance upon an Opinion in Support of Affirmance in a decision where the Court was equally divided as to the question disqualification of the firm. Commonwealth v. East ern Dawn Park, Inc., Mobile Home 326, 486 Pa. 405 A.2d (1979).4 1232 In that decision I shared the view of those lawyer A accept private should employment not in a matter which he had responsibility substantial while he was a employee. violation, claimed, If there has been an ethical as is it can be adequately handled under our disciplinary rules of enforcement. disposition only 203, Such a appropriate, is not Pa.R.D.E. 201 and but unfairly prejudice would not litigant who way is not responsible any alleged for misconduct. 4. An equally precedent divided Court does not establish for either side Roberts, of the Supreme issue. See Pennsylvania: Court of Action, Constitutional also, Temp.L.Q. (1981). Government 54 403 See 355, Bata v. Central-Penn National Bank Philadelphia, 448 Pa. 373, (1972). 293 A.2d 353 Id., disqualification required, was who determined 1235; at I am still not convinced of Pa. at 405 A.2d we at all cost contrary position. While wisdom we should not perception propriety, must maintain a rules, application thereby of our indulge an overfastidous existed.5 Ac creating previously an unfairness where none Siebert, Bird, al., No. 38 W.D. Allocatur cord, et et al. 4/1/83, Nix, J., McDer (filed dissenting, joined by Dkt. 1983 mott, J.). establishing a today appears upon bent majority
Since rule, appropriate it is to note such se per new requirement of the Model goes beyond far requirement the American proposed by Professional Conduct Rules of adop- under consideration presently Bar Association *11 1.11(a) of It is to be noted that Rule tion this Court.6 and require not the automatic those Model Rules does major- the firm mandated the disqualification of absolute ity. to dissent. compelled
I am therefore HUTCHINSON, Justice, dissenting. that Mr. that this record shows agree majority
I with the D.R. 9- of the Union violates representation Levinson’s Responsibility. Professional How- 101(B) of our Code of Opinion Support in Eastern Dawn stressed that of Reversal 5. The solely upon allegation the disqualification based per absolute se system impropriety an affront to “our adversarial appearance of is Id., A.2d at dispute 486 Pa. at resolution”. 1.11(a) Conduct states: of the Model Rules of Professional 6. Rule Employment and Private Successive Government RULE 1.11 lawyer (a) may expressly permit, shall Except otherwise as law private with a matter in which represent a client in connection substantially lawyer participated personally and as a government agency employee, appropriate unless the officer or lawyer No in a firm with which after consultation. consents repre- may knowingly lawyer undertake or continue is associated a matter unless: sentation in such (1) lawyer any participation in disqualified screened from therefrom; part apportioned no of the fee matter and is govern- (2) promptly given appropriate to the written notice is provi- compliance agency it to ascertain ment to enable of this Rule. sions ever, I majority’s must dissent from the decision to review order interlocutory uncertified Court of Common Pleas of motion to Philadelphia denying City’s disquali- Mr. fy majority’s Levinson. decision serves only further the resolution of the delay merits of this already longstanding dispute City between the its employees meaning over the of the they labor contract entered into. It so, moreover, does without the benefit of a full explication in the trial court of the effect this conflict may have on the litigation. fairness of the Such delay is particularly objec- in disputes involving tionable the meaning of collective bargaining agreements. such a I posture, would refer this matter to our disciplinary procedure and let resolution of the main dispute go forward as promptly as possible.
The City of Philadelphia
alleged
has not
that it is preju-
diced in any way by Mr.
representation
Levinson’s
Union in this litigation. The City’s sole basis for its motion
to disqualify Mr. Levinson is
representation
that his
violates
9-101(B)
Canon 9 and D.R.
of our Code of Professional
Therefore,
Responsibility.
this case is factually distinct
from American
Co. v.
Dredging
Philadelphia, 480
Pa.
(1978).
In a in American Dredging dictum 9’s admonition that that a violation of Canon gest “[a] of Appearance Impropriety” Avoid Lawyer Should Even 9-101(B)’s of of prohibition acceptance private D.R. attorney had sub- matter which an employment employee a dis- require while responsibility stantial and the disagree majority I dictum qualification. adherence to it here.1 governing rules disciplinary
This has established Court system and a of sanctions to enforce lawyers the conduct of of a that a showing In the absence violation those rules. I an party to adverse would prejudicial those rules as a sanction. impose disqualification set of rules for adopted comprehensive This Court has Responsibility. of Professional See enforcing the Code provide rules for investigation Those Pa.R.D.E. 101-219. if a Board to determine Disciplinary and hearings and, so, if the appropriate the Code exists violation of to the resolution procedure adapted That is well sanction. record questions. Our review cold disputed factual court interlocutory appeal where trial on uncertified adapted. issues is not so spoken has not those must, regulate the initially, the trial court some cases it. attorneys practicing before See American conduct Co., supra. responsibility A trial court’s Dredging Code, however, should limited enforcing Disciplinary effect on con- have a demonstrable to violations which so likely prejudicial and are to be litigation duct of the Likewise, opinion in follow Justice O’Brien’s I would decline to support v. Eastern Dawn Mobile affirmance in Commonwealth (1979) Park, holding trial A.2d 1232 that the Home 486 Pa. D.R. properly disqualified counsel because of violation of court 9-101(B).
513 one or more parties to the litigation that appellate review would be ineffective.
I do not
should,
believe that this Court
general rule,
as a
review interlocutory orders denying a party’s motion to
disqualify counsel.
In Firestone Tire and Rubber Co. v.
368,
Risjord,
U.S.
101 S.Ct.
(1981)
Under
the courts of appeals are vested with
“jurisdiction of appeals from all final decisions of the
district courts ... except where a direct
may
review
had
the Supreme Court.” We have
inter-
consistently
preted this language as indicating that a party may not
take an appeal under this section until there has been “a
decision by the District Court that 'ends the litigation on
the merits and leaves nothing for the court to do but
” ____
judgment.’
execute the
rule,
This
that a party
must ordinarily raise all claims of error in a single appeal
following final judgment
merits,
on the
serves a number
of important purposes.
It emphasizes the deference that
appellate courts owe to the trial judge as the individual
initially
upon
called
to decide the many questions of law
and fact that occur in the course of a trial. Permitting
piecemeal appeals would undermine the independence of
the district judge, as well as the special role that individu-
al
plays
judicial
our
system.
addition,
the rule is in
accordance with the
policy
sensible
of “avoiding] the
obstruction
just
claims that would come from permit-
ting the harassment and cost of a succession of separate
appeals from the various
rulings which a litigation may
rise,
give
from its initiation to entry of judgment.”
Id. at
(citations
I would dismiss this A.2d 1371 Pennsylvania COMMONWEALTH BROWN, Appellant. Louis Pennsylvania. Supreme Court 28, 1983. Argued Oct. Dec. Decided