*1 22 for of all
Since time the claims proper settling at accounting creditors is the audit and the estate,2 this is appeal premature.3 matter
Accordingly, appeal quashed to the Division of the Orphans’ Court remanded of Common Pleas Montgomery County proceed- ad- ings consistent with this and the opinion orderly ministration of the decedent’s estate.
Each own party pay costs. Nix took no Justice the consideration part case. decision 1949, April 18, 1949, 512, Fiduciaries Act of Act of P. L. Art. §§611-623, §§320.611-623, VI, repealed replaced, 20 P.S. aud Act of 1972, 30, 164, 1972). (Supp. §§3381-3393 June No. P.S. Estate, Donsavage 590-91, 112, n.3, In 420 Pa. 218 A. 2d objections (1966), permitted appeal the court n.3 from inventory, however, directing in that the decree case addition rep filing supplemental inventory, personal of a directed the charge (i.e., stock include certain resentative to herself with inventory filing). in the which was stated first Here stock objections inventory were dismissed. Shoyer et al., al., Petitioners, et
Kremer v. Respondents. *3 Before C. J., 1973. January Jones,
Argued Nix and Mander- Pomeroy, Roberts, Eagen, O’Brien, JJ. INO, re-
reargument fused 1973. August 13,
I. Raymond Kremer, for peti- propria persona, tioners.
James D. for Orawford, Kendall respondent, Judge If . Shoyer, and Michael Franck, propria persona, also for William P. respondent, Stewart.
Opinion Mr. Justice O’Brien, 1973: July 2, Michael Respondents Franck and P. William Stew- art are special counsel in- conducting judicial special vestigation by order of Common Pleas of Philadelphia Franck and County. Stewart responsi- for ble formulation charges unethical conduct where the reveals the investigation need therefor, the formal prosecution charges. Respondent is a Shoyer judge assigned by President Judge the Court Common Pleas of Philadelphia hear and testimony presented by review the special counsel for *4 of determining whether formal purpose of charges be unethical conduct should brought. of the judicial
In the course special investigation, and to began inquire Franck Stewart into the activities X-l and X-2, identified in attorneys of a confidential of of the Censors of the Committee report Philadelphia Bar of ethical as tbe Association violators probable in- Pursuant to solicitation. proscription against a client of was sub- X-l, vestigation, Eugene Frohlich, Froh- X-l to before the court. advised poenaed appear at- lich an by should be represented he, Frohlich, X-l offered to pay at this court and torney appearance representa- Frohlich with such attorney provide by tion. Frohlich Accordingly, appeared represented being he is Raymond I. who admits attorney Kremer, of coun- X-l. on motion Judge special paid Shoyer, Froh- Kremer attorney sel as Stewart, disqualified from the lich because of the conflict interest arising X-l not Froh- fact that Kremer and being paid by Kremer us for a writ lich. petitioned a writ to compel mandamus prohibition, and/or Kremer Frohlich and peti- court to permit represent until tioned for a all we reached stay proceedings decision. rely heavily
Petitioners DR-5-107 Code upon which states: Responsibility, Professional full with the consent his client after “(A) Except not: shall disclosure, for his services Accept compensation legal “(1) his client. . . .” from one other than that since Frohlich argue Petitioners consented from the acceptance compensation attorney Kremer’s the Code not been under has violated. investigation, Franck contend in that since Frohlich’s Stewart not affected if investigation, X-l, terests can under Kremer to advise investigation, pay he be able silence the might source of only Frohlich, can investigation to which turn. information Conse Jedwabny v. Phila. argue, citing Co., Tr. they quently, A. 2d 252 (1957), the court Pa. should Kremer from representing able prevent Frohlich, “the contend, impropriety appear as respondents for, in Kremer’s impropriety” ance
27 being paid by “seriously impedes while Frohlich., X-l, justice,” permits cir- administration and X-l to disciplinary cumvent the rules. Carpentertown as we & said Coal Coke
However, (1948) Co. v. Pa. 61 Laird, 360 A. 2d 430 : 94, 102, 426, prohibition “The writ is one all other like which, prerogative only great is used caution writs, extraordinary remedy and forbearance and as an necessity, regular cases of extreme to secure order and ity judicial proceedings ordinary if none of the reme provided by adequate applicable dies law is or to afford right relief. It ais writ which is not of absolute but largely in rests the sound discretion of the court.” Applying spelled Carpenter standard out supra, prohibi town, we do believe that a writ appropriate tion would be in the instant case. Since the examination of Frohlich must be confined to a determination of Frohlich whether, had been fact, “unethically solicited”, need not fear an questions. Preventing swer receiving such him from attorney paid from an the attor ney investigation under does not create situation of necessity” justify “extreme so as to the issuance of a prohibition.1 writ of petitioner’s
for As request alternative for a writ frequently we mandamus, as have “. stated: . . man- legal damus right lies where there is a clear in the plaintiff corresponding duty in the defendant, requested discretionary only the act is not but minis- . . terial, [but] . mandamus will not lie control an 1 questioning fields, If the were branch out into other so Frohlieh’s answers could threaten him with the institution against charges against him for acts fraud com insurance contend, petitioners pany, repre as then the denial of his choice, regardless pay sentation of his of who was ing attorney, might us lead to a different conclusion. official where judgment discretion
official’s
in orig
discretionary power.” (Emphasis
vested with
Pa. 442, 448,
Philadelphia,
v.
Garratt
inal.)
Valley
Martin v. Garnet
also
A.
See
738,
2d
A.
(1971);
2d 913
502,
441 Pa.
District,
School
Petition by Pomeroy Opinion Concurring : Mr. Justice of filed herein I in the denial the petition concur “for of prohibition”. My of writ writ mandamus and/or from brother by my differ those reasons, however, given In I am an action a satisfied that word, O’Brien. lie in a of but that sort,1 mandamus does situation on treated the dissenters—I subject by the merits—a was entirely am that lower court correct convinced from Kremer further disqualifying petitioner repre- Erohlich. sentation petitioner lies, agree Although I am of that mandamus that the view properly prohibition The is denied. difference between the two taken, first that a certain action be taken or not is that the orders jurisdiction of inferior to act the latter orders court while jurisdiction altogether. The because it lacks in the matter further (of Philadelphia respondent Pleas Common which jurisdiction judge) sitting Shoyeb has conduct investi County, gations of the that of members bar of into the conduct 81, 101, Proceedings, Pa. 184 A. Disbarment In Re [Disciplinary] (“These Sup. (1936) ; 17-25 Rules Rule Pa. Ct. judicial any investigation apply special in existence shall not Rules, adoption . . of these which . shall the time at procedure for conduct of such established under concluded prohibition investigation”), it follow that writ would reason, properly be, denied. that would Proper Remedy
T. Mandamus ais remedy bearing problem ap- on The facts would pear to be as follows:2 Court Common Pleas by Judge Philadelphia, order its President investigation has undertaken an of certain Jamieson, alleged practices unethical committed members City. attorneys, respondents Bar of Mich- Two Esquire, Esquire, ael P. Franck, Stewart, William special appointed have been in the con- counsel to aid investigation. duct Witnesses to be examined proceeding brought by subpoena judge are before a questioned parte of the court and ex manner special counsel. witnesses, These some of whom attorneys investigation, are former clients of the under bring during often them counsel render advice In examination. the matter now before us, investigation. X-l is under Petitioner Frohlich had represented by been plaintiff X-l when Frohlich was *7 by in an automobile accident and case, was contacted special Immediately the counsel. after an interview investigator, telephoned with an Frohlich his former attorney X-l and him informed of the interview and of subpoenaed the fact that he, Frohlich, had been and appear Judge Shoyer was to before on November 3, Attorney 1972. X-l advised Frohlich that he should lawyer appeared have judge a when he before the and telephone Raymond that to that end should I. Kremer, Esquire, at a such-and-such number the next morn- ing. Frohlich did and so, was told Mr. Kremer’s sec- retary expecting that Mr. Kremer had been his call and give that call appointment. she would back and him an procedural establishing There difficulties the exact My summary largely text at note 6 infra. facts. See is taken from hearing respondent Judge held before the notes the Shoves during testimony which on November was received as to how represented by Raymond Kremer, Esquire. came be I. X-l and called attorney day again that Frohlich later necessary. him of a were the services asked why advantageous, be would him that counsel X-l assured Kremer. of Mr. the fee pay and that would X-l, he, and requested Frohlich back called Kremer’s secretary November a.m., office at 9:30 be in him to the attorney’s in Mr. Kremer’s The two met the 3rd, hearing. day before examination to the office later proceeded disqualified at which time Kremer Judge Shoyer, representation from further order the court Kremer Frohlich in proceeding. the investigatory to that he had prior the at the hearing told court rep- a fee for his been X-l as paid by attorney day $350 resentation Frohlich. essentially Court
Petitioners’ this states pleading mandamus; a cause of it requests action Judge enter order respondent compelling Frohlich to Shoyer permit petitioner-witness of his counsel any examined with assistance and, per- choice because Frohlich’s choice is Kremer, Kremer to Frohlich.® represent mit
The writ mandamus was one preroga- high Bench. King’s said, tive writs of the As we have often of a act it “lies ministerial compel performance there clear where duty legal right mandatory in the duty corresponding defendant, the plaintiff, other and adequate any appropriate remedy.” want Teter, 326, 330, Travis v. 370 Pa. 87 A. 2d requests negative, i.e., their relief state Petitioners judge interfering they respondent be restrained from ask petitioner petitioner Kremer’s Frohlich. The only. is semantical *8 difference unnecessary respondents is it Franck and I note also petitioners parties proceeding. to this If to are en- be Stewart against Judge Shoyer, prevail in an action mandamus titled to against obviously relief be needed or warranted no would then respondents, are officers of who lesser the Court. other two these
31
Martin
School
441
District,
See also
v. Garnet Valley
Pa.
Assuming moment are petitioners correct in their claim that Frohlich has clear4 legal to have Kremer right him and represent that Judge Shoykk has a legal duty respect that then the right, only block that stumbling might remain to establish of a ment cause action in mandamus would be the requirement there exist no other adequate legal of no remedy. know, however, procedure whereby either neither of whom petitioner, is a party any judicial ongoing could proceeding, otherwise obtain review order Kremer. In disqualifying short, here is not asserted made unclear the need for interpretation of a statute or the prin announcement a new ciple review, If there no of law. other means of then novel questions must be and are actions for decided mandamus. Booz Reed, A. 2d 170 v. Pa. *9 32 the existence of tbe think right alleged,
given the remedy.5 mandamus is Not For Decision
II. This Action Is Ripe an action original jurisdiction This Court has over juris- in of inferior mandamus a court against brought Const, 1970, Act of 31, diction. Pa. art. Y, §2; July P. L. of 1970, The Court Jurisdiction Act Appellate No. 17 P.S. II, §201, (Supp. art. 673, 223, §211.201 at law, in an action 1973-74). An action mandamus is governed by Pennsylvania the of which is procedure Rule 1091 provides Rules Civil Procedure 1091-1099. in this provided chapter, as otherwise “[ejxcept be in the in the of mandamus shall action procedure to the action of as- accordance the rules relating with the methods Those establish rules, course, sumpsit”. affirmative defenses answering, alleging pleading, on for moving judgment plead- matter, replying, new etc. summary judgment, ings, The action mandamus is before present original and other following pleadings through Court 5 Appeals The United States Court the Third Circuit (3d 1973), Schlesinger Teitelbaum, F. 2d v. 475 137 Cir. entertained foUowing Schlesinger, petition on the facts. for writ mandamus a by judge attorney, an had been limited order Dis United for the Western District of Penn of the States trict attorney’s sylvania fee consistent with fee schedule to an eases, approved court seamen’s fee lower than the district Schlesinger client, negotiated and his a seaman. between against brought Schlesinger in mandamus the federal an action Circuit, court, judge Third and that while in the court district mandamus, proceeding propriety held that disputing not power lower court had because the issue would the writ all now at bar seems me to be on fours case The it did. act as Schlesinger. Holder, 104, Schlagenhauf U.S. 13 Ed. 152 v. L. 2d also See Co., Buy Leather 1 L. Ed. 2d ; v. Howes U.S. (1964) La Supervisory Advisory Note, generally Manda (1957). See Act, L. 86 Harv. Rev. All Writs Under mus papers petition for which have been filed: a writ of by respondents an answer Franck and mandamus, respondent Judge an answer Stewart, Siioyer, reply to both and various answers,6 exhibits, briefs, support parties’ memoranda and letters in rela- positions. parties stipu- tive have not into a entered lation the facts. Petitioners assert that the record pleading (as does) consists of the *10 it and contend that properly “the facts this matter are set forth and pleaded petitioners’ Replies in the Petition their and to the Answers.” The fact that a is, number however, allegations qualified of material are denied or in the disputed points answers, and the resolution of such require adjudication, would of the merits, either way summary judgment of a motion for or after an evidentiary hearing. No such motion has been made, proceeded hearing and this Court however, has not to a appointed purpose. a master for that It is that while the form clear, therefore, of action by petitioners my proper, selected is in view the matter yet capable disposition not is on the merits. We proper jurisdic original in the of our should, exercise appoint disputed tion, a master to resolve factual issues, Zoning Adjustment, Schubach cf. v. Board Pa. A. ,308 2d 595
III. The Court of Duty Common Pleas Violated No Properly
and the Writ Is Denied The dissenters, address however, themselves to the merits of action. On this basis the facts which 1017(a), reply permissible only Under Pa. K.O.P. is if “the contains matter or answer new a counterclaim.” A counterclaim is permitted mandamus, pleaded. not Pa. R.O.P. and none was any (affirmative defenses, new matter Neither see Pa. R.O.P. 1030) Replies by petitioners It follows asserted. filed placed improperly before this Court. were say undisputed, appear to me to would venture be correctly Judge he no had acted and Shoyeb permit represent legal duty and Kremer to duty permit on no Frohlich to insist duty, In writ Kremer. the absence such notwithstanding that man- mandamus should issue, my proper action here. form of damus is view starting point mat- this The the consideration Responsibility, be code Professional ter must adopted by the Bar and which Association,7 American 205.8 Court. Pa. R.C.P. is the rules embodied parts: like divided into three Gaul, The Code, disciplinary rules. ethical canons, considerations, today The concerned is Canon canon with which we are independent professional 5: “A should exercise judgment on of a client.” The as Canons, behalf Bar states, American Association statements considerations, ethical on “axiomatic norms”.9 “aspirational in character other are said hand, objectives every represent mem- toward which profession There ber of the should strive.” are two *11 here and ethical considerations which relevant interpret 5. to Canon Ethical Considera- which serve lawyer compensated part that “if a tion reads 5-22 may than his he feel client, from a source other a sense (My responsibility to other than client.” someone his 7 Association, Responsi Bar Code Professional American Draft, 1969). bility (Pinal provides: Sup. 17-3, Rule Pa. Ct. which “Grounds also See for by individually Discipline: attorney, an or omissions or in Acts with, person persons, any or which violate other the Code concert Responsibility Association, American Bar the as Professional Pennsylvania, time in effect shall constitute mis to from time grounds discipline, for whether or not the be and shall conduct attorney-client in the course of occurred rela or omission act tionship.” Responsibility (Pinal Draft, 1969) of Professional ABA Code Statement). (Preliminary Ethical
emphasis.) Consideration 5-23 cautions that . rep- . . that furnishes person lawyers pays “[a] resent to exert possesses strong others potential power pressures the those against independent judgment lawyers.” the the rules are said disciplinary by Lastly, A.B.A. to be in character. The “mandatory Disciplinary Rules the minimum state level conduct below which no can lawyer without subject disciplinary being fall action” (My emphasis.)
Petitioner Kremer points out that Ms conduct matter is not barred the terms of Rule by Disciplinary 5-107 ar- (A)10 because Frohlich Kremer’s knew rangement X-l and consented to it. that agree such consent is indicated but add that record, it is not surprising Disciplinary Rules, minimum standards have not acceptable Bar, been drafted condemn in terms the specific highly unusual situation presented here.
It is to bear in mind not important that attor- only ney X-l, under lawyer investigation, agreed pay for legal services rendered but also Kremer, that X-l in fact to Mr. suggested he should have a at laAvyer present the investigation and recommended that Kremer be the so lawyer employed. The initial choice of Kremer as Froh- laAvyer lich but that of Frohlich’s, X-l, and X-l’s for the undertaking pay services was coupled with of Kremer engagement as the lawyer. It should noted DR 5-107(a), supra, does not deal with the of selection question it deals counsel; only Avith pay- Avoiding “DR 5-107 Others Than the Influence Client. “(A) Except with the consent of his client after full dis- closure, shall not: *12 Accept “(1) compensation legal for his services from one other than his client. Accept “(2) anything from one other than his client of value employment by related his of or his his client.” with along Frohlich went The fact that
ment. from court question- surely prevent does selection cir- all the it under rule against its propriety ing aof I no know of constitutional cumstances. for misconduct investigation possible under lawyer with investigation, in the a witness client, his invest he and whom choosing pays. of his another own lawyer is not a here ground In the conduct while short, DR 5-107 (A), under the precise language disbarment conforming me as not strike that it does say must bar”, of our as Jus- ethical standards highest “the at Opinion, post it. Nix describes (See Dissenting tice 41). that one interest: with but
Canon 5 concerns itself Frohlich) receiving “independent (here of the client fact of payment Where the professional judgment”. the posi- is to the client, from third disclosed party the client to be that tion taken DR 5-107 would seem of conflict and will be of the risk sufficiently apprised is on But in this case there at stake will be guard. Frohlich; public than that there is interest other in the con- the need for confidence public interest and unethical judicial duct of this into inquiry practices. In the conduct lawyers judges, dealing it a truism that as as appearances important “justice In the words of the old maxim, facts. actual but should ... be seen to be only done, should not of the Code Professional Responsi- done.”11 Canon 9 lawyer should avoid even bility stipulates “[a] of professional impropriety”. (Empha- the appearcmee X-l the motives of own.)12 While selecting sis my Justices, (1924) (Lord Hewart, 1 K.B. Rex v. Sussex J.).C. Consideration 9-1: “Continuation Ethical See also governed concept are to be we rules of law
American justice people requires have faith that can be obtained public system. promote legal through A should eonfi- our *13 may agreeing pay of Kremer and to for the Mr. services beyond reproach (i.e., may by genuine be be motivated a obligation client), sense of the to the and action of arrangement completely may Mr. Kremer under this independent, gainsaid appearance it cannot be that the relationships good. person are not Where the pays lawyer represent and furnishes another lawyer investigation, is himself a under court and give testimony where the other is in his client called investigation, argument required the no should be appearance impropriety pres- demonstrate that the of is ent. power
“Courts
have
to make
follow
inherent
and
governing
discipline
rules
[the
of
of
bar]
members
the
long
toor
formulate
new rules as
case demands so
right
charged
as no
of the member
... A
invaded.
may
general investigation
unprofes-
court
conduct a
practice
sional
in an
conduct
effort to rid the
of un-
Proceedings,
desirable members. .
.” In re
.
Disbarment
(1936).
Mr. Justice Eagen Opinion Dissenting Roberts: Justice opinion join dissenting Mr. Justice Nix's incorrectly agree majority merits decides that the my con- presented. view, However, the issues *14 necessarily troversy may well be resolved without reaching the merits of the substantive issues.
Respondents, Attorneys Franck and Stewart—coun- special judicial investigation—have no stand- sel for a right represent ing challenge Attorney to to Kremer’s respondents Frohlich. If and advise his Mr. client, by professional impropriety that Mr. Kremer, assert Disciplinary Board has becomes matter for the which investigate power duty to “consider and the the (c) (1) any attorney. of . .” Rule the conduct of . 17-5 Pennsylvania. Supreme In of the of the Rules present respondents not to circumstances entitled investigation attorney by interrupt ongoing of X-l the interposing, their of as a collateral assertion matter, by allegedly improper conduct Mr. Kremer. spondents’ the examination of answers reveals that other witnesses subject expense (as the of medical frauds will
has dealt with future). throughout Petitioner Kremer has the that of objection questions ground on the he no such asserted bases investigation. beyond scope they go of the no reason the see scope majority apparently the of thus limited this have for the inquiry. Court, Opinion suggested of the it is 1 of the footnote In questioning [such as] into to branch out other fields were the “[i]f company, against . insurance . . then the denial fraud acts by regardless choice, the his his might attorney, paying a different lead us to con- of who accuracy my disagreement or note I must clusion.” necessity observation. for this system adversary jurisprudence, In our one liti- reject gant may disqualify person’s or coun- another nothing Manifestly, sel. could be more to the offensive judicial affording integrity proceeding than one party adversary’s lawyer. voice remove his Such controversy—-ifpermitted—could collateral course only delay unnecessarily prim- serve and burden the ary purpose any way proceedings—without advancing legitimate objectives quality its inquiry.
It was an obvious abuse the court discretion respondents’ disqualify to entertain motion to prejudicial disqualifi- Krerner and error to order such cation.
I dissent. joins dissenting opin-
Mr. Justice Mandeeino in this ion.
Dissenting Opinion Me. Nix : Justice majority today The result reached forces me following to dissent for the reasons. proceeding petitioner
At issue is whether *15 a member of the Krerner, bar this Court, should be represent petitioner allowed to Frohlich, client of question during X-l. This arose the course of special judicial investigation when Mr. Frohlich was subpoenaed testify respect personal to to a certain injury case in X-l had which served as his counsel. appeared When Mr. Frohlich before the court with Mr. attorney, Krerner disqualified as his Mr. Krerner was by ground order of the on Court that there was a conflict interest due to the fact that Mr. Krerner was being paid by X-l and Mr. Frohlich. right
At the outset, note that Mr. Frohlich’s to counsel his choice is not at issue. In their answer petition respondents specifically to the admit: “No suggested one may has that Petitioner Frohlich not 40 The below of Ms choice. Order counsel
represented by from being rep to Petitioner seeks prohibit choice.” (Emphasis resented counsel by X[-l]’s on Frohlich’s attack any petitioner original.)1 Indeed, be ineffectual. The sanc to counsel retain would right crim civil and counsel in both to retain tity right 287 Alabama, inal Powell v. recognized cases was 45 Supreme explicitly U.S. where (1932),2 a state “If civil or case, criminal, stated that: any refuse hear arbitrarily court were to federal for him, by and by counsel, appearing party employed a refusal it be doubted that such may not reasonably of due therefore, be a denial of a hearing, and, would at 69. sense.” 287 U.S. the constitutional process ana in an has observed this Court Similarly, recently counsel of one’s situation that logous “[t]he in because particularly significant own choosing criminal great dividual sanctions should have facing Pa. confidence his Moore v. 451 attorney.” Jamieson, 306 A. 2d 288 See Com 299, 283, 307-08, 263 A. monwealth v. 437 Pa. Velasquez, 262, 265, ex 2d 353-54 Commonwealth rel. Good 351, (1970); A. 448 Rundle, 446, v. Pa. 2d 528, 533, fellow Later: (1964) ; Betts v. Years Kamisar, Brady Twenty The Counsel and Due Process Mich. Values, Right 16, below, November which Order court dated disqualified representing Frohlich, provides: Mr. Kremer from preclude [X] is not to be construed Messrs. “This Order Court, rights advising subpoenaed of their [Y] from clients represented by choosing re their if such client’s to be counsel of added.) (Emphasis quest them.” advice from Alabama, provide v. In Powell it was held failure process capital due clause in a case violated the effective counsel in such was amendment. It determined of the fourteenth encompassed those within the aid of counsel circumstances Uberty justice guaranteed principles fundamental *16 process requirement law. of due constitutional (1962); Right Sympo- L. A Rev. 219 to Counsel: 45 Minn. sium, L. Rev. 693 recognize right that an individual’s to counsel of particularly light choice
his is not absolute, establishing state’s interest standards control the practice of law its In the courts. instant we case, conflicting right have as interests Mr. Frohlich right to retain Mr. Kremer as his and the discipline lawyers prevent state unethical and unprofessional balancing conflicting conduct. In these I must interests, conclude that the state’s interest assuring legal system that the administration of its properly sufficiently compelling controlled is not in- justify degree infringement (i.e., terest to dis- qualification attorney) imposed upon of his Mr. Froh- lich’s to counsel. alleged petitioner it is
Here, Kremer should be disqualified arrangement whereby because of the X-l referred Mr. Frohlich to Mr. Kremer and undertook to pay Mr. fee. Kremer’s It is averred that this situation necessarily gives rise a conflict of interest viola- Responsibility. tion of the Code Professional How- my petitioner it is ever, belief that Kremer has adhered highest to the ethical of our standards bar. Disciplinary Rule 5-107 the American Bar Asso- Responsibility, ciation’s Code of Professional the stand- applicable provides ard to the instant case, as follows: By Avoiding
“D.R. 5-107 Influence Others Than the Client “(A) Except with the consent his cUent after disclosure, shall not:
full
“(1) Accept compensation legal for his services from one other than his client.
“(2) Accept any- from one other than his client thing of value related to his of or his employment his client. *17 person permit who
“(B) lawyer a not A shall legal pays ser- employs, render him to or recommends, professional regulate his or to direct for another vices (Emphasis legal rendering judgment services.” such disputed made added.) Kremer that Mr. It is of the voluntary Frohlich Mr. full and disclosure arrangement. payment of referral and the method cognizant fully also Mr. was Moreover, N-l possible he and between that could arise conflicts Subsequent represent him. Kremer to he chose Mr. when retaining Frohlich has stated Mr. Mr. Kremer, to his ability complete and ethics in the faith that he has fully the satisfied with he is Mr. Kremer and that by his legal offered and the advice rendered services attorney. present any suggestion before us fails to sustain record inadequate or inefficient Frohlich received
that Mr. or that the method from Mr. Kremer way any his influenced he retained has which was Notwithstanding handling absence of this case. complete vol- and Mi*.Kremer’s actual misconduct untary arrangement explanation Mr. the entire respondents below maintain that the court Frohlich, disqualifying acting its discretion within impropriety” appearance of Kremer because “even ap- my a subtle be view, cannot tolerated. However, sufficiently compelling pearance impropriety is not a representing disqualify from reason fully possible of all conflicts of client who is aware pertinently Ethical Consid- stated interest. As applicable “In 9:3 order to avoid mis- erations to Canon understandings confidence, and hence to maintain fully promptly lawyer inform client his should being developments handled in the matters of material Appearance Lawyer Even the of Professional “A Should. Avoid Responsibility Impropriety”, ABA No. 9. Canons of Professional against guard the client. While a should proper tendency otherwise conduct that has a to dim- public system inish legal confidence in or in legal profession, duty public Ms to clients or to the should merely never be subordinate dis- because full charge obligation may may his misunderstood subject tend to legal profession him or the to criticism (Emphasis added.) Ethical ABA Consideration 9-2, Responsibility Canons Professional No. 9. my
In public legal estimation, confidence in our system only attempt will be eroded where there is no *18 potentially conflicting disclose Mr. interests. Here, voluntary Kremer up- virtue of his disclosures has integrity profession held the of his has and, fact, proper judgment competently safeguarding exercised the interests of his Mr. he client, to whom Frohlich, duty. Having owes a solemn found no conduct that arrangements would warrant conclusion that the be- tween improperly counsel and client fact have influ- handling enced counsel’s case, believe dis- qualification completely arbitrary counsel was constitutes an unreasonable and intolerable burden on the constitutional to counsel of one’s choice. I would reverse the order of the court below dis- qualifying Kremer as for Mr. Frohlich. Philadelphia Marine Trade Association v. Inter Longshoremen’s
national Association et al.,
Appellants.