Ignelzi v. Ogg, Cordes, Murphy & Ignelzi, LLP

CONCURRING STATEMENT BY

MUNDY, J.:

I agree that the trial court’s July 25, 2012 inspection order, entered pursuant to 15 Pa.C.S.A. § 8332, is appealable. I further agree with the affirmance of the trial court’s order relative to inspection of OCMI’s partnership books as described in paragraphs eight and nine of Ignelzi’s petition. Additionally, I agree with the Majority that the trial court erred in its order directing an accounting of post-dissolution contingent fees based on whether or not an agreement existed. Specifically, I agree with the Majority that, “[t]he proper course of action would have been to permit the parties to litigate this issue, and then, if necessary, issue an order compelling an *1120accounting.” Majority Opinion at 1119. Accordingly, I join those portions of the Majority opinion.

I write separately to distance myself from the Majority’s discussion distinguishing the instant case from the case of Huber v. Etkin, 58 A.3d 772 (Pa.Super.2012) (en banc), appeal denied, 68 A.3d 909 (Pa.2013), on the basis that Ignelzi departed the partnership to ascend to the bench and is a current sitting trial judge. I deem this discussion dicta and unnecessary to our disposition of this appeal.

Further, I am skeptical that Pennsylvania Rule of Professional Conduct 5.4 provides a basis for distinguishing Huber’s application if the trial court determines no agreement, express or by course of conduct, exists in this case, or provides a basis to alter any agreement found by the trial court to exist. Rule 5.4 addresses fee sharing, which is a form of case specific compensation for consideration, and not the division of a dissolved partnership’s equity, which includes unrealized contingent fees, among the former partners. Similarly, the Ethics Committee, Informal Opinion 6/17a/10, cited by the Majority addresses receipt of a commission by a judge and not the division of a partnership’s equity, and is therefore inapt.1

Accordingly, I do not join the portion of the Majority Opinion addressing the potential impact of Rule 5.4 on the trial court’s determinations on remand. As I deem said discussion dicta, I concur in the Majority’s disposition of this appeal.

. I do not contend that reference to rules of professional conduct is, as a general proposition, unwarranted. However, unlike my position expressed in Huber, such reference is unnecessary here, where the possible existence and terms of any agreement has yet to be determined. See Huber, supra at 783-785 (Mundy, J., dissenting). Further, the Majority’s interpretation of Rule 5.4 creates implications in circumstances where a partner in a law practice retires, or allows his professional license to lapse for health or personal reasons. In each instance, is the former partner precluded from sharing in the equity of the partner's former firm generated from contingent fees because the departing partner cannot practice law? Is a departing partner's claim to a share of his partnership's assets to be contingent on his or her continued practice of law? Additionally, the Uniform Partnership Act references a winding up period to complete partnership affairs. 15 Pa.C.S.A. § 8352. Is that provision obviated relative to contingent fees based on the practicing status of the former law partner?