Commonwealth ex rel. Whitling v. Russell

Dissenting Opinion by

Montgomery, J.:

Appellant contends that after he had retained capable counsel for his own defense, his counsel did, without the appellant’s permission and over his protests, represent a codefendant in the trial of his case. A defendant’s desire to have the undivided assistance of counsel of his own choosing should be respected, since the additional burden of representing another party may conceivably impair counsel’s effectiveness.

The general rule is that an attorney is disqualified from representing interests in conflict with each other. This precludes counsel from putting himself in a position where he may be required to choose between conflicting duties, or be led to an attempt to reconcile conflicting interests rather than to enforce, to their full extent, the rights of the party which he should alone represent. 7 C.J.S. Attorney and Client §47. This rule has been recognized by this Court in Pile v. Thompson, 62 Pa. Superior Ct. 400, where in the opinion it stated, at page 404, “It matters not that there was ... no injury done, the rule is not intended to be remedial of actual wrong, but preventive of the possibility of it.”

*285Appellant stated that he intended to testify against his brother, the codefendant, at the trial. However, having once accepted to defend the codefendant, appellant’s counsel could not fully utilize such a move on the part of the appellant.

In Commonwealth v. Cavanaugh, 183 Pa. Superior Ct. 417, 133 A. 2d 288, this Court reversed an order refusing a writ of habeas corpus and granted a new trial because of ineffective representation after the defendant had pleaded guilty.

The instant case presents a much stronger argument for allowance of the writ of habeas corpus in that counsel for the appellant undertook the defense of the codefendant to the public detriment of appellant’s case.

Under these circumstances, it is my conclusion that the action of the trial judge, in appointing the same counsel to represent codefendants, was unjustly prejudicial to the rights of the appellant and that the lower court erred in refusing to grant the writ of habeas corpus.

Therefore, I dissent. Flood, J., joins in this dissent.