Concurring Opinion by
Mr. Justice Pomeroy :I concur in the denial of the petition filed herein “for writ of mandamus and/or writ of prohibition”. My reasons, however, differ from those given by my brother O’Brien. In a word, I am satisfied that an action in mandamus does lie in a situation of this sort,1 but that on the merits—a subject treated by the dissenters—I am convinced that the lower court was entirely correct in disqualifying petitioner Kremer from further representation of petitioner Erohlich.
*29T. Mandamus is a Proper Remedy
The facts bearing on the remedy problem would appear to be as follows:2 The Court of Common Pleas of Philadelphia, by order of its President Judge Jamieson, has undertaken an investigation of certain alleged unethical practices committed by members of the Bar of that City. Two attorneys, respondents Michael Franck, Esquire, and William P. Stewart, Esquire, have been appointed special counsel to aid in the conduct of that investigation. Witnesses to be examined in that proceeding are brought by subpoena before a judge of the court and are questioned in an ex parte manner by the special counsel. These witnesses, some of whom are former clients of the attorneys under investigation, often bring with them counsel to render advice during the examination. In the matter now before us, attorney X-l is under investigation. Petitioner Frohlich had been represented by X-l when Frohlich was plaintiff in an automobile accident case, and was contacted by the special counsel. Immediately after an interview with an investigator, Frohlich telephoned his former attorney X-l and informed him of the interview and of the fact that he, Frohlich, had been subpoenaed and was to appear before Judge Shoyer on November 3, 1972. Attorney X-l advised Frohlich that he should have a lawyer when he appeared before the judge and that to that end should telephone I. Raymond Kremer, Esquire, at such-and-such a number the next morning. Frohlich did so, and was told by Mr. Kremer’s secretary that Mr. Kremer had been expecting his call and that she would call back and give him an appointment. *30Frohlich later that day again called attorney X-l and asked him why the services of a lawyer were necessary. X-l assured him that counsel would be advantageous, and that he, X-l, would pay the fee of Mr. Kremer. Kremer’s secretary called Frohlich back and requested him to be in the attorney’s office at 9:30 a.m., November 3rd, the day of the hearing. The two met in Mr. Kremer’s office and later proceeded to the examination before Judge Shoyer, at which time Kremer was disqualified by order of the court from further representation of Frohlich in the investigatory proceeding. Mr. Kremer told the court at the hearing that he had prior to that day been paid $350 by attorney X-l as a fee for his representation of Frohlich.
Petitioners’ pleading in this Court states essentially a cause of action in mandamus; it requests that this Court enter an order compelling the respondent Judge Shoyer to permit the petitioner-witness Frohlich to be examined with the assistance of any counsel of his choice and, because Frohlich’s choice is Kremer, to permit Kremer to represent Frohlich.®
The writ of mandamus was one of the high prerogative writs of the King’s Bench. As we have often said, it “lies to compel the performance of a ministerial act or mandatory duty where there is clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy.” Travis v. Teter, 370 Pa. 326, 330, 87 A. 2d 177 (1952). *31See also Martin v. Garnet Valley School District, 441 Pa. 502, 272 A. 2d 913 (1971); Philadelphia Presbytery Homes, Inc. v. Abington Board of Commissioners, 440 Pa. 299, 269 A. 2d 871 (1970); Unger v. Hampton Toivnship, 437 Pa. 399, 263 A. 2d 385 (1970); Gallagher v. Springfield Township Board of Commissioners, 438 Pa. 280, 264 A. 2d 699 (1970). In a proper case it can be utilized to compel a sitting judge of a court of common pleas to perform an act which he has no power to refuse to perform. Commonwealth ex rel. Duff v. Keenan, 347 Pa. 574, 33 A. 2d 244 (1943). It cannot be used where the act sought to be compelled lies within the discretion of the respondent official to act or not to art, Morgan v. Bucher, 442 Pa. 498, 276 A. 2d 523 (1971), nor is the writ available where there is open to the petitioner another adequate remedy, Lewis v. Emmott, 385 Pa. 336, 122 A. 2d 727 (1956). And finally, the court to which application for the writ is made has itself a discretion to refuse to grant the writ. Dombrowski v. City of Philadelphia, 431 Pa. 199, 245 A. 2d 238 (1968).
Assuming for the moment that the petitioners are correct in their claim that Frohlich has a clear4 legal right to have Kremer represent him and that Judge Shoykk has a legal duty to respect that right, then the only stumbling block that might remain to establishment of a cause of action in mandamus would be the requirement that there exist no other adequate legal remedy. I know, however, of no procedure whereby either petitioner, neither of whom is a party to any ongoing judicial proceeding, could otherwise obtain review of the order disqualifying Kremer. In short, *32given the existence of tbe right alleged, I think that mandamus is the remedy.5
II. This Action Is Not Ripe For Decision
This Court has original jurisdiction over an action brought in mandamus against a court of inferior jurisdiction. Pa. Const, art. Y, §2; Act of July 31, 1970, The Appellate Court Jurisdiction Act of 1970, P. L. 673, No. 223, art. II, §201, 17 P.S. §211.201 (Supp. 1973-74). An action in mandamus is an action at law, the procedure of which is governed by Pennsylvania Rules of Civil Procedure 1091-1099. Rule 1091 provides that “[ejxcept as otherwise provided in this chapter, the procedure in the action of mandamus shall be in accordance with the rules relating to the action of assumpsit”. Those rules, of course, establish the methods of pleading, answering, alleging affirmative defenses in new matter, replying, moving for judgment on the pleadings, summary judgment, etc.
The present original action in mandamus is before the Court through the following pleadings and other *33papers which have been filed: a petition for writ of mandamus, an answer by respondents Franck and Stewart, an answer by respondent Judge Siioyer, a reply to both answers,6 and various exhibits, briefs, memoranda and letters in support of the parties’ relative positions. The parties have not entered into a stipulation of the facts. Petitioners assert that the record consists of the pleading (as it does) and contend that “the facts in this matter are properly set forth and pleaded in the petitioners’ Petition and their Replies to the Answers.” The fact is, however, that a number of material allegations are denied or qualified in the answers, and the resolution of such disputed points would require an adjudication, of the merits, either by way of a motion for summary judgment or after an evidentiary hearing. No such motion has been made, however, and this Court has not proceeded to a hearing or appointed a master for that purpose.
It is clear, therefore, that while the form of action selected by petitioners is in my view proper, the matter is not yet capable of disposition on the merits. We should, in the proper exercise of our original jurisdiction, appoint a master to resolve disputed factual issues, cf. Schubach v. Zoning Board of Adjustment, Pa. ,308 A. 2d 595 (1973).
III. The Court of Common Pleas Violated No Duty and the Writ Is Properly Denied
The dissenters, however, address themselves to the merits of this action. On the basis of the facts which *34appear to me to be undisputed, I would venture to say that Judge Shoyeb acted correctly and that he had no legal duty to permit Kremer to represent Frohlich and no duty to permit Frohlich to insist on representation by Kremer. In the absence of such a duty, a writ of mandamus should not issue, notwithstanding that mandamus is in my view the proper form of action here.
The starting point in the consideration of this matter must be the code of Professional Responsibility, adopted by the American Bar Association,7 and which is embodied in the rules of this Court. Pa. R.C.P. 205.8
The Code, like Gaul, is divided into three parts: canons, ethical considerations, and disciplinary rules. The canon with which we are today concerned is Canon 5: “A lawyer should exercise independent professional judgment on behalf of a client.” The Canons, as the American Bar Association states, are statements of “axiomatic norms”.9 The ethical considerations, on the other hand, are said to be “aspirational in character and represent the objectives toward which every member of the profession should strive.” There are two ethical considerations which are relevant here and which serve to interpret Canon 5. Ethical Consideration 5-22 reads in part that “if a lawyer is compensated from a source other than his client, he may feel a sense of responsibility to someone other than his client.” (My *35emphasis.) Ethical Consideration 5-23 cautions that “[a] person . . . that pays or furnishes lawyers to represent others possesses a potential power to exert strong pressures against the independent judgment of those lawyers.” Lastly, the disciplinary rules are said by the A.B.A. to be “mandatory in character. The Disciplinary Rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action” (My emphasis.)
Petitioner Kremer points out that Ms conduct in this matter is not barred by the terms of Disciplinary Rule 5-107 (A)10 because Frohlich knew of Kremer’s arrangement with X-l and consented to it. 1 agree that such consent is indicated in the record, but add that it is not surprising that the Disciplinary Rules, the minimum acceptable standards of the Bar, have not been drafted to condemn in specific terms the highly unusual situation presented here.
It is important to bear in mind not only that attorney X-l, the lawyer under investigation, agreed to pay for legal services rendered by Mr. Kremer, but also that X-l in fact suggested to Mr. Frohlich that he should have a laAvyer present at the investigation and recommended that Kremer be the lawyer so employed. The initial choice of Kremer as the laAvyer for Frohlich was not Frohlich’s, but that of X-l, and X-l’s undertaking to pay for the services was coupled with the engagement of Kremer as the lawyer. It should be noted that DR 5-107(a), supra, does not deal with the question of selection of counsel; it deals only Avith pay*36ment. The fact that Frohlich went along with this selection surely does not prevent a court from questioning its propriety and rule against it under all the circumstances. I know of no constitutional right of a lawyer under investigation for possible misconduct to invest his client, a witness in the investigation, with another lawyer of his own choosing and whom he pays. In short, while the conduct here is not a ground for disbarment under the precise language of DR 5-107 (A), I must say that it does not strike me as conforming to “the highest ethical standards of our bar”, as Mr. Justice Nix describes it. (See Dissenting Opinion, post at 41).
Canon 5 concerns itself with but one interest: that of the client (here Frohlich) in receiving “independent professional judgment”. Where the fact of payment from a third party is disclosed to the client, the position taken by DR 5-107 would seem to be that the client will be sufficiently apprised of the risk of conflict and will be on guard. But in this case there is at stake an interest other than that of Frohlich; there is the public interest and the need for public confidence in the conduct of this judicial inquiry into unethical practices.
In dealing with the conduct of lawyers and judges, it is a truism that appearances are as important as the actual facts. In the words of the old maxim, “justice should not only be done, but should ... be seen to be done.”11 Canon 9 of the Code of Professional Responsibility stipulates that “[a] lawyer should avoid even the appearcmee of professional impropriety”. (Emphasis my own.)12 While the motives of X-l in selecting *37and agreeing to pay for the services of Mr. Kremer may be beyond reproach (i.e., may be motivated by a genuine sense of obligation to the client), and the action of Mr. Kremer under this arrangement may be completely independent, it cannot be gainsaid that the appearance of the relationships are not good. Where the person that pays and furnishes a lawyer to represent another is himself a lawyer under court investigation, and where the other is his client called to give testimony in the investigation, no argument should be required to demonstrate that the appearance of impropriety is present.
“Courts have an inherent power to make and follow rules governing [the discipline of members of the bar] or to formulate new rules as the case demands so long as no right of the member charged is invaded. ... A court may conduct a general investigation of unprofessional conduct in an effort to rid the practice of undesirable members. . . .” In re Disbarment Proceedings, 321 Pa. 81, 101, 184 A. 59 (1936). A client’s right to a specific lawyer is not absolute, Moore v. Jamieson, 451 Pa. 299, 306 A. 2d 283 (1973). The Philadelphia Court of Common Pleas was fully within its competence in seeking to preserve the integrity of its investigative proceeding by insuring that appearances of impropriety were avoided. The disqualification of Mr. Kremer was appropriate to that end, and did not constitute a violation of either his constitutional rights or those of the client Frohlich.13
*38For tbe reasons stated, I join in the denial of the writ of mandamus.
Mr. Justice Eagen joins in this concurring opinion.Although I am of the view that mandamus lies, I agree that prohibition is properly denied. The difference between the two is that the first orders that a certain action be taken or not taken, while the latter orders a court of inferior jurisdiction not to act in the matter further because it lacks jurisdiction altogether. The Court of Common Pleas of Philadelphia (of which respondent Shoyeb is a sitting judge) has jurisdiction to conduct investigations into the conduct of members of the bar of that County, In Re Disbarment Proceedings, 321 Pa. 81, 101, 184 A. 59 (1936); Pa. Sup. Ct. Rule 17-25 (“These [Disciplinary] Rules shall not apply to any special judicial investigation in existence at the time of the adoption of these Rules, which . . . shall be concluded under the procedure established for the conduct of such investigation”), and it would follow that a writ of prohibition would be, for that reason, properly denied.
There are procedural difficulties in establishing the exact facts. See text at note 6 infra. My summary is taken largely from the notes of a hearing held before the respondent Judge Shoves on November 3, 1972 during which testimony was received as to how Frohlich came to be represented by I. Raymond Kremer, Esquire.
Petitioners state their requests for relief in the negative, i.e., they ask that the respondent judge be restrained from interfering with petitioner Kremer’s representation of petitioner Frohlich. The difference is semantical only.
I also note that it is unnecessary for respondents Franck and Stewart to be parties to this proceeding. If petitioners are entitled to prevail in an action in mandamus against Judge Shoyer, then obviously no relief would be needed or warranted against these other two respondents, who are lesser officers of the Court.
The right asserted here is not made unclear by the need for an interpretation of a statute or the announcement of a new principle of law. If there are no other means of review, then novel questions must be and are decided in actions for mandamus. Booz v. Reed, 398 Pa. 172, 157 A. 2d 170 (1960).
The United States Court of Appeals for the Third Circuit in Schlesinger v. Teitelbaum, 475 F. 2d 137 (3d Cir. 1973), entertained a petition for writ of mandamus on the foUowing facts. Schlesinger, an attorney, had been limited by an order of a judge of the District Court of the United States for the Western District of Pennsylvania to an attorney’s fee consistent with the fee schedule approved by the district court in seamen’s eases, a fee lower than that negotiated between Schlesinger and his client, a seaman. Schlesinger brought an action in mandamus against the federal district court judge in the Third Circuit, and that court, while not disputing the propriety of proceeding in mandamus, held that the writ would not issue because the lower court had power to act as it did. The case now at bar seems to me to be on all fours with Schlesinger.
See also Schlagenhauf v. Holder, 379 U.S. 104, 13 L. Ed. 2d 152 (1964); La Buy v. Howes Leather Co., 352 U.S. 249, 1 L. Ed. 2d 290 (1957). See generally Note, Supervisory and Advisory Mandamus Under the All Writs Act, 86 Harv. L. Rev. 595 (1973).
Under Pa. K.O.P. 1017(a), a reply is permissible only if “the answer contains new matter or a counterclaim.” A counterclaim is not permitted in mandamus, Pa. R.O.P. 1096, and none was pleaded. Neither was any new matter (affirmative defenses, see Pa. R.O.P. 1030) asserted. It follows that the Replies filed by petitioners were improperly placed before this Court.
American Bar Association, Code of Professional Responsibility (Pinal Draft, 1969).
See also Pa. Sup. Ct. Rule 17-3, which provides: “Grounds for Discipline: Acts or omissions by an attorney, individually or in concert with, any other person or persons, which violate the Code of Professional Responsibility of the American Bar Association, as from time to time in effect in Pennsylvania, shall constitute misconduct and shall be grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship.”
ABA Code of Professional Responsibility (Pinal Draft, 1969) (Preliminary Statement).
“DR 5-107 Avoiding Influence by Others Than the Client.
“(A) Except with the consent of his client after full disclosure, a lawyer shall not:
“(1) Accept compensation for his legal services from one other than his client.
“(2) Accept from one other than his client anything of value related to his representation of or his employment by his client.”
Rex v. Sussex Justices, 1 K.B. 256, 259 (1924) (Lord Hewart, C. J.).
See also Ethical Consideration 9-1: “Continuation of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system. A lawyer should promote public eonfi*37denee in our system and in the legal profession.” and Ethical Consideration 9-2: “. . . When explicit ethical guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.”
The Opinion of the Court states that “the examination of Frohlich must be confined to a determination of whether, in fact, Frohlich had been ‘unethically solicited’. ...” A reading of re*38spondents’ answers reveals that the examination of other witnesses has dealt with the subject of medical expense frauds (as will that of Frohlich in the future). Petitioner Kremer has throughout asserted that he bases no objection to such questions on the ground that they go beyond the scope of the investigation. I see no reason for the majority to have thus apparently limited the scope of this inquiry.
In footnote 1 of the Opinion of the Court, it is suggested that “[i]f the questioning were to branch out into other fields [such as] acts of fraud against an insurance company, . . . then the denial of his right to representation by the attorney of his choice, regardless of who was paying the attorney, might lead us to a different conclusion.” I must note my disagreement with the accuracy of or the necessity for this observation.