KREMER v. SHOYER

Dissenting Opinion by

Me. Justice Nix :

The result reached by the majority today forces me to dissent for the following reasons.

At issue in this proceeding is whether petitioner Krerner, a member of the bar of this Court, should be allowed to represent petitioner Frohlich, a client of attorney X-l. This question arose during the course of a special judicial investigation when Mr. Frohlich was subpoenaed to testify with respect to a certain personal injury case in which X-l had served as his counsel. When Mr. Frohlich appeared before the court with Mr. Krerner as his attorney, Mr. Krerner was disqualified by order of the Court on the ground that there was a conflict of interest due to the fact that Mr. Krerner was being paid by X-l and not Mr. Frohlich.

At the outset, I note that Mr. Frohlich’s right to counsel of his choice is not at issue. In their answer to the petition the respondents specifically admit: “No one has suggested that Petitioner Frohlich may not be *40represented by counsel of Ms choice. The Order below seeks to prohibit Petitioner Frohlich from being represented by counsel of X[-l]’s choice.” (Emphasis in original.)1 Indeed, any attack on petitioner Frohlich’s right to retain counsel would be ineffectual. The sanctity of the right to retain counsel in both civil and criminal cases was recognized in Powell v. Alabama, 287 U.S. 45 (1932),2 where the Supreme Court explicitly stated that: “If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.” 287 U.S. at 69. Similarly, this Court has recently observed in an analogous situation that “[t]he right to counsel of one’s own choosing is particularly significant because an individual facing criminal sanctions should have great confidence in his attorney.” Moore v. Jamieson, 451 Pa. 299, 307-08, 306 A. 2d 283, 288 (1973). See Commonwealth v. Velasquez, 437 Pa. 262, 265, 263 A. 2d 351, 353-54 (1970); Commonwealth ex rel. Goodfellow v. Rundle, 415 Pa. 528, 533, 204 A. 2d 446, 448 (1964); Kamisar, Betts v. Brady Twenty Years Later: The Right to Counsel and Due Process Values, 61 Mich. *41L. Rev. 219 (1962); The Right to Counsel: A Symposium, 45 Minn. L. Rev. 693 (1961).

I recognize that an individual’s right to counsel of his choice is not absolute, particularly in light of the state’s interest in establishing standards to control the practice of law in its courts. In the instant case, we have as conflicting interests the right of Mr. Frohlich to retain Mr. Kremer as his attorney and the right of the state to discipline lawyers to prevent unethical and unprofessional conduct. In balancing these conflicting interests, I must conclude that the state’s interest in assuring that the administration of its legal system is properly controlled is not a sufficiently compelling interest to justify the degree of infringement (i.e., disqualification of his attorney) imposed upon Mr. Frohlich’s right to counsel.

Here, it is alleged that petitioner Kremer should be disqualified because of the arrangement whereby X-l referred Mr. Frohlich to Mr. Kremer and undertook to pay Mr. Kremer’s fee. It is averred that this situation necessarily gives rise to a conflict of interest in violation of the Code of Professional Responsibility. However, it is my belief that petitioner Kremer has adhered to the highest ethical standards of our bar.

Disciplinary Rule 5-107 of the American Bar Association’s Code of Professional Responsibility, the standard applicable to the instant case, provides as follows:

“D.R. 5-107 Avoiding Influence By Others Than the Client

“(A) Except with the consent of his cUent 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.

*42“(B) A lawyer shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services.” (Emphasis added.) It is not disputed that Mr. Kremer made a full and voluntary disclosure to Mr. Frohlich of the method of referral and of the payment arrangement. Moreover, Mr. Frohlich was also fully cognizant of the possible conflicts that could arise between he and N-l when he chose Mr. Kremer to represent him. Subsequent to his retaining Mr. Kremer, Mr. Frohlich has stated that he has complete faith in the ability and ethics of Mr. Kremer and that he is fully satisfied with the legal services rendered and the advice offered by his present attorney.

The record before us fails to sustain any suggestion that Mr. Frohlich received inadequate or inefficient representation from Mr. Kremer or that the method by which he was retained has in any way influenced his handling of this case. Notwithstanding the absence of actual misconduct and Mi*. Kremer’s complete and voluntary explanation of the entire arrangement to Mr. Frohlich, the respondents maintain that the court below was acting within its discretion in disqualifying Mr. Kremer because “even the appearance of impropriety” cannot be tolerated. However, in my view, a subtle appearance of impropriety is not a sufficiently compelling reason to disqualify an attorney from representing a client who is fully aware of all possible conflicts of interest. As pertinently stated in the Ethical Considerations applicable to Canon 9:3 “In order to avoid misunderstandings and hence to maintain confidence, a lawyer should fully and promptly inform his client of material developments in the matters being handled *43for the client. While a lawyer should guard against otherwise proper conduct that has a tendency to diminish public confidence in the legal system or in the legal profession, Ms duty to clients or to the public should never be subordinate merely because the full discharge of his obligation may be misunderstood or may tend to subject him or the legal profession to criticism (Emphasis added.) Ethical Consideration 9-2, ABA Canons of Professional Responsibility No. 9.

In my estimation, public confidence in our legal system will only be eroded where there is no attempt to disclose potentially conflicting interests. Here, Mr. Kremer by virtue of his voluntary disclosures has upheld the integrity of his profession and, in fact, has exercised proper judgment in competently safeguarding the interests of his client, Mr. Frohlich, to whom he owes a solemn duty. Having found no conduct that would warrant a conclusion that the arrangements between counsel and client in fact have improperly influenced counsel’s handling of the case, I believe the disqualification of counsel was completely arbitrary and constitutes an unreasonable and intolerable burden on the constitutional right to counsel of one’s choice.

I would reverse the order of the court below disqualifying Mr. Kremer as attorney for Mr. Frohlich.

The Order of the court below, dated November 16, 1972, which disqualified Mr. Kremer from representing Mr. Frohlich, provides: “This Order is not to be construed to preclude Messrs. [X] and [Y] from advising clients subpoenaed by the Court, of their rights to be represented by counsel of their choosing if such client’s request advice from them.” (Emphasis added.)

In Powell v. Alabama, it was held that failure to provide effective counsel in a capital case violated the due process clause of the fourteenth amendment. It was determined that in such circumstances the aid of counsel was encompassed within those fundamental principles of Uberty and justice guaranteed by the constitutional requirement of due process of law.

“A Lawyer Should. Avoid Even the Appearance of Professional Impropriety”, ABA Canons of Professional Responsibility No. 9.