In re Shigon

• Decision Date: 16 October 1974
• Citation: 329 A.2d 235,462 Pa. 1
• Parties: In the Matter of Norman SHIGON and Sheldon Portner, Appellants.
• Court: Pennsylvania Supreme Court

329 A.2d 235

462 Pa. 1

In the Matter of Norman SHIGON and Sheldon Portner, Appellants.

Supreme Court of Pennsylvania.

October 16, 1974.

Rehearing Denied Dec. 27, 1974.

Thomas B. Rutter and Louis Lipschitz, Philadelphia for appellants.

William P. Stewart, Sp. Counsel, Philadelphia, for appellee, Special Judicial Investigation.

Before JONES C. J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

POMEROY Justice.

In a joint trial before a three-judge court of the Philadelphia Court of Common Pleas, appellant Norman Shigon was suspended from the practice of law for a period of five years, and appellant Sheldon Portner for a period of two years. Each has appealed to this Court. ^[1]

The conduct of which appellants were found guilty included sixteen charges (out of 23 asserted) of improper solicitation, fifteen charges (out of 16 asserted) of submitting inflated and fraudulent medical claims to insurance carriers, seven charges (out of 11 asserted) of submitting false information to the court of common pleas, and five charges of attempting to impede the Special Judicial Investigation in Philadelphia.

The appellants argue that there was either no evidence or insufficient evidence to sustain these findings of guilt, and that, in any event, the procedures under which they were investigated and tried were unauthorized and, in some respects, ultra vires, and that the procedures violated their constitutional rights to due process of law, to equal protection of the laws, and to refrain from giving evidence against one-self. Appellant Portner additionally argues that he has been held responsible for unethical acts committed by appellant Shigon without proof that he had any knowledge of such acts. Our review of the record and the applicable law satisfies us that these contentions are without merit; we will therefore affirm.

I. BACKGROUND OF THE CHARGES

On March 1, 1971, there was presented to the Philadelphia Bar Association a report by its special counsel, Morton S. Jaffe, Esquire, who had been engaged for the purpose of conducting an investigation into unethical solicitation of lawsuits by members of the Philadelphia bar. The report, sometimes called the 'Jaffe Report' after its author, was entitled 'Report to the Committee of Censors ^[2] of the Philadelphia Bar Association of the Investigation into Unethical Solicitation'. ^[3] The Philadelphia Bar Association submitted the report to the court and sought an order establishing procedures to be followed in implementing it. The court entered such an order on April 26, 1971, followed by an amended order on June 3, 1971, and by a supplementary order on August 19, 1971. The latter order, Inter alia, transferred responsibility for the investigation from the Committee of Censors to special counsel to be appointed by the court. A further amended order was entered by the court on its own motion on October 28, 1971, and it is this order which is the basis of the instant proceedings. ^[4]

The order of October 28, 1971 provided that, in the first instance, the evidence (including the testimony of an attorney under investigation) adduced by the special counsel with respect to any member of the bar should be heard Ex parte by a judge to be appointed for the purpose, and that such judge, 'if he concludes that such evidence warrants the institution of formal charges against one or more members of the Bar of this Court, shall so certify to the President Judge who shall appoint a three judge panel to conduct such formal proceedings and to impose such discipline as may be warranted by the evidence'. The order granted to special counsel 'the power to compel the appearance of relevant witnesses and the production of relevant evidence by subpoena'. The preliminary hearing judge was empowered to hear and determine any issues raised with respect to compliance with the order, including the failure of a witness to appear or to produce evidence subject to subpoena. ^[5]

The Jaffe report having identified appellants Shigon and Portner as persons who may have violated the proscription against solicitation, they and a number of their clients and other relevant witnesses were summoned by special counsel to appear before the Hon. Kendall H. Shoyer, who, on November 9, 1971, had been appointed as the preliminary hearing judge under the order of October 28th. On April 6, 1972, Judge Shoyer certified that charges of professional misconduct by appellants, as set forth in a petition of special counsel for imposition of discipline, appeared to be warranted. President Judge Jamieson thereupon appointed three other judges of the court of common pleas to constitute the Special Disciplinary Court in this matter. ^[6] Respondents filed preliminary objections and other pre-trial motions relative to the proceedings which were in due course heard and overruled or denied. ^[7] Thereafter, responsive answers were filed to the petition for imposition of discipline, in which all substantive charges, with one exception, were denied, ^[8] as was the existence of a partnership between Shigon and Portner. The case went to trial on September 11, 1972, and consumed 15 trial days. The opinion of the court en banc and its order imposing discipline were filed April 2, 1973. ^[9]

II. REGULARITY OF THE PROCEEDINGS

Initially we must consider the challenges which appellants make to the propriety of the procedures leading to the orders imposing discipline. Appellants do not dispute the power of a court to disbar, suspend or otherwise appropriately discipline members of its bar. Schofield Discipline Case, 362 Pa. 201, 204, 66 A.2d 675 (1949). As we noted in that case, the power has been exercised in the United States and England from the earliest times. Ibid. n. 1. It has been statutorily recognized in this Commonwealth since 1834. Act of April 14, 1834, P.L. 333, § 73, 17 P.S. § 1661. ^[10] This power to discipline, however, is not to be exercised arbitrarily. As this Court has long recognized, '(t)he right to practice law is constitutionally protected as a property right and no attorney can lawfully be deprived of such right except by due process of law and upon competent and relevant proofs sufficiently credible to support a just order of disbarment'. Schlesinger Appeal, 404 Pa. 584, 596, 172 A.2d 835, 840 (1961). See also Pennsylvania State Board of Pharmacy v. Cohen, 448 Pa. 189, 199, 292 A.2d 277, 282 (1972); Ex parte Steinman and Hensel, 95 Pa. 220, 237 (1880). 'Disbarment, designed to protect the public, is a punishment or penalty imposed on the lawyer . . . He is accordingly entitled to procedural due process, which includes fair notice of the charge.' Re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117, 122 (1968). The same may be said of the lesser penalty of suspension.

The power to impose discipline on members of the bar in Pennsylvania lay not only in this Court, but also in the several courts of common pleas as to lawyers who were members of the respective bars of such courts. ^[11] See e.g., Austin's Case, 5 Rawle 191 (1835); Dicken's Case, 67 Pa. 169 (1870); In re Davies, 93 Pa. 116 (1880). Appellants contend, however, that the authority of a court of common pleas to act in cases of lawyer misconduct, and the manner of its acting, is found exclusively in a statute, Viz., the Act of June 4, 1919, P.L. 384, § 1, as amended, 17 P.S. § 1665. ^[12] It is argued that there was no application by any committee for the convening of the special disciplinary court which acted in these cases or for the institution of the investigation of appellants' conduct, the order of October 28, 1971 ^[13] having been made upon the court's own motion. This argument misreads the statute, which simply empowers a court to issue its subpoena, upon application of a court-appointed or approved investigating committee, 'directed to any person whom such committee may desire to examine in connection with any such charges' of professional misconduct. The statute was so utilized in this proceeding; it does not purport to limit in any way the court's role in cases of alleged professional misbehavior and discipline to the narrow procedural framework there envisaged, and had this been the statute's purpose and effect, it would be of doubtful constitutionality. ^[14]

In 1936, this Court had presented to it a series of discipline cases arising out of an extensive investigation of misconduct of certain members of the Philadelphia bar. In re Disbarment Proceedings, 321 Pa. 81, 184 A. 59 (1936). In those cases, as in this, the procedure followed was developed by the court itself. The president judge of one of the Philadelphia courts of common pleas (No. 2) by letter to the chancellor of the Bar Association requested the appointment of a committee to conduct an investigation to ascertain 'the possible connection with organized crime of lawyers who practice largely in the criminal courts'. The committee was appointed, was vested with subpoena powers by the court, took testimony, and rendered a report. The court then issued a rule upon various lawyers identified by the committee as guilty of improper conduct to show cause why they should not be disciplined. The lawyers so cited were furnished with the committee's report and a summary prepared by the committee of the testimony taken, as it affected them. After answers filed, trial proceeded before a special five-judge court (composed of the president judges of the five courts of common pleas of Philadelphia County), and the lawyers were disbarred. Appellants in those cases, as here, challenged the regularity of the proceedings. In an opinion of the Court by Chief Justice Kephart, those challenges were examined and rejected. The Court thus summarized its...