Kremer v. Stewart

• Decision Date: 29 May 1974
• Docket Number: Civ. A. No. 73-2679.
• Citation: 378 F. Supp. 1195
• Parties: I. Raymond KREMER and Eugene Frohlich, Plaintiffs, v. William STEWART et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

378 F. Supp. 1195

I. Raymond KREMER and Eugene Frohlich, Plaintiffs, v. William STEWART et al., Defendants.

Civ. A. No. 73-2679.

United States District Court, E. D. Pennsylvania.

May 29, 1974.

I. Raymond Kremer, Philadelphia, Pa., for plaintiffs.

William P. Stewart, James D. Crawford, Philadelphia, Pa., for Shoyer and Jamieson.

MEMORANDUM AND ORDER

NEWCOMER, District Judge.

The present action is an action for deprivation of civil rights under 42 U.S. C. § 1983. The defendants have filed motions to dismiss, and have supported these motions with affidavits. Therefore, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, we shall treat defendants' motions to dismiss as motions for summary judgment under Rule 56.

The undisputed facts are as follows. In the Fall of 1971, the President Judge of the Court of Common Pleas of Philadelphia County, defendant, The Honorable D. Donald Jamieson, appointed a special counsel to investigate alleged improper solicitation by certain members of the Philadelphia Bar. The special counsel, defendant William Stewart, was to act under the supervision of the Court and was to be responsible to it. In other words, this investigation was a judicial investigation.

On October 24, 1972, the plaintiff Eugene Frohlich was subpoenaed to testify before the Judge presiding over the special judicial investigation, the defendant, The Honorable Kendall H. Shoyer, as to the manner in which he had obtained "X", a lawyer under investigation for improper practices, as counsel in a personal injury case. As soon as he received this subpoena, Frohlich contacted "X" who told him that he should contact plaintiff Raymond Kremer to represent him at the hearing. When Frohlich asked "X" why it was necessary to have a lawyer, "X" replied "It is a nice thing to have when you go in for the hearing." Frohlich was also advised that Kremer's representation would not cost him anything.

Plaintiff Kremer testified at the hearing on November 3, 1972, that he entered into an arrangement with "X" in which he agreed to represent any and all of "X's" former clients who were called as witnesses before the Court for a flat fee of $350 per witness. Based on this information, defendant Stewart, in his capacity as special counsel for the investigation, challenged Kremer's right to represent Frohlich on the grounds that "X's" referral of Frohlich to Kremer and his prepayment for Kremer's services was tantamount to "X's" representing Frohlich before the Court himself, which, according to defendant Stewart, created a conflict of interest potentially damaging to the client and undermined the confidentiality and efficacy of the investigation. Plaintiff Frohlich, waiving his attorney-client privilege, testified that Kremer had disclosed the details of prepayment to him and had warned him of a possible conflict of interest, but Frohlich declared that he trusted Kremer and that he wanted Kremer and only Kremer as his attorney. Nevertheless, Judge Shoyer, who was presiding over the hearing, disqualified Kremer from representing Frohlich during the investigation. It appears that Judge Shoyer's ruling was limited to Kremer's capacity to represent Frohlich only, and did not include in its ban any of the other witnesses or potential witnesses before the investigation.

When plaintiff Frohlich advised the Court that he neither wanted counsel appointed for him nor wished to retain any other attorney except Mr. Kremer, whom the Court had unconditionally disqualified from representing him, defendant Stewart abstained from further questioning of the witness until the matter could be resolved on appeal in the state courts. On July 2, 1973, the Supreme Court of Pennsylvania refused to grant plaintiff Kremer's petition for mandamus on the grounds that there was no "extreme necessity" justifying such action. Plaintiff Frohlich was again called to testify before the investigating court. He indicated to Kremer that he still wished Kremer to represent him, but Kremer informed him that he was still barred from representing him by Judge Shoyer's order. Frohlich appeared and testified before the Court on November 28, 1973. The record does not show whether or not he was represented by counsel other than Mr. Kremer, nor does it show whether or not the Court or defendant Stewart advised him of his Fifth Amendment right against self-incrimination.

Mootness

All three defendants moved to dismiss the complaint on the grounds that the acts complained of have terminated, and that therefore the action is moot. An essential element in this argument is the immunity of all three defendants from claims for damages under Section 1983; if only equitable relief is available, the case will be moot unless there is some ongoing activity to enjoin. There is no question that the judicial defendants are immune from damages under Section 1983, and it is generally recognized that elected prosecutors (or their subordinates) enjoy a similar type of immunity. Bauers v. Heisel, 361 F. 2d 581 (3rd Cir. 1966). Although defendant Stewart is not an elected prosecutor, we believe that he meets the other standards set forth in the Heisel case sufficiently to qualify him for an immunity similar to the immunity afforded judges. Thus the question of mootness must be addressed.

Defendants aver that the investigation phase of this extraordinary judicial inquiry into improper behavior by members of the bar is over except for the questioning of a few witnesses not covered by Judge Shoyer's order, and that since plaintiff Frohlich is in no further danger of being called before the investigating court, the matter is moot. However, defendants do concede that plaintiff Frohlich may be called before the three-judge panel which is to adjudicate the charges resulting from the investigation. Likewise, defendants do not explicitly deny plaintiffs' contention that the testimony elicited from Frohlich on November 28, 1973 will not be used during this adjudicative procedure. We cannot artificially divide this judicial disciplinary procedure into two phases, investigatory and adjudicatory, and hold that a claim that this procedure violates civil rights is moot merely because the investigatory phase is over. Plaintiff Kremer still faces the likelihood that he will be barred from representing Frohlich during the three-judge...