Lloyd v. Fishinger

• Decision Date: 10 March 1992
• Parties: , 60 USLW 2667 Evan E. LLOYD, Esquire and Leslie D. Michel, Esquire, Appellees, v. Ralph T. FISHINGER and Rosemary Fishinger, his wife, Appellants.
• Court: Pennsylvania Supreme Court

Page 1193

605 A.2d 1193

529 Pa. 513, 60 USLW 2667

Evan E. LLOYD, Esquire and Leslie D. Michel, Esquire, Appellees, v. Ralph T. FISHINGER and Rosemary Fishinger, his wife, Appellants.

Supreme Court of Pennsylvania.

Argued Sept. 24, 1991.

Decided March 10, 1992.

Paul G. Kachulis, Pittsburgh, Pa., for appellants.

John G. Arch, Gregory Whitney, Pittsburgh, Pa., for appellees.

John A. Caputo, John A. Caputo & Associates, Pittsburgh, Pa., for amicus curiae Pennsylvania Trial Lawyers Ass'n.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADOKAS and CAPPY, JJ.

ORDER

PER CURIAM.

The Court being equally divided, the order of the Superior Court is AFFIRMED.

PAPADAKOS, J., did not participate in the consideration or decision of this case.

CAPPY, J., files an Opinion in Support of Affirmance.

FLAHERTY, J., files an Opinion in Support of Reversal in which NIX, C.J., and McDERMOTT, J., join.

OPINION IN SUPPORT OF AFFIRMANCE

CAPPY, Justice.

This case presents an issue involving the constitutional doctrine of separation of powers. Specifically, may the legislature prescribe rules directly affecting the conduct of attorneys in this Commonwealth, when the Pennsylvania Constitution at Article V, Section 10, has expressly delegated the authority to oversee the conduct of lawyers to the judiciary.

The question posed to this Court arises from the efforts of the appellants to dismiss the appellees from acting as their legal counsel in a personal injury action. Ralph Fishinger, the appellant, was seriously injured in a motorcycle accident occurring on June 6, 1987. As a result of the accident Mr. Fishinger underwent amputation of part of one leg, and remained hospitalized for one month. On June 8, 1987, two days after the accident, the appellee, attorney Lloyd arrived at the hospital to discuss a contingent fee agreement with Mr. Fishinger, whereby Mr. Lloyd would provide legal representation for Mr. Fishinger as a result of any claim arising from the accident. Mr. Fishinger signed the agreement at that time. ¹ Prior to visiting Mr. Fishinger, attorney Lloyd had been to the Fishinger home, where he obtained Mrs. Fishinger's signature on the contingent fee agreement, to represent her interests as a result of her husband's accident. ²

Upon being released from the hospital on July 9, 1987, Mr. Fishinger called attorney Lloyd and told him that his services were not wanted. Attorney Lloyd requested written verification of dismissal. Mr. Fishinger instructed his new counsel to provide written verification. Attorney Lloyd then insisted upon written verification by Mr. and Mrs. Fishinger, who promptly complied with that request. Attorney Lloyd then filed a complaint against the Fishingers in contract to enforce the contingent fee agreement, with an alternative count in equity for quantum meruit. ³

The Fishingers filed preliminary objections to the complaint alleging the invalidity of the contingent fee agreement on the basis of 42 Pa.C.S. § 7101(a)(3), entitled Settlements and other agreements with hospitalized persons, which provides in pertinent part:

Where a person is injured and confined as a patient to a hospital or sanitarium due to such injuries, no attorney shall, during the first 15 days of the confinement of such patient, enter or attempt to enter into an agreement relating to compensation wholly or partly on a contingent basis with such patient in connection with his injuries.

The trial court sustained the preliminary objections and dismissed the entire complaint. The Superior Court reversed and remanded the order of the trial court, holding that the statute was an unconstitutional infringement by the legislature upon the express power of the judiciary to prescribe rules of conduct for attorneys in Pennsylvania. 380 Pa.Super. 507, 552 A.2d 303. This Court granted allocatur to review the question of the constitutionality of this legislative enactment. ⁴ For the following reasons we affirm the decision of the Superior Court.

Article V, Section 10(c) of the Pennsylvania Constitution distinctly delineates the authority of the judiciary, providing in pertinent part:

The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, justices of the peace and all officers serving process or enforcing orders, judgments or decrees of any court or justice of the peace, including the power to provide for assignment and reassignment of classes of actions or classes of appeals among the several courts as the needs of justice shall require, and for admission to the bar and to practice law, and the administration of all courts and supervision of all officers of the judicial branch, if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose. All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions. (emphasis supplied).

In Wajert v. State Ethics Commission, 491 Pa. 255, 420 A.2d 439 (1980), this Court made clear that it holds the exclusive power to govern the conduct of attorneys in Pennsylvania. Wajert was a former judge, who, upon leaving the bench in the Court of Common Pleas, sought to resume his legal practice. He was informed by the State Ethics Commission that he would be prohibited from representing any clients before the Court of Common Pleas from which he had resigned for a period of one year. See, Section 3(e) of the State Ethics Act, Act of October 4, 1978, P.L. 883, No. 170, § 1; 65 P.S. § 403(e). This Court held that the "application of this statute to a former judge constitutes an infringement on the Supreme Court's inherent and exclusive power to govern the conduct of those privileged to practice law in this Commonwealth." Id. at 262, 420 A.2d at 442.

The statute was declared inapplicable to Wajert as a violation of the doctrine of separation of powers. The same statute was held inapplicable, for the same reason, to former attorney employees of the Public Utility Commission in Pennsylvania Public Utility Commission Bar Association v. Thornburgh, 498 Pa. 589, 450 A.2d 613 (1982). ⁵

In a rather unusual format, this Court crystallized the importance of the doctrine of separation of powers in In re 42 PA.C.S. § 1703, 482 Pa. 522, 394 A.2d 444 (1978), petition for leave to file petition for mandamus denied, Kubert v. The Supreme Court of Pennsylvania, 440 U.S. 905, 99 S.Ct. 1269, 59 L.Ed.2d 487 (1979). The Legislature had enacted, and the Governor had approved, a provision of the Public Agency Open Meeting Law, 42 Pa.C.S. § 1703, which would require this Court to hold sessions open to the public while exercising its rule-making powers. In an open letter to the executive and legislative branches, this Court emphatically expressed its view that provision was unconstitutional:

While the separation of powers doctrine does not "contemplate total separation of [the] three ... branches of Government," Buckley v. Valeo, 424 U.S. 1, 104, 96 S.Ct. 612, 675, 46 L.Ed.2d 659 (1976), the existence of appropriate overlap between branches with respect to some functions of government does not mean that such overlap is appropriate with respect to all functions. The Pennsylvania Constitution grants the judiciary--and the judiciary alone--power over rule-making. In enacting Section 1703, the General Assembly has attempted to assume some of that power, but to our minds, the arguments justifying that attempt are inadequate in light of doctrines developed in this and other jurisdictions. We conclude, in sum, that Section 1703 simply cannot be reconciled with the constitutional scheme of the Commonwealth of Pennsylvania.

In re 42 PA.C.S. 1703 at 534, 394 A.2d at 451.

At its original conceptualization, the theory of separation of powers was to prohibit tyranny by creating a system within which no one branch of government would hold all the reins of power. See, The Federalist No. 47 (J. Madison). Admittedly, the threat of tyranny is not as active a concern today as it was at the birth of our State and Federal Constitutions. However, the principles upon which we developed three separate branches of government, each with its own field of expertise and dominion, are still to be strictly followed.

The Supreme Court in this Commonwealth is empowered by the Pennsylvania Constitution to govern the conduct of attorneys practicing law within the Commonwealth. In furtherance of that authority, this Court has enacted rules of professional conduct. At present, Rule 7.3 Direct Contact with Prospective Clients, prohibits the actions taken by attorney Lloyd in the instant case. Although Rule 7.3 was not in effect at the relevant time herein, its predecessor, DR 2-103, was in full force and effect, and contained the same prohibition.

In our serious task of overseeing ethical conduct within the bar, this Court is not unaware of the evils involved in direct solicitation of clients by attorneys. Those inherent evils were succinctly summarized by the United States Supreme Court in Ohralik v. Ohio State Bar Association, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978): "The substantive evils of solicitation have been stated over the years in sweeping terms; stirring up litigation, assertion of fraudulent claims, debasing the legal profession, and potential harm to the solicited client in the form of overreaching, overcharging, underrepresentation, and misrepresentation." Id. at 461, 98 S.Ct. at 1921.

The aversion of this Court for the conduct of attorney Lloyd described in this case, however, cannot be a reason to uphold an unconstitutional infringement by the legislature upon the exclusive power and authority of this Court. Rules of conduct disapproving direct...