Pirillo v. Takiff
Decision Date | 07 July 1975 |
Citation | 341 A.2d 896,462 Pa. 511 |
Parties | Anthony D. PIRILLO, Jr., Esquire, et al. v. Honorable Harry A. TAKIFF. Anthony D. PIRILLO, Jr., Esquire, et al. v. Honorable Harry A. TAKIFF and Walter M. Phillips, Jr., Esquire. |
Court | Pennsylvania Supreme Court |
Anthony D. Pirillo, Jr., Salvatore J. Cucinotta, Philadelphia, for petitioners.
Harry A. Takiff, M. L. Levy, Robert B. Lawler, Nancy J. Moore, Ben W. Joseph, Asst. Attys. Gen., Walter M. Phillips, Jr., Deputy Atty. Gen., Philadelphia, for respondents.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, and MANDERINO, JJ.
These two petitions 1 present the novel question of whether the supervising judge of a regular grand jury conducting a special investigation may disqualify a single attorney and his associate from representing twelve witnesses subpoenaed to testify before the grand jury. We decline to issue a writ of prohibition to the supervising judge who disqualified the two attorneys/petitioners.
On January 31, 1974, the Honorable Harry A. Takiff, respondent herein, charged the January 1974 Grand Jury as a special investigating grand jury to investigate, Inter alia, corruption in the Philadelphia Police Department. On March 26, 1974, the Attorney General of Pennsylvania established the Office of the Special Prosecutor by appointing respondent Walter M. Phillips, Jr., as Deputy Attorney General to investigate and prosecute police corruption in Philadelphia. The convening of the grand jury and the appointment of the Special Prosecutor were actions taken in response to a Report by the Pennsylvania Crime Commission on Police Corruption and the Quality of Law Enforcement in Philadelphia.
In June and July of 1974, the twelve policemen/petitioners were subpoenaed to appear before the grand jury. Each officer was represented by petitioner Anthony D. Pirillo, Jr., Esquire and/or by Mr. Pirillo's associate, Salvator J. Cucinotta Esquire. 2 As was customary, before any witness testified, Judge Takiff held an In camera session with the Special Prosecutor or his representative during which the Judge was informed as to the proposed scope of inquiry for these witnesses. It was revealed by the Special Prosecutor that each witness would be questioned about the conduct of other police officers, and in most cases, about the conduct of each other. Most of the officers had been named in the Crime Commission Report as persons who had taken bribes from the owners of Philadelphia bars.
Because the Special Prosecutor's office brought to Judge Takiff's attention the possibility of a conflict of interest in the multiple representation by Attorney Pirillo and his associate of all the petitioners/witnesses, the supervising judge deferred the testimony of these witnesses pending a determination of the question. After an evidentiary hearing on the conflicts matter, the judge decided that Mr. Pirillo and his associate, Mr. Cucinotta, must be disqualified from representing all twelve of the policemen/witnesses before the grand jury. His decision was based on the following grounds:
(1) The multiple representation interfered with the individual witness's right to effective counsel. For example, if witness A has information about witness B's criminal conduct, one attorney could not represent both. It may be in A's best interest for counsel to advise A to cooperate. However, this would operate to the detriment of B.
(2) The attorneys' fee compensation arrangement with the Fraternal Order of Police, by whom the petitioners/attorneys were referred and paid, constituted a serious question of conflict because of the Fraternal Order of Police's avowed public policy of strenuous opposition to any form of cooperation by individual policemen with the Special Prosecutor's office and with the investigating grand jury. This would not only interfere with the public function of the investigating grand jury but would also jeopardize the rights of the individual witnesses to effective assistance of counsel because the attorneys might be compelled to pursue the dictates of the F.O.P. which pays them rather than the best interests of the witness.
(3) There would be a serious detriment to the investigative function of the grand jury because of the multiple representation. With one attorney representing all witnesses in a particular area of investigation, the Special Prosecutor could not convince counsel to elicit cooperation of one witness since such cooperation might seriously implicate the attorneys' other clients in illegal activity.
In summary, according to the Special Prosecutor, the practical effect of the multiple representation was the creation of the conspiratorial 'stonewall' to the investigation shrouded by the interwoven attorneyclient relationships.
On a Petition for Assumption of Plenary Jurisdiction, 3 for a Writ of Prohibition and for Supersedeas, we granted a rule to show cause why the Writ of Prohibition and Supersedeas should not be granted.
The extraordinary Writ of Prohibition is issued as a matter of discretion to prevent a lower court from acting outside its jurisdiction and to prevent it from abusing its discretion. McNair's Petition, 324 Pa. 48, 187 A. 498 (1936). It is often used where the trial judge has acted in a blatantly unlawful manner. Commonwealth ex rel. Spector v. Shiomos, 457 Pa. 104, 32 A.2d 134 (1974); Commonwealth v. Caplan, 411 Pa. 563, 192 A.2d 894 (1963); Schlesinger v. Musmanno, 367 Pa. 476, 81 A.2d 316 (1951). There is the additional requirement, however, that there be an absence of other appellate remedies and the existence of extreme necessity before the writ will issue. West Penn Power Company v. Goddard, ---Pa. ---, 333 A.2d 909 (J-59 filed Mar. 18, 1975); Carpentertown Coal & Coke Company v. Laird, 360 Pa. 94, 61 A.2d 426 (1948). Accordingly, where an attorney's right to pursue his occupation by representing a particular defendant is curtailed by the lower court, we have held that a writ of prohibition is an appropriate remedy where the curtailment was unlawful, there being no adequate remedy for the attorney via appeal. Moore v. Jamieson,451 Pa. 299, 306 A.2d 283 (1973). Since the right to counsel is inextricably linked to the right of an attorney to practice law, the two rights are properly reviewed together. Cf., Moore v. Jamieson,supra, 451 Pa. at 307, 306 A.2d at 287. If, as we conclude, the rights of the petitioners were legitimately infringed upon, then the Writ of Prohibition will not issue.
In order to assess the legitimacy of the supervising judge's order, it is imperative that we assess the rights asserted and determine whether these rights may be balanced against competing state interests.
The twelve witnesses claim that the order of the supervising judge has impaired their right to counsel of their own choosing.
(Footnote omitted.)
Moore v. Jamieson, 451 Pa. 299, 307, 306 A.2d 283, 288 (1973).
In Commonwealth v. McCloskey, 443 Pa. 117, 277 A.2d 764 Cert. denied, 404 U.S. 1000, 92 S.Ct. 559, 30 L.Ed.2d 552 (1971), a witness who was to testify before the grand jury was granted the right to consult with counsel prior to and after his appearance, although the witness could not consult with counsel while in the jury room giving testimony. The witness could, however, refuse to answer a particular question and then come before the court with counsel to obtain a ruling as to whether the witness must answer the question. This precisely defined right to counsel before the grand jury struck a balance between society's interest in the orderly inquiry process of the grand jury and the individual's Fifth and Sixth Amendment rights. It is necessarily implicit that the witnesses who are petitioners here have a right to be represented before the investigating grand jury by counsel of their own choosing.
In the same vein, the petitioners who are attorneys contend that they have been denied the right to pursue the practice of law. Unquestionably, the right to pursue the occupation of one's own choosing may not be curtailed without due process of law. The interest in a profession, being akin to a proper right, may not be removed arbitrarily. Dent v. West Virginia, 129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623 (1889); Moore v. Jamieson, 451 Pa. at 308, 306 A.2d at 288.
But neither of these rights is absolute; both may be impaired or eliminated by state regulation which is designed to provide for overriding state interests or individual constitutional guarantees which are in conflict with these rights to counsel and to pursue one's profession. United States ex rel. Carey v. Rundle, 409 F.2d 1210 (3rd Cir. 1969); Moore v. Jamieson, 451 Pa. at 308--10, 306 A.2d at 288. See Kremer v. Shoyer, 453 Pa. 22, 37, 311 A.2d 600, 606 (1973) (Pomeroy, J., concurring).
In a third argument, the petitioners assert that the order of the supervising judge has infringed upon their freedom of speech, assembly and petition as guaranteed by the First and Fourteenth Amendments, citing National Association for the Advancement of Colored People v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), Brotherhood of Railway Trainmen v. Virginia, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964), United Mine Workers v. Illinois State Bar Association, 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967), and United Transportation Union v. State Bar...
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