Lattimer v. Johnson

16 Pa. D. & C.4th 334, 1992 Pa. Dist. & Cnty. Dec. LEXIS 200
CourtPennsylvania Court of Common Pleas, Bradford County
DecidedMarch 13, 1992
Docketno. 86FC000392
StatusPublished

This text of 16 Pa. D. & C.4th 334 (Lattimer v. Johnson) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bradford County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lattimer v. Johnson, 16 Pa. D. & C.4th 334, 1992 Pa. Dist. & Cnty. Dec. LEXIS 200 (Pa. Super. Ct. 1992).

Opinion

MOTT, J.,

HISTORY

The instant support action began on February 18,1986, when Ms. Terry Lattimer (the plaintiff) filed a support complaint alleging that Mr. Jerry Johnson (the defendant) was the father of Douglas Brotzman, a minor child. The defendant contested the plaintiff’s averments regarding paternity, and a trial was conducted, at which the defendant’s paternity was established.

On January 14,1992, a support conference was scheduled before a conference officer employed by the Bradford County Domestic Relations Office. Before the conference began, counsel for the defendant registered an objection to the plaintiff being represented by the same attorney who also serves as solicitor for the DRO. On the same day, January 14, 1992, the instant petition was filed.

By order dated January 14, 1992, upon consideration of the defendant’s petition, this court issued a rule re[335]*335tumable, and scheduled hearing thereon for January 16, 1992. Counsel for the defendant and the DRO solicitor both appeared before the court, and testimony was taken, with respect to the factual circumstances at issue. Oral arguments in support of the parties’ respective positions were also presented. Both parties have submitted briefs, as well. The defendant’s petition is now before the court for disposition.

DISCUSSION

The defendant argues that the plaintiff’s attorney of record must be disqualified from the instant case because his position as the DRO’s solicitor cannot be reconciled with his current role as an advocate before the same body. The defendant contends that the DRO’s solicitor’s representation of an individual support claimant, along with his representation of the DRO itself, creates an impermissible appearance of impropriety.

The solicitor, on the other hand, argues that the DRO is obligated contractually to provide legal services to support claimants. Thus, he contends, the representation of support claimants is, effectively, part of his job. The solicitor then cites Shah v. State Board of Medicine, 139 Pa. Commw. 94, 589 A.2d 783 (1991), and concludes that under Shah, a “commingling of functions” may be permitted where no prejudice to the litigants occurs, and where the roles of adviser and prosecutor have been “adequately separated from the adjudicatory function.” (Brief of Solicitor, p.5).

On our reading of Shah, however, it does not endorse dual representation of clients with potentially conflicting [336]*336interests, nor does Shah legitimate the representation of individual litigants before a judicial tribunal one also serves as legal adviser. Shah deals only with administrative procedure, and holds that the same counsel for an administrative agency may argue before the agency in opposition to a preliminary motion for supersedeas and advise the agency at a subsequent administrative hearing, as long as the counsel, in his preliminary argument, has not prejudiced the facts to be found at the hearing. Shah at 118, 589 A.2d at 796. Furthermore, in Shah, there was no question that the attorney was always representing the agency. Thus, the question in Shah only involved the amount of involvement one administrative agency’s lawyer may have in a particular administrative proceeding.

In contrast, the instant case involved adverse parties whose rights and interests are to be initially determined by a branch of the court from the facts and evidence it is presented with, and which branch of court arguably has an obligation to avoid even the appearance of impropriety. Thus, we do not believe that anything in Shah authorizes the DRO’s attorney to represent either of these parties before the DRO.

The solicitor explains his involvement in this particular case by asserting that he was instructed by the director of the DRO to represent the plaintiff here at the support conference “because of the existence of complicated legal issues.” Curiously, the solicitor then describes as “minimal” the involvement of legal counsel at the support conference. This characterization of the solicitor’s function is undoubtedly presented as a justification for his rep[337]*337resentation of the plaintiff here. In essence, he is arguing that no prejudice can occur as a result of his alleged dual representation, since “matters of permanent significance are not considered” at a support conference. We wonder, however, why the busy solicitor would bother to appear, and why the DRO director would instruct him to appear at such a proceeding if it is, indeed, as perfunctory a matter as he now describes it. Accordingly, we conclude that significant rights of the litigants are at issue here, and the potential for prejudice to the defendant’s interests, as a result of the solicitor’s alleged dual representation, does exist.

At the hearing on this issue, conducted on January 16, 1992, the solicitor testified that he is, in fact, the DRO’s solicitor, and that he does, indeed, regularly give legal advice to the DRO. Furthermore, he acknowledged that he participates in internal DRO staff meetings and in staff meetings conducted between the DRO and the court. He also affirmed that he had represented the plaintiff here during the paternity trial which preceded the instant support proceedings. Significantly, the director of the DRO, who also testified at the hearing, acknowledged that the solicitor in question does indeed act as the DRO’s “attorney.” The solicitor and the DRO director further affirmed that the solicitor does give legal advice to the DRO with respect to particular support cases, provided that the solicitor is not involved in these particular cases as an advocate for the claimant. Finally, the solicitor and the director testified that it is widely understood within the DRO that when a particular claimant is represented by the solicitor, the DRO “looks elsewhere” for its legal advice, relating to that particular case.

[338]*338While it may well be widely understood within the DRO office itself that its solicitor is not to be consulted on certain issues involving certain claimants, the testimony taken on January 16, 1992, indicates nothing to assure us that the general public, or support defendants in general, would appreciate this distinction. A support defendant, in any given case, may understandably conclude that his interests are not being adequately protected, or that he will not get a fair “hearing,” when he learns that the very attorney who represents the plaintiff at his support conference before the DRO, is the DRO’s solicitor and routinely gives legal advice to the conference officer on support cases just like his. In such a situation, the defendant would be justified in assuming, even if his assumptions were not borne out by the facts, that the solicitor’s endorsement of a particular factual or legal position may be accorded superior weight by the officer. “The test is not whether the court or other lawyers would view counsel’s action as having the appearance of impropriety, but whether a layman would view the actions of ... counsel as having the appearance of impropriety.” Bennett v. Bennett, slip op. to no. 84-15559, (C.P. Bradford 1984).

Thus, we would agree with the defendant that the solicitor’s representation of the DRO and individual support claimants at conferences held before the DRO does raise the appearance of impropriety.

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Related

Horn v. Township of Hilltown
337 A.2d 858 (Supreme Court of Pennsylvania, 1975)
Newtown Township Board of Supervisors v. Greater Media Radio Co.
587 A.2d 841 (Commonwealth Court of Pennsylvania, 1991)
Shah v. State Board of Medicine
589 A.2d 783 (Commonwealth Court of Pennsylvania, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
16 Pa. D. & C.4th 334, 1992 Pa. Dist. & Cnty. Dec. LEXIS 200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lattimer-v-johnson-pactcomplbradfo-1992.