Wright v. Williams

29 Pa. D. & C.4th 46, 1995 Pa. Dist. & Cnty. Dec. LEXIS 33
CourtPennsylvania Court of Common Pleas, Berks County
DecidedDecember 22, 1995
Docketno. 85-0982-00
StatusPublished

This text of 29 Pa. D. & C.4th 46 (Wright v. Williams) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wright v. Williams, 29 Pa. D. & C.4th 46, 1995 Pa. Dist. & Cnty. Dec. LEXIS 33 (Pa. Super. Ct. 1995).

Opinion

SCHMEHL, J.,

This opinion is written in support of this court’s order of August 21, 1995 disqualifying counsel for the defendant, Kathleen D. Dautrich, Esquire, and any attorneys associated with her, from representing the defendant in this matter. This opinion is written pursuant to Pa.R.A.P. 1925(a).

On June 25, 1985 the plaintiff filed a complaint for child support. On July 16, 1985 the defendant executed a denial of paternity. However, on March 18, 1986 the matter was dismissed without prejudice for failure to prosecute. On July 25, 1986 the plaintiff again filed a complaint for child support.

The child in question, Ikea Gonzalez, was bom on June 3, 1985. The results of the Roche Biomedical Laboratories Inc. HLA blood test, dated December 31, 1986 state that the defendant could not be excluded as the biological father and that the probability of pa[48]*48temity was 99.89 percent as compared to an untested man of the North American Black population.

On November 9, 1987, David R. Dautrich, Esquire was appointed as counsel for the defendant as it appeared that the defendant had insufficient funds to employ counsel to represent him.1 However, on April 6, 1988, Glenn D. Welsh, Esquire was appointed to replace David R. Dautrich, Esquire as counsel for the defendant. Kathleen D. Dautrich, Esquire was listed on the distribution list for the April 6, 1988 order. The certificate of readiness for trial filed August 14, 1989 shows Kathleen D. Dautrich, Esquire as the attorney for the plaintiff in this matter. Additionally, Attorney Dautrich filed a pretrial memorandum as “special counsel to domestic relations” on September 8, 1989.

As a result of the pretrial conference held September 15, 1989, the matter was set down for trial before the Honorable Grant E. Wesner on December 5, 1989. The hearing was continued to December 14, 1989, and then again to December 21, 1989. On December 15, 1989 a rule was issued upon the plaintiff to show cause why the complaint in support should not be dismissed with prejudice, but such rule was dismissed on December 21, 1989 and the court ordered that a date for trial be set at the earliest possible time.

Inexplicably, there was no action in the file from that point until September 1994 when an order was filed to change the case caption to reflect the defendant’s correct name. On April 13, 1995 a rule was issued upon the defendant to show cause, if any, why the petition to confirm the presumption of paternity should not be granted. The petition alleged that genetic tests [49]*49to determine paternity had been performed on all the parties and the results show that there was a 99 percent or greater probability that the defendant was the father of the child, and that 23 Pa.C.S. §4343, effective December 16, 1994, provides that a presumption of paternity is created in cases indicating a 99 percent or greater probability that the defendant is the father. On May 12, 1995, upon consideration of the petition to confirm the presumption of paternity and after hearing, it was ordered that the defendant was found to be the father of Ikea Gonzalez by a preponderance of the evidence.

The matter proceeded to a conference before a domestic relations conference officer in My 1995, but only the defendant appeared. The notes from the conference state that the defendant thought that the plaintiff may have died in a car accident.

On My 20, 1995 Kathleen Dautrich, Esquire entered her appearance on behalf of Joseph Williams. On August 1, 1995 the plaintiff filed a petition to disqualify Kathleen D. Dautrich, Esquire as defendant’s counsel in that she was a former special counsel to domestic relations and was the attorney in charge of the prosecution of the paternity matter in the above-captioned case on behalf of the plaintiff from April 1988 until March 1994. On August 3, 1995 all proceedings in the matter were stayed pending disposition of the petition to disqualify counsel. On August 21, 1995 this court issued an order disqualifying Kathleen D. Dautrich, Esquire and any attorneys associated with her from representing the defendant in this matter. The stay was then lifted on August 29, 1995. Kathleen D. Dautrich, Esquire, on behalf of the defendant, filed a notice of appeal of this court’s August 21, 1995 order on September [50]*5020, 1995. The defendant was granted permission to proceed in forma pauperis on October 17, 1995.

The comments to the Pennsylvania Rules of Professional Conduct urge that an objection by opposing counsel as to a conflict of interest involving counsel be viewed with caution as such an objection could be misused as a technique of harassment. See comment following Pa.R.P.C. 1.9; comment following Pa.R.P.C. 1.7, “conflict charged by an opposing party.” Furthermore, the preamble to the Rules of Professional Conduct, under the section “scope,” states:

“The rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.”

However, although resolving questions of conflict of interest is primarily the responsibility of the lawyer undertaking the representation, in litigation, a court may raise the question where there is reason to infer that a lawyer has neglected that responsibility, and where the conflict is such as to clearly call into question the fair or efficient administration of justice, opposing counsel may properly raise the question also. Pa.R.P.C. 1.7, comment “conflict charged by an opposing party.” There is nothing to indicate that opposing counsel has [51]*51requested Kathleen D. Dautrich, Esquire be disqualified as counsel purely to harass her or impede the proceedings. Rather, this court has grave concerns about the just administration of this case if it were to allow Attorney Dautrich to continue to represent the defendant in this matter.

A party seeking disqualification of their opponent’s attorney must establish that (1) a prior attorney-client relationship existed in the case between the moving party and opposing counsel; and (2) the matters involved in counsel’s present representation are substantially related to the subject matter of the former representation. Pennsylvania Power & Light Co. v. Gulf Oil Corp., 74 D.&C.2d 431, 433 (1975); American Can Company v. Citrus Feed Company, 436 F.2d 1125 (5th Cir. 1971). See also, Richardson v. Hamilton International Corp., 469 F.2d 1382 (3d Cir. 1972), cert. denied, 411 U.S. 968, 93 S.Ct. 2271, 36 L.Ed.2d 964 (1973). Applying this to the present case, this court’s order granting the motion to disqualify Attorney Kathleen Dautrich was proper.

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Cite This Page — Counsel Stack

Bluebook (online)
29 Pa. D. & C.4th 46, 1995 Pa. Dist. & Cnty. Dec. LEXIS 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wright-v-williams-pactcomplberks-1995.