Appendix — Schwartz v. Defender Ass'n of Philadelphia

ie

Judgment and Opinion of the Supreme Court

of Pennsylvania

In THE

SUPREME COURT OF PENNSYLVANIA

Eastern District

No. 102—January Term, 1972

Appeal from Order of the Superior Court, October Term,

1970, No. 989, Affirming Adjudication of the Court of

Common Pleas of Philadelphia County, Trial Division,

June Term, 1930, No. 1005.

In THE MATTER OF AMENDMENTS TO THE ARTICLES OF

INCORPORATION OF THE DereNDER ASSOCIATION OF

PHILADELPHIA

Appeals of Bernard L. Segal and Louis B. Schwartz

Oprtnion or THE Court

Firep: July 2, 1973

Pomeroy, J.

We are presented by this appeal with the question

whether the work of the Defender Association of Phila-

delphia in affording legal representation to indigent per-

sons accused of crime will be compromised and rendered

constitutionally ineffective by reason of the substantial rep-

resentation of the City of Philadelphia in the management

of the Association. Specifically, does a potential 50% de-

2a

gree of control of the governing board of the Association

by the City serve automatically to deprive the indigent

client of competent, disinterested counsel.

The Defender Association, a nonprofit corporation in

existence since 1934, applied to the court below in 1969 for

approval of certain amendments to its Articles of Incorpo-

ration. The Non-Profit Corporation Law’ provides that the

court of common pleas shall approve amendments to the

charter of such corporations if in the court’s opinion they

are “lawful, will be beneficial and not injurious to the com-

munity.” Objections interposed by appellants and others

were heard and considered, whereupon the court of common

pleas entered its order approving the amendments.’ On

appeal the Superior Court affirmed, per curiam, without

opinion, two judges dissenting.’ Defender Association of

Philadelphia Amendment of Articles of Incorporation, 219

Pa. Super. Ct. 309, 279 A.2d 303 (1971). We granted al-

locatur because of the importance of the question involved,

and now affirm.‘

2 Act of April 29, 1874, P.L. 73, § 42, as amended, 15 P.S. § 7707.

2 Appellants Segal and Schwartz are both members of the appellee

Association who voiced their opposition to the proposed amendments

at the appropriate meetings of the Association. Mr. Schwartz had

been also a director of the Association, but resigned from that posi-

tion because of the matters here in controversy. In the hearings

below the appellants represented themselves and certain other ob-

jectors to the proposed amendments.

* Judge Spaulding filed a dissenting opinion in which Judge

Hoffman joined.

* Appellate scope of review in an appeal from an order approving

articles of amendment of a nonprofit corporation is properly lim-

ited to whether or not the lower court committed an error of law

or a serious abuse of discretion. See Nottingham Fire Co. Charter

Case, 394 Pa. 631, 632, 149 A.2d 119 (1959) ; In re Elkland Leather

Workers’ Association, Inc., 330 Pa. 78, 198 A. 13 (1938).

3a

The facts as found by Judge McDevitt in his adjudica-

tion are not disputed. They may be summarized as follows:

From the time of its incorporation in 1934 until the mid-

nineteen sixties, the Association had been purely private

in character, deriving its funds from membership dues and

contributions from individuals and charitable organizations

such as the Community Chest and the United Fund. Until

the revolution in the field of constitutional law relating to

criminal procedure which began in the early part of the

last decade, the Association could function adequately with

the moneys so received. Commencing with the historic

decision of the Supreme Court of the United States in

Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed.2d 799 (1963),

however, the scope of judicially mandated representation

of the poor increased dramatically.’ The Association there-

5 Other decisions of the Supreme Court extending the rights to

counsel include Argersinger v. Hamlin, —— U.S. ——, 32 L.Ed.

2d 530 (1972) (extending the Sixth Amendment right to counsel

to defendants in any criminal case where imprisonment for an

term could be imposed) ; Coleman v. Alabama, 399 U.S. 1, 26 L.Ed.

2d 387 (1970) (defendants entitled to counsel at preliminary hear-

ings) ; Mempa v. Rhay, 389 U.S. 128, 19 L.Ed.2d 336 (1969) (hold-

ing revocation of probation and imposition of sentence to be a criti-

cal stage requiring assistance of counsel) ; In re Gault, 387 U.S. 1,

18 L.Ed.2d 527 (1967) (juveniles in delinquency proceedings held

constitutionally entitled to representation of counsel); Douglas:

v. California, 372 U.S. 353, 9 L.Ed.2d 811 (1963) (counsel must

be provided for any indigent defendant on the first appeal from

a conviction allowed as a matter of right). Cf. United States v.

Wade, 388 U.S. 218, 18 L.Ed.2d 1149 (1967) ; Gilbert v. California,

388 U.S. 263, 18 L.Ed.2d 1178 (1967); Miranda v. Arizona, 384

U.S. 436, 16 L.Ed.2d 694 (1966); Escobedo v. Illinois, 378 U.S.

478, 12 L.Ed.2d 977 (1964).

Our own Court has been diligent to protect the right to counsel

at various stages of the criminal process. See, e.g., Commonwealth

ex rel. Rambeau v. Rundle, —— Pa. ——, —— A.2d —— (March

9, 1973) ; Commonwealth v. Shechan, 446 Pa. 35, 285 A.2d 465

(1971); Commonwealth v. Tinson, 483 Pa. 328, 249 A.2d 549

(1969) ; Commonwealth ex rel. Firmstone v. Myers, 431 Pa. 628,

246 A.2d 371 (1968); Commonwealth v. Sliva, 415 Pa. 537, 204

4a

fore sought other sources of funding in order to continue

to provide quality defense services to the increasing num-

ber of indigents entitled to them. Initially the Association

was successful in obtaining significant financial assistance

through grants from the Ford Foundation, the National

Defender Project of the National Legal Aid and Defender

Association, the United States Office of Economic Oppor-

tunity (OEO) and voluntary contributions of the City of

Philadelphia. Thus, by 1967, the combined budget for Asso-

ciation operations, including representation of juveniles,

had risen to $600,000; of this amount $152,000 came from

the City.

In 1968 the still increasing need for legal defense services

and the termination of contributions previously received

for limited time periods from the Ford Foundation, OKO

and the National Defender Project combined to create a :

financial crisis for the Association. An effort to obtain

additional funds from the City was unsuccessful, and the

Association was compelled to plan for a reduction of ser-

vices. Contemporaneously, in November of 1968, a bill was

introduced in City Council proposing the creation of a

wholly new public defender program unrelated to that of

the Association, the chief administrative officer of which

would be appointed by the Mayor of the City of Philadel-

phia. The bill met immediate opposition from the Associa-

tion and from many other groups in the community who

were satisfied that throughout its existence the Association

had provided indigent citizens with independent legal de-

Sc aam

AI 20.

Sere eet etme a Ps Shy

2is*

A.2d 455 (1964) ; Commonwealth ex rel. Remericz v. Maroney, 415

Pa. 534, 204 A.2d 450 (1964); Commonwealth ex rel. O’Lock v.

Rundle, 415 Pa. 515, 204 A.2d 439 (1964). A review of federal

and state decisions following Gideon is contained in Comment,

Right to Counsel; Impact of Gideon v. Wainwright in the Fifty

States, 3 Creighton L. Rev. 103 (1970).

.

——

5a

fense services of the highest quality. There followed meet-

ings between representatives of the Association and the

City to search for a compromise approach which would

enable the Association to continue to provide all of the

constitutionally required legal defense services in Phila-

delphia. These negotiations resulted in a contract between

the Association and the City, entered into on January 28,

1969.

The contract was approved by a majority (19 to 16) of

the Board of Directors of the Association. It provides that

the Association shall provide counsel and necessary inves-

tigative and other services to indigents in various areas

of representation,’ and that the City shall compensate the

Association in amounts to be appropriated by City Council

from time to time.” The Board of Directors of the Asso-

ciation is to be reduced in number from 50 to 30 members,

10 directors to be chosen by the Mayor of the City of

Philadelphia with the approval of City Council, ten to be

chosen by the members of the Association, and the remain-

ing ten directors (called “community directors”) to be

chosen by agreement among a majority of the City directors

*The contract identified the following types of proceedings

wherein the Association’s services would be supplied:

(1) Juvenile delinquency ;

(2) Any indictable offense at any stage of the prosecution;

(3) Any offense cognizable before the Municipal Court;

(4) Post conviction proceedings ;

(5) Habeas corpus proceedings;

(6) Extradition proceedings;

(7) Probation and parole proceedings; and

(8) Appeals.

* For the fiscal year 1969-70 the Association budgeted $1,263,595

to provide the representation called for by the contract, of which

amount it was agreed that the City would provide $1,160,095 (about

92% of the budget).

6a

and a majority of the Association directors. Under the

contract the Board of Directors appoints the Chief De-

fender and the First Assistant Defender; the Chief De-

fender appoints such other professional and non-profes-

sional staff as may be necessary.°

As a result of the agreement between the City and the

Association, the public defender bill then pending in City

Council was not acted upon. It was to effectuate the con-

tractual provisions pertaining to changes in its organiza-

tional structure that the Association undertook to amend

its Articles of Incorporation, for that purpose seeking the

necessary approval of the court of common pleas.

There is no dispute that any plan to provide counsel

to persons who need representation in criminal proceed-

ings should be designed to provide counsel who is both

competent and independent. “The plan and the lawyers

serving under it should be free from political interference.”

® The agreement also contains the following additional provisions:

(1) The Chief Defender shall be a lawyer in active practice

before the courts of record of the County of Philadelphia

7 at least five (5) years’ experience in the active practice

of law.

(2) All employees shall be full-time except with the approval

of two-thirds of all members of the Board.

(3) The term of the contract shall be perpetual; provided, how-

ever, that either party may terminate it on June 30th of any

calendar year provided not less than ninety days written

notice of such termination is given. In addition, the Asso-

ciation is authorized to terminate the agreement upon thirty

days written notice “[i]n the event that the Association shall

determine that any such appropriation by the City [to com-

pensate the Association for its services under the agreement]

is insufficient.”

(4) The City shall have the right to audit the books and records

of the Association. For this purpose such books and records

shall be made available to representatives of the Finance

Director of the City and the City Controller at such reason-

able times as are required by any such representative.

7a

A.B.A. Project on Providing Defense Services § 1.4, at 19

(Approved Draft, 1968). The integrity of the relationship

between lawyer and client, requiring among other things

complete fidelity to the client’s interest, should be preserved

inviolate. Like any lawyer, a person chosen to represent

an accused indigent person may serve but one master—the

client. Independence of any plan to provide such services

can be assured “if and only if the. system is properly in-

sulated from pressures, whether they flow from an excess

of benevolence or from less noble motivations.” Id. § 1.4,

at 20 (Comment).° The question presented by the case

before us is whether the Association, as it will be reor-

ganized pursuant to the contract with the City, will be

able to render defender services which measure up to these

standards. We hold that the court of common pleas com-

mitted no error of law or abuse of discretion in finding

that on this record the question should be answered affirma-

tively.

In essence, appellants’ objections to the amendments are

that the appointment of one-third of the Association’s di-

rectors by the Mayor (“City directors”) and the selection

by those directors and the “Association directors” of the

final one-third of the Board (“community directors”) in.

effect gives the City 50% representation and thus poten-

tially effective control of the Association. This in turn,

it is said, will adversely affect the independence of Asso-

ciation attorneys and thus create an unconstitutional con-

flict of interest. It therefore follows, so appellants argue,

that the amendments are neither “lawful, beneficial or non-

*See also Equal Justice for the Accused 61, 71, 74-76 (Report

of a Special Committee of the Association of the Bar of the City

of New York and The National Legal Aid and Defender Associa-

tion, 1959).

8a

injurious to the community” as required by statute. The

conflict of interest is found in the fact that the Mayor ap-

points both the Commissioner of Police and the City Solici-

tor, a prosecuting official,’ whose interests as law enforce-

ment officers are presumed to be antithetical to those of

criminal defendants. We are unable to agree.

We are of course well aware of the line of conflict of

interest cases to which appellants refer us and which de-

clare that “the potentiality that [actual] harm may result,

rather than that such harm did result will require reversal.”

Commonwealth v. Werner, 217 Pa. Super. Ct. 49, 268 A.2d

176 A.2d 641 (1962) (emphasis in original). See also Com-

monwealth v. Wilson, 429 Pa. 458, 240 A.2d 498 (1968) ;

Commonwealth v. Werner, 217 Pa. Super. Ct. 49, 208 A.2d

195 (1970); Commonwealth v. Bostick, 215 Pa. Super. Ct.

488, 258 A.2d 879 (1969). These and other similar cases

invariably involve direct conflicts that arose in situations

in which defense counsel undertook to represent co-defen-

dants with differing interests." In the case before us, how-

ever, the potentiality of conflict of interest is not direct,

but is attenuated and speculative at best, as examination

of the proposed new organizational structure shows.

The Mayor appoints one-third of the members of the

Association’s Board of Directors. Even should each of

these City directors be obliged to follow, for political or

other reasons, the dictates of the Mayor in exercising his

1° The City Solicitor acts as a prosecutor in cases involving vio-

lations of some criminal ordinances (e.g., anti-weapon ordinances)

and also in cases of violation of mayoralty proclamations.

1 See A.B.A. Special Committee on Evaluation of Ethical Stand-

ards, Code of Professional Responsibility, Disciplinary Rules 5-105,

5-107(A), (B) (Final Draft, 1969) ; A.B.A. Project on Standards

for Criminal Justice, Standards Relating to the Defense Function

§ 3.5(b) (Tent. Draft, 1970).

9a

or her vote as a member of the Board, this would not give

the Mayor or the City control of the Association.” It is

appellants’ theory, however, that the manner of selecting

the community directors envisaged by the charter amend-

ments, viz., by agreement of a majority of the City and

Association directors, would effectively raise city repre-

sentation to 50%. This argument assumes, of course, that

the City group and the Association group each will select

one-half of the community directors and that each group

will automatically accept the nominations of the other. It

also assumes that those community directors will them-

selves be the creatures of the group which nominated them.

All this is sheer speculation. We have no reason to believe

that the Association directors, at least one of whose votes

is necessary for majority action, would be unaware of the

obvious harm that would result from the injection of im-

proper influence into the operation of the Association and

would accept nominees for community director seats on

the board if there were any indication that such nominees

would act merely as a rubber stamp for the Mayor. We

think it much more likely that both the Association directors

and the City directors would make and approve nomina-

tions of persons whose character, background and experi-

ence suggest qualification for the task of board membership

independent of any political predilections. |

Appellants argue that, in the same way that effective |

control of a business corporation can be had with owner-

ship of less than 50% of the outstanding shares,” so here

12 While appellants assume that the City directors would act in

concert on all matters, there is no evidence whatever in the record

that this would necessarily be so.

18 See generally L. Loss, Securities Regulation 770 (2d ed. 1961) ;

Berle, “Control” in Corporate Law, 58 Col. L. Rev. 1212 (1958).

10a

it would be possible for the City to control the Association

even though the City could dictate the votes of something

less than 50% of the Board of Directors. The analogy is

inapposite here where we are not dealing with a business

corporation controlled through stock ownership. The arith-

metic of control involved in the present case is simple in-

deed. In making a decision on behalf of the Association,

thirty votes may be cast by the Board of Directors; each

member of the Board has one vote; the ten votes of the

City directors, assuming they would vote in a bloc, would

obviously not constitute a majority and would not consti-

tute control of the Association.”

Furthermore, the Bylaws of the Association contain safe-

guards against the creation of an impermissible conflict of

interest. The Board of Directors must select the Chief

Defender and the First Assistant Defender by majority

vote.* The Chief Defender, in turn, has the power to ap-

14 Cf. United States v. Union Pacific R.R. Co., 226 U.S. 61, 95,

96 (1912), wherein the Court recognizes that although a large

corporation with many shareholders can effectively be controlled

through united ownership of less than 50% of the stock, a small

corporation cannot normally be controlled through ownership of

less than a majority of outstanding stock. See also H. Oleck, Non-

Profit Corporations, Organizations, and Associations (2d ed. 1965)

(“In a non-profit corporation [a control] agreement is rather futile

. .. Since each member ordinarily has only one vote, an agreement

of this kind would have no real effectiveness unless it included a

majority of the members.” See generally, Hornstein, Stockholders’

Agreements in The Closely Held Corporation, 59 Yale L.J. 1040

(1950) ; F. H. O’Neal, Close Corporations (1970).

15 Judge McDevitt, in his thorough and careful adjudication,

statec that it was his belief that the Chief Defender and his as-

sistani* should have the protection of ‘tenure’ in office .. . Anything

less will be a clear indication that the defender organization is

suspect. The Association must offer lawyers career service oppor-

tunity.” We agree. Later in his discussion, the hearing judge ob-

served that “[fJor the first time the Association will be in a posi-

tion to offer prospective members of the defender staff a competi-

tive and adequate salary or rate of compensation and hopefully a

career.”

EN ANE) Se CRT DMD OE OAT SARA DONTE INH BNE IE PENI A BPN

lla

point the Association’s professional, investigative, and

clerical staff. Unless two-thirds of the Board approve,

every Association employee must be full-time."* No em-

ployee of the Association is permitted to be a candidate

for public office, a member of any committee of a political

party, a member of a committee of a partisan political club,

or to take part in the management or affairs of any political

party or any political campaign.

In sum, then, the assumed attitude of antagonism to crimi-

nal defendants which lies at the base of the conflict of in-

terest charge must be transmitted from the Mayor and

City Council to a majority of the Association’s Board of

Directors, and thence from the Board to the Chief De-

fender. According to appellants’ scenario, the Chief De-

fender, acting for or under the influence of the Mayor and

the Board, would make decisions and influence staff attor-

neys to violate the standards of professional conduct by

acting in a manner contrary to the best interests of their

client. As the court of common pleas found, the record is

devoid of any concrete facts to support this hypothesis.

In contrast, there is ample evidence in the record to

sustain the lower court’s conclusion that the Defender’s

office under the new structure will not be infected ab initio

with a built-in conflict of interest.” It was found as a fact

%° The “full-time” employment requirement for Association staff

is an obvious recognition of the necessity for employee indepen-

dence. The City’s acceptance of this arrangement would seem to be

an indication of, its good faith.

17 We note in passing that the record reveals that the amended

articles of incorporation met with the approval of both the United

Fund of Philadelphia, a large contributor to the Association, and

the Board of Governors of the Philadelphia Bar Association. Each

organization indicated that it is believed that the amendments

would be beneficial and would not adversely affect the independence

of the Association.

12a

that in recent years a number of public defender systems

have been established in which management was placed in

a board of directors containing, as here, substantial repre-

sentation from both the public and private sector."* Such

“public-private” defender systems have been able to main-

tain their independence, Within the classification of public

defender systems are also included several other organi-

zational forms. Among these are the assigned counsel sys-

tem,’”® where generally counsel is appointed by the courts,

a strictly public program headed by a public official and

supported by public funds,” and private defenders who are

financed only by private donations. We recognize that a

conflict of interest may conceivably arise in any of these

programs. It is impossible to insure in advance against

all forms of influence which might bear adversely on the

quality and the independence of the defender services.

We believe that the lower court did not abuse its discre-

tion in holding thatthe organizational structure of the

Philadelphia Association provides adequate safeguards to

protect its independence. By today’s affirmance we do not

suggest that this structure thus approved is necessarily the

form of organization that will best withstand improper

pressure; we hold merely that there is sufficient evidence

%* See generally Equal Justice for the Accused (Report of a

Special Committee of the Association of the Bar of the City of

New York and The National Legal Aid and Defender Association,

1959) ; A.B.A. Project on Standards for Criminal Justice, Stand-

ards Relating to Providing Defense Services (Approved Draft,

1968) ; Silverstein, Defense of the Poor in Criminal Cases in Ameri-

can State Courts (1965); National Defender Project, Handbook ;

How to Organize a Defender Office (1967).

1 See, e.g., Alaska Rules Crim. Prac. 39; Ky. Rev. Stat. Ann.

§453.190 (1963) ; W. Va. Code—62-3-1(a) (1966).

2° See, e.g., Conn. Gen. Stat. Ann. §§50-8la, 54-80 (Supp. 1965) ;

Minn. Stat. Ann. §611.12 (1964).

13a

in the record to sustain the lower court’s finding that the

articles of incorporation, as amended, comport with the

requirements of the Non-Profit Corporation Law.”

Order affirmed.

Mr. Justice Roserts filed a dissenting opinion in which

Mr, Justice ManpERrNo joins.

** Our holding in no way precludes the possibility of judicial

relief in future if the occasion should arise. As only one example,

should it appear that pressure has been brought to bear on Associa-

tion attorneys to persuade their clients to forego jury trials or

appeals in order to avoid the cost to the City that they entail, a

clear case of unconstitutional conflict of interest would be made out,

not to speak of violations of the standards of professional responsi-

bility. Evidence of improper influence or pressure, whether overt

or covert, will trigger an appropriate judicial response.

l4a

Dissenting Opinion of Mr. Justice Roberts

[65]

In THE

SUPREME COURT OF PENNSYLVANIA

Eastern District

No. 102—January Term, 1972

Appeal from Order of the Superior Court, October Term,

1970, No, 989, Affirming Adjudication of the Court of

Common Pleas of Philadelphia County, Trial Division,

June Term, 1930 No. 1005.

In tHe Matrer or AMENDMENTS TO THE ARTICLES OF IN-

CORPORATION OF THE DEFENDER ASSOCIATION OF PHILADELPHIA

Appeals of Bernard L. Segal and Louis B. Schwartz

Fitep: July 2, 1973

Roserts, J.

I dissent from the majority’s holding that the instant

amendments to the Philadelphia Defender Association’s

articles of incorporation are “lawful”, “beneficial” and “non-

injurious to the community.” In my view, the changes are

distinctly to the contrary, and therefore do not comply

15a

with Non-Profit Corporations Act, Act of April 29, 1874,

P.L. 73, §42, as amended, 15 P.S. 47707. The amendments

approved by the majority will undoubtedly destroy the

necessary independence and non-political character of the

Association. In turn, the challenged amendments create the

inherent possibility of an unconstitutional conflict of inter-

est, or at best, the equally objectionable appearance of such

conflict.

Despite the majority’s repeated assertions that the Mayor

of Philadelphia will name only one-third of the Associa-

tion’s directors, the proposed amendments to the Defender

Association’s charter give the Mayor far more than this.

He can now directly appoint one-third of the Board (10),

and indirectly (through his ten appointees) appoint another

one-sixth (5), for a total of one-half (15) of the Board (of

30). This appointing power of the Mayor, coupled with

control of the funds and the power to terminate the con-

tract on June 30 of any year, vests in the Mayor clear and

realistic working control of the Defender Association.’

The Board, effectively under the control of the Mayor, ap-

points the Defender, who is to serve, with his assistants,

without a fixed tenure* and at the will of the appointing

authority.

The Mayor, however, also controls the appointment of the

Police Commissioner and the City Solicitor. Section 3-206

of the Philadelphia Home Rule Charter requires that the

Mayor approve the appointment of the Police Commis-

* For less than 50%, and in the absence of funding, see also Public

Utility Holding Company Act of 1935, §2, 15 U.S.C.A. §79b(a)

(8) (10% ownership of voting securities is presumptive control) ;

Investment Company Act, 15 U.S.C.A. §80a-2(a) (9) (25% is tanta-

mount to control) ; see generally 2 Loss, Securities Regulation 770

(2d ed. 1961).

? See footnote 6 infra, and the accompanying text.

‘ a

—) eee |

|

:

16a

sioner; the annotation to that section notes “(t]he Mayor

has a voice in the appointment process because the ultimate

responsibility of City administration is his.”

Section 3-203 of the Home Rule Charter gives the Mayor

the responsibility of appointing the City Solicitor, one of

whose functions is to investigate, “[w]ith the approval of

the Mayor, ... any violation or alleged violation within

the City of the statutes of the Commonwealth of Pennsyl-

vania or the ordinances of the City” and to “take such steps

and adopt such means as may be reasonably necessary to

enforce within the City such statutes and ordinances.”

Home Rule Charter §4-400(d). The annotation states

that while it “is not intended to transfer to the Law Depart-

ment the traditional powers of the office of the District At-

torney, . . . it does empower the Law Department... to

act in the law enforcement field.” See generally Specter v.

Bauer, 437 Pa. 37, 261 A.2d 573 (1970). Indeed, this

residuum of authority has been used to bring prosecutions.

See, e.g., Commonwealth v. Stotland, 214 Pa. Superior Ct.

35, 251 A.2d 701 (1969).

This governmental structure, whereby the Mayor not

only appoints the Police Commissioner and City Solicitor,

but also substantially controls the appointment of the De-

fender, raises serious questions as to the practical and

working ability of the Defender Association to give un-

divided loyalty to those it represents. Certainly present

is the real possibility that the Defender may be forced, or

appear to be forced, to accommodate interests (of the Police

Commissioner, City Solicitor, and perhaps ultimately the

Mayor) which may be in direct conflict with the defense

interests of those accused of crime. Since the City Solici-

tor and the Police Commissioner, and now, under the ma-

17a

jority opinion, the Defender, are accountable to the same

official—the Mayor— “ . . . might not a defendant with

reason say that he feared he could not get a fair trial?”

Tumey v. Ohio, 273 U.S. 510, 533, 47 S. Ct. 437, 445 (1927)

(emphasis added).

I.

The petition to amend the Defender Association’s articles

of incorporation, brought under the Non-Profit Corpora-

tion Act, Act of April 29, 1874, P.L. 73, §42, 15 P.S. §7707,

to succeed, must show that the proposed changes are “law-

ful . . . beneficial and non-injurious to the community.”

(Emphasis added.) Section 7707 of the Act requires the

proponents of an amendment to show affirmatively that

the changes are both “beneficial” and “non-injurious to

the community.” The Legislature mandated that no amend-

ment be allowed unless it improved or enhanced the organi-

zation’s service to the community. Totally absent on this

record is any such showing.

Despite the clear legislative directive for an affirmative

finding of benefit, the trial court, without such a ruling

nevertheless permitted the amendments. There was abso-

lutely no showing that the Association’s new structure,

which gives the City 50% of the Board’s membership and

control, would be, in any sense, an improvement over the

previously wholly independent and apolitical Defender As-

sociation. All that the proponents showed was that the

City’s funds were needed by the Association and that the

City would not make funding available without naming

one-half of the Board membership. Important as funds

are for the continuation of the Association, funding is not

the issue—the issue is and was whether the amendments

18a

(giving control to the Mayor) were “beneficial” and “non-

injurious to the community.” 15 P.S. §7707, supra. On

this issue the majority is in supreme error.

Since no adequate proof was offered by the proponents

on this issue (in fact, all of the testimony offered was to

the contrary), the amendments should be disallowed. That

controlling and uncontradicted testimony is set out in

pertinent part in Judge Spaulding’s dissenting opinion in

Defender Association of Philadelphia Amendments of Arti-

cles of Incorporation, 219 Pa. Superior Ct. 309, 313-21, 279

A.2d 240, 241-246 (1971) (dissenting opinion, joined by

Hoffman, J.).

II.

Moreover, the amendments are impermissible for the

more basic reason that they are not “lawful”, 15 P.S. §7707,

supra, since allowing control to pass to the Mayor creates

the inherent possibility of an unconstitutional conflict of

interest, or at the least, the appearance of impropriety.

Until today, this Court has been most vigilant in guard-

ing against the possibility that defense counsel with a con-

flict of interest will harm his client’s cause. We have here-

tofore held that “... the mere existence of such a conflict

vitiates the proceedings, even though no actual harm results.

The potentiality that such harm may result, rather than

that such harm did result, furnishes the appropriate cri-

terion... . The rule is not intended to be remedial of

actual wrong, but preventitive of the possibility of it.”

Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 48,

176 A.2d 641, 643 (1962) (emphasis added). Accord, Com-

monwealth v. Wilson, 429 Pa. 458, 240 A.2d 498 (1968).

Our focus on the “possibility” of harm is in recognition of

19a

the fact that it is often difficult to determine, with hind-

sight, exactly where and how the conflict of interest harmed

the client.

It may be that counsel was “effective” (Commonwealth

ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349

(1967) ), but could have been more effective had he not been

burdened with the conflict. See Whitling, supra at 49, 176

A.2d at 643; cf. Comment, “Conflict of Interests: Multiple

Defendants Represented By A Single Court-Appointed

Counsel,” 74 Dick. L. Rev. 241, 249 (1970). However, effec-

tiveness of counsel is not the test to be applied when deal-

ing with counsel confronted with a conflict of interest, or the

appearance of one. In such cases we have not deprived

the defendant of his liberty, since the right to effective

assistance of counsel (Gideon v. Wainwright, 372 U.S. 335,

83 S.Ct. 792 (1963)) “... is too fundamental and absolute

to allow courts to indulge in nice calculations as to the

amount of prejudice arising from its denial.” Glasser v.

United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467 (1942)

(emphasis added). “Jt is unchallenged that the Siath

Amendment guarantee of effective assistance requires the

service of a lawyer who is not obligated to serve conflicting

interests at the same time... .”” Commonwealth ex rel.

Gallagher v. Rundle, 423 Pa. 356, 359, 223 A.2d 736, 737

(1966) (emphasis added).

This Court has also heretofore wisely been concerned

with the possibility, inherent in a conflict of interest situa-

tion, of an appearance of harm. Courts have long been of

the view that “.. . justice must satisfy the appearance

of justice.” Offutt v. United States, 348 U.S. 11, 14, 75

S.Ct. 11, 13 (1954) (Frankfurter, J.). Indeed, it is of vital

importance that our system of criminal justice convey to

defendants the belief that they are being dealt with fairly.

20a

So too, “(t]he public must be satisfied that fairness domi-

nates the administration of justice.” Adams v. United

States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241

(1942).

In Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437 (1927), the

United States Supreme Court held violative of due process

a system for trying prohibition cases in which the mayor,

as judge, imposed fines on behalf of the village, and kept

the “costs” as his compensation. The Court emphatically

refused to look into whether the defendant, in fact, had been

harmed by this procedure. Id. at 535, 47 S.Ct. at 445.

Rather, the Court stated:

“With his interest, as mayor, in the financial condition

of the village, and his responsibility therefor, might

not a defendant with reason say that he feared he

could not get a fair trial or a fair sentence from one

who would have so strong a motive to help his village

by conviction and a heavy fine?”

Id. at 533, 47 S.Ct. at 445 (emphasis added). More than

three decades later the Court reaffirmed this view in Ward

v. Village of Moneroeville, Ohio, —— U.S. ——, ——, 93

S.Ct. 80, 83 (1972). The similarity between Tumey, supra,

and Ward, supra, and the facts presented by the instant

case is strikingly clear. The sense of justice and fairness

expressed in Tumey and Ward controls here as well and

requires similar treatment.

Certainly, an advocate who is free to pursue his client’s

interests is as essential an ingredient in the appearance

of justice as is the impartial judge. Cf. Anders v. California,

386 U.S. 738, 87 S.Ct. 1396 (1967); Gideon, supra; Com-

monwealth v, Jones, 451 Pa: 69, 301 A.2d 811 (1973) ; Com-

2la

monwealth v. Fletcher, Pa. ’ A.2d —,

—— (1973) (Roberts, J., dissenting). As the United States

Court of Appeals for the District of Columbia stated in

Suggs v. United States, 391 F.2d 971, 974 (D.C. Cir. 1968) :

“It is of importance in the interest of justice that the

final judgment against an indigent should not be com-

promised by the possibility that a different result

would have ensued if only he had the resources to re-

tain his own lawyer instead of being required to accept

counsel selected by the court. Much depends on a sys-

tem that avoids suspicion of such compromise, for rea-

sons that include awareness that where there is a basis

for such suspicion prospects of rehabilitation are

stifled, Justice must not only be done, tt must appear

to be done ....It is one thing for a prisoner to be told

that appointed counsel sees no way to help him, and

quite another for him to feel sandbagged when the

counsel appointed by one arm of the Government seems

to be helping another to seal his doom. ... [T]he

courts must do what can reasonably be done to leave

indigent prisoners with the impression that they have

been dealt with fairly.” (Emphasis added.)

In our adversary system of justice a defendant “... re-

quires the guiding hand of counsel at every step in the pro-

ceedings against him.” Powell v. Alabama, 287 U.S. 45,

69, 53 S.Ct. 55, 64 (1932). See Argersinger v. Hamlin, 407

U.S. 25, 92 S.Ct. 2006 (1972). The defendant must be

convinced that the “guiding hand” acts only in his interest,

unhindered by any divided loyalty. See McKenna v. Ellis,

287 F.2d 592 (5th Cir. 1961) (holding that representation

of a defendant by two attorneys who were candidates for

22a

jobs with the district attorney improper; accordingly, the

judgment of sentence was reversed). As the Fifth Circuit

said in McKenna, supra:

“We interpret the right to counsel as the right to effec-

tive counsel. We interpret counsel to mean not error-

less counsel, and not judged ineffective by hindsight,

but counsel reasonably likely to render and rendering

reasonably effective assistance. We consider undivided

loyalty of appointed counsel to client as essential to

due process.”

280 F.2d at 599 (emphasis added).

A defense lawyer who has conflicting interests can hardly

give the necessary appearance of undivided loyalty, regard-

less of how effective he may be in reality.

“(The indigent defendant is entitled to a lawyer who

can give to his client wndivided loyalty and faithful

service. A lawyer forced, or attempting, to serve mas-

ters with conflicting interests cannot give to either the

loyalty each deserves.”

Goodson v. Peyton, 351 F.2d 905, 908 (4th Cir. 1965) (em-

phasis added).

So too must be the case here, where public defenders, ap-

pointed and continued in office in large part by City Hall

and possibly appearing to be controlled thereby, will con-

ceivably be reluctant to provide the representation de-

manded by the Sixth Amendment. Clearly, the accused,

while being represented by the Defender Association, may

not feel “... that they have been dealt with fairly.” Suggs,

supra at 974.

23a

Although the American Bar Association’s Code of Pro-

fessional Responsibility warns against the very. conflicts

inherent in the proposed “partnership” between City Hall

and the Defender Association, the majority, paying no heed

to the sound advice of this prestigious body, sanctions the

inevitable appearance of impropriety.

“EC 5-21 The obligation of a lawyer to exercise pro-

fessional judgment solely on behalf of his client re-

quires that he disregard the desires of others that

might impair his free judgment. The desires of a

third person will seldom adversely affect a lawyer

unless that person is in a position to exert strong

economic, political, or social pressures upon the law-

yer. These influences are often subtle, and a lawyer

_ must be alert to their existence. A lawyer subjected

to outside pressures should make full disclosure of

them to his client; and if he or his client believes that

the effectiveness of his representation has been or

will be impaired thereby, the lawyer should take

proper steps to withdraw from representation of his

client.

“EC 5-22 Economic, political, or social pressures by

third persons are less likely to impinge upon the inde-

pendent judgment of a lawyer in a matter in which he

is compensated directly by his client and his profes-

sional work is exclusively with his client. On the other

hand, if a lawyer is compensated from a source other

than his client, he may feel a sense of responsibility

to someone other than his client.

“EC 5-23 A person or organization that pays or fur-

nishes lawyers to represent others possess a potential

24a

_ power to exert strong pressures against the indepen-

‘dent judgment of those lawyers. Some employers may

be interested in furthering their own economic, politi-

cal, or social goals without regard to the professional

responsibility of the lawyer to his individual client.

Others may be far more concerned with establishment

or extension of legal principles than in the immediate

protection of the rights of the lawyer’s individual client.

On some occasions, decisions on priority of work may

_be made by the employer rather than the lawyer with

the result that prosecution of work already undertaken

for clients is postponed to their detriment. Similarly,

an employer may see, consciously or unconsciously, to

further its own economic interests through the actions

of the lawyers employed by it. Since a lawyer must al-

ways be free to exercise his professional judgment

without regard to the interests or motives of a third

person, the lawyer who is employed by one to represent

another must constantly guard against erosion of his

professional freedom.”

American Bar Association Special Committee on Evalua-

tion of Ethical Standards, Code of Professional Responsi-

bility, EC 5-21-EC 5-23 (Final Draft, 1969) (emphasis

added) (footnotes omitted).

Not only does the Code of Professional Responsibility

i warn against “diluted” or “divided” loyalty, it also requires

that a client be given an:

4 “... opportunity to evaluate his need for representa-

i tion free of any potential conflict and to obtain other

counsel if he so desires.”

2 Code, supra EC 5-16 (emphasis added).

25a

Here, even after full disclosure of the possible conflict of

interest, the indigent defendant has no effective alternative

but to accept the representation of the Defender Associa-

tion. Such a conflict, which surely would not be tolerated

by a non-indigent defendant, will be unavoidable and un-

doubtedly acquiesced in by the indigent, having no other

recourse. Such differing standards, depending on wealth,

when dealing with the fundamental right to counsel, are

prohibited by the Constitution. Cf. Gideon v. Wainwright,

supra; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814

(1963) ; Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585 (1956).

ITI.

The majority asserts that the potential conflict of inter-

est will not materialize because vigilant watchdogs, like

the losing parties here, will act to insure the Defender’s

independence. Further, the majority offers the additional

suggestion that if improper political pressure is brought

to bear on the Defender Association, “an appropriate judi-

cial response” will be forthcoming. Such non-decisional

assertions are absolutely nothing more than sheer specu-

lation—one does not and should not structure an organiza-

tion to provide defense services burdened at its start with

the inherent possibility of a conflict of interest and then

hope that somehow outside forces and perhaps the courts

will neutralize the threat. Here, the “appearance of im-

propriety” condemned by the ABA Code of Professional

Responsibility, supra at EC 9-6, is ignored by the majority.

Can the community which the Defender Association

serves and the indigents it defends have confidence and

trust in an Association significantly controllable by the

Mayor, who also appoints the Police Commissioner and

City Solicitor whose interests are obviously those of the

prosecution and antithetical to the defense? This potential

conflict is even made more egregious by the reality of this

record which reflects that the City Solicitor, appointed by

the Mayor, has, in fact, also been appointed, by the Mayor,

to serve as a Director of the Defender Association.’ The

majority frames the possible conflict of interest as “specu-

lative.” Here, however, there is nothing “speculative”

about the appearance of divided loyalty and the possibility

that harm may result. The appearance of conflict is un-

deniable, where the Philadelphia Home Rule Charter gives

the Mayor responsibilities inconsistent with exercising

power over an independent Defender Association.‘

on a City Solicitor was appointed to the Board on January 20,

* Other obvious conflicts exist between the Mayor and the De-

fender Association. As the record amply demonstrates, it was un-

contradicted that prior to any negotiations (and as a condition

precedent thereto) with the Association, the Mayor insisted that

the Acting Defender, Martin Vinikoor resign. This demanded

resignation, proved by the opponents and unrefuted by petitioners,

was politically motivated, as Vinikoor had run for City Council, in

the preceding campaign, on a ticket opposing the Mayor.

The record also discloses that on June 10, 1969 (at this time, the

Defender Association was being primarily privately funded, in

substantial part, by the United Fund) the Philadelphia Bulletin

reported (on page 1) Police Commissioner (now Mayor) Rizzo’s

statement that he intended to stop police payroll deductions for the

United Fund, since the United Fund also supported the Legal Aid

Society. Commissioner Rizzo emphatically stated that organizations

that “fight the Police Department . . . won’t get a penny.” The

Philadelphia Bar Association, on June 16, 1969, roundly deplored,

by resolution, the Commissioner’s threat.

The Philadelphia Bulletin on August 27, 1969 (page 42) and on

August 29, 1969 (page 1), under the headline “Rizzo Sets Up Meet-

ing With Judge Carroll”, reported a meeting, in Mayor Rizzo’s

office, attended by the District Attorney, the Commissioner of

Police, the Mayor and several judges (including President Judge

Carroll), at which the judges were pressed to change their “enient”

27a

In view of these facts, an indigent defendant, being

represented by the Defender Association, may well assume,

regardless of the actual merits of a particular course of

conduct chosen by the Defender, that he is being “sand-

bagged” because “. . . counsel appointed by one arm of

the Government . .. [may seem] to be helping another

to seal his doom.” ‘Suggs, supra. In such circumstances,

justice will not “appear to be done.” Suggs, supra. For

many of our citizens, legal services has reaffirmed faith in

our government of laws. However, if we are to preserve

the strength of the program, we must make it immune to

political pressures and make it a permanent part of our

system of justice.” Message of The President (on the

Legal Services Corporation Act) To Congress, Cong. Ree.,

$6212 (May 5, 1971) (emphasis added).

IV.

The only attempted justification for the challenged

amendments advanced by the proponents is that 50%

mayoral control is necessary to insure that the funds

allocated by the City are properly expended. In essence,

the argument advanced by petitioners, and accepted by the

majority, is that since the City pays (as it is required to,

Argersinger, supra; In Re Gault, 387 U.S. 1, 87 S.Ct.

1248 (1967); Gideon, supra) it is entitled to and must of

necessity exercise control. Despite the fact that the City

sentencing policies. (These events, although included in the oppo-

nents’ brief, are not of record as they transpired after the hearing

in the trial court).

The above events can hardly be viewed by the community and

indigent defendants as an assurance that the City will in no way

attempt to influence the criminal defense of those unable to retain

private counsel.

28a

is obligated to insure that its funds are properly spent,

its involvement here is far in excess of that required to

meet this task. Cf. Commonwealth ex rel. Carroll v. Tate,

442 Pa. 45, 274 A.2d 193 (1971) (involving more than

$18,000,000 in Philadelphia funds).’

Uncontradicted testimony, including testimony of peti-

tioners’ witnesses (most importantly, that of the Court

Administrator) undeniably established that the amount of

control demanded by and granted to the City exceeds any

legitimate budgetary interests. As the Court Adminis-

trator made clear, “.. . existing procedure through which

his office channeled funds to the Association was neither

inefficient nor a burden upon that office.” Defender Asso-

ciation of Philadelphia Amendments of Articles of Incor-

poration, supra at 314, 279 A.2d at 242 (Spaulding, J.,

dissenting). Unrefuted testimony made clear that the City’s

legitimate concerns could be accommodated through con-

tractual covenants regarding the service to be performed,

audits and other fiscal supervision, plus an invitation for

any interested official to attend directors’ meetings. The

record also shows that in the more than 38 years that the

Association had been in operation, full information has

always been made available—no public official or respon-

sible community agency has ever claimed otherwise.

*In Commonwealth ex rel. Carroll v. Tate, 442 Pa. 45, 274 A.2d

193 (1971), where this Court ordered the City of Philadelphia to

appropriate approximately $2,500,000 in additional funds to the

Philadelphia Court of Common Pleas (in addition to approximately

$16,000,000 already appropriated) for fiscal year 1970, the City

at no time even suggested the need for any controls in any sense

similar to those here approved by the majority. Obviously the

usual government audits were sufficient there, as they are here, to

maintain fiscal integrity. There has been no suggestion to the con-

trary.

29a

Here, where the fundamental right to counsel (counsel

free from the appearance of a conflict of interest) exists,

the City’s action must be viewed as an “overly broad”

restraint on an indigent defendant’s Sixth Amendment

right to independent representation. Cf. Gideon, supra;

Goodson v, Peyton, supra. The “chilling effect” (on con-

fidence in the Defender’s undivided loyalty to his client)

produced by the City’s significant power of control of the

Association may be substantial. Cf. NAACP v. Button,

371 U.S. 415, 83 S.Ct. 328 (1963). Testimony by petitioners’

own witnesses indicates that “less drastic” means could be

utilized to insure fiscal integrity. Hence, the Defender’s

structure, today approved by the majority, is unconstitu-

tional as an overly broad interference with indigent defen-

dants’ Sixth Amendment right to counsel. Cf. Button,

supra; Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247,

252 (1960) ; Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct.

900 (1939). Although the City’s monetary concerns are

legitimate, these concerns “. . . cannot be pursued by

means that broadly stifle fundamental personal liberties

when the end can be more narrowly achieved.” Shelton,

supra at 488, 81 S.Ct. at 252 (footnote omitted).

V.

The majority’s error, in my view, is compounded by its

failure to give anything more than lip-service to the Amer-

ican Bar Association Project On Minimum Standards For

Criminal Justice, Standards Relating To Providing De-

fense Service (Approved Draft, 1968). These standards,

as the title indicates, devised as minimum guides for pro-

viding criminal defense services to indigent defendants,

are in direct conflict with the structure the majority today

approves.

30a

“The plan should be designed to guarantee the in-

tegrity of the relationship between lawyer and client.

The plan and the lawyers serving under it should be

free from political influence and should be subject to

judicial supervision only in the same manner and the

same extent as are lawyers in private practice. One

means for assuring this independence, regardless of

the type of system adopted, is to place the ultimate

authority and responsibility for the operation of the

plan in a board of trustees... .”

Standards, supra §1.4 (emphasis added).

The Commentary to Section 1.4 provides:

“A system which does not guarantee the integrity of

the professional relation is fundamentally deficient

in that it fails to provide counsel who have the same

freedom of action as the lawyer whom the person with

sufficient means can retain. Inequalities of this nature

are seriously detrimental to the fulfillment of the goals

of providing counsel. They are quickly perceived by

those who are being provided representation and may

encourage cynicism toward the justness of the legal

system and, ultimately, of society itself. Much of the

dispute concerning the merits of various systems has

centered on their capacity to guarantee professional in-

dependence. . . . [T]he necessary independent [can]

be guaranteed under any type of system, from public

defender to assigned counsel, 7f and only if the system

is properly insulated from pressures, whether they

flow from an excess of benevolence or from less noble

motivations. See EquaL Justice ror THE AccuseED 61,

67, 71, 74-75.

3la

“An independent governing board is the appropriate

method of control of such a system, [public defender]

Equa JUSTICE FOR THE ACCUSED 83-84.

“Whatever the type of system employed, placing

responsibility for its operation in a specially desig-

nated board outside the ordinary framework of state

or local government will assist in guaranteeing suffi-

cient independence and adequate supervision. It will

also help to ensure that the task of providing counsel

is not submerged in the welter of other problems of

government.

“Because the board would exercise general super-

vision over the policies and operations of an agency

composed of lawyers performing professional work,

the board should be composed of lawyers. See App.i-

CATION OF ComMuNITy Action For LeGaL SERVICES,

Inc., 26 App. Div. 2d 354, 274 N.Y.S.2d 779, 787-88

(1966).

“Prosecutors and judges should be excluded from

the membership of governing boards to remove any

basis for an implication that defense attorneys under

the system are in any way subject to the control of

those who appear as their adversaries or before whom

they must appear ....” (Emphasis added.)

a

§

Section 3.1 of the Standards, supra, states: :

“A defender plan should be designed to create a 4

career service. Selection of the chief defender and

staff should be made on the basis of merit and should :

be free from political, racial, religious, ethnic and

other considerations extraneous to professional com- :

32a

petence. The tenure of the defender and his staff

should be protected similarly. ...” (Emphasis added.)*

The Commentary to that Section (3.1) notes:

“[T]here is widespread agreement that it is essen-

tial that a defender be free from political influence.

The independence of the defender is fundamental to

both the fact and the appearance of zealous repre-

sentation of the accused. One of the chief recommen-

dations of the Special Committee of the Association

of the Bar of the City of New York and the National

Legal Aid Association was that the public defender

should be appointed and given tenure ‘in such a man-

ner as to eliminate or minimize political and other

influences which might affect his professional inde-

pendence and his loyalty to his client.’ Equa JUSTICE

FoR THE AccusED 31. See also id. at 92.” (Emphasis

added.)

It is clear that the amendments sanctioned by the ma-

jority fail to adhere to either of the above noted standards.’

Freedom from “political influence” quite patently does

not mean the kind of “City Hall” control, approved by the

majority. Further, the Mayor’s refusal to deal with the

then Defender Martin Vinikoor (see footnote 4, supra) can

* See also Uniform Law Commissioner’s Model Defense of Needy

Persons Act, §10(a)(1) (Defender’s term of office to be not less

than six years) ; National Conference on Criminal Justice, Standard

13.8 (January 23, 1973) (Defender’s term of office to be not less

than four years).

7See also National Defender Project, Handbook on How to

Organize a Defender Office (1967) (recommends providing “.. .

a screen between the defender and ‘City Hall’” and for minimizing

“|. . the influences of partisan politics” (p. 31) ).

33a

hardly be conceived of as an indication that the City’s

actions will be free from “political considerations.” And

finally, the City’s refusal to provide the Defender and his

assistants with tenure, is not only contrary to §3.1 of the

Standards, supra, and other authorities noted in footnote 5,

supra, but also is assurance that one acting in conflict

with the wishes of the Mayor can be removed at any time

by the Board of Directors, a Board substantially controlled

by the Mayor. (As noted above, the City Solicitor has been

appointed to the Board of the Association, despite the

recommendation of the Commentary to Section 1.4 of

the Standards, supra.) No justification for this flagrant

disregard of professional standards has been advanced by

the majority, and indeed, none can be imagined.

VI.

From July 1, 1971, to June 30, 1972, the Defender Asso-

ciation disposed of 14,099 criminal cases in the courts of

the City of Philadelphia. (Approximately 500 additional

cases were handled by the Defender in the United States

District Court.) Defender Association of Philadelphia,

38th Annual Report of The Directors 23 (1971-72). During

a comparable period, January 1, 1972, through December

31, 1972, the Philadelphia Court of Common Pleas disposed

of 21,727 criminal (including juvenile) cases. 1972 Annual

Report of the Philadelphia Common Pleas & Municipal

Courts 1. Assuming that the figures for these two twelve

month periods are comparable, the Defender Association

handles more than 63% of all criminal cases disposed of

by the Philadelphia Court of Common Pleas. The De-

fender’s monetary expenditure for the 1971-72 period was

approximately $2,000,000; $1,500,000 represents the amount

appropriated by the City. Defender Report, supra at 26-27.

34a

As previously noted, the City of Philadelphia is obligated

to provide free defense services for indigents accused of

crime. Argersinger, supra; In Re Gault, supra; Gideon,

supra. Accordingly, the City, even absent the control now

afforded it by the majority, is constitutionally required to

allocate funds for the representation of indigent defendants.

The City, having this affirmative duty, cannot escape it,

even if the amendments (as they should be) were disal-

lowed. As this Court made clear in Commonwealth ex rel.

Carrol v. Tate, supra at 52, 274 A.2d at 197, the judiciary

possesses “... the inherent power to determine and com-

pel payment of those sums of money which are reasonable

and necessary to carry out its mandated responsibilities,

and its powers and duties to administer Justice ... .”

Clearly nothing could be more central to the administration

of justice than counsel for the accused, and court appointed

counsel where necessary. Argersinger, supra; In Re Gault,

supra; Gideon, supra.

The majority, accordingly, has today given the City con-

trol in exchange for its contract to do that which it is legally

obligated to do, that is, to provide funds for the represen-

tation of those defendants who are unable to pay. The

losers in this transaction are unfortunately the citizens of

Philadelphia who have lost the services of a heretofore

wholly independent and non-politicized Defender Associa-

tion.

VI.

It is inescapably clear that the majority has ignored the

specific statutory language of the Non-Profit Corporations

Act, supra, and approved amendments that are neither

“lawful”, “beneficial” nor “non-injurious to the community.”

35a

15 P.S. §7707, supra. Additionally, the majority has paid no ©

heed to the strong public policy and constitutional consider-

ations involved in keeping the Defender Association free

from the spectre of external government and political pres-

sures. Instead, it has gone in the opposite direction. The

record makes clear to a firm and unquestioned certainty that

the amendments diminish the ability of the Defender Asso-

ciation to perform its primary objective of independent rep-

resentation for indigent defendants.

Today, the majority has given its aid to making the

Association considerably less effective and less indepen-

dent than it was prior to the amendments. This the ma-

jority has accomplished by compelling a “partnership” be-

tween the Defender Association and the Mayor of Philadel-

phia, a Mayor who at the same time is responsible for law

enforcement under the Home Rule Charter. Hence, the

Association cannot now be or appear to be professionally

independent and “free from political influence.” * Nor can

it be free from the inherent possibility of a conflict of inter-

est which may harm its clients. It is no longer a Defender

Association calculated to insure that there will always be at

least the “appearance of justice.”

The majority’s determination evokes earnest disagree-

ment and compels strong dissent.

Mr. Justice Manderino joins in this opinion.

8 “Nothing could now be clearer than that a professional legal

services program [or defender association], one with which the bar

can cooperate and support, must have an independent, non-political

base rather than be part of an agency [or city government] whose

outlook and direction change with political winds and fortunes.” 59

American Bar Association Journal 523 (May, 1973) (emphasis

added).

36a

Per Curiam Judgment and Dissenting Opinion

in the Superior Court of Pennsylvania

DeFrenverR ASSOCIATION oF PHILADELPHIA AMENDMENTS

oF ARTICLES OF INCORPORATION

Argued September 21, 1970. Before Wnricurt, P. J., Wat-

Kins, Montcomery, Jacoss, Horrman, Spavu.pine, and

Cercong, JJ.

Appeal, No. 989, Oct. T., 1970, from order of Court of

Common Pleas, Trial Division, of Philadelphia, June T.,

1930, No. 10005, in re Amendment to Articles of Incor-

poration of the Defender Association of Philadelphia; ap-

peal of Bernard L, Segal and Louis B. Schwartz, members

of the Association. Order affirmed.

Proceedings upon application for amendments of char-

ter of a nonprofit corporation. Before McDevirr, III, J.

Adjudication filed approving amendments to articles

of incorporation. Objectors appealed.

Louis B. Schwartz, with him Bernard L. Segal and Den-

mis Eismore, for appellants.

Edward W. Madeira, Jr., with him Vincent J. Ziccardi,

for Defender Association of Philadelphia, appellee.

Judas I. Labovitz, Thomas Gilhool and Thomas B. Har-

vey, Jr., for American Civil Liberties Union, intervenor.

Opinion Per Curiam, June 30, 1971:

Order affirmed.

37a

Dissentine Opinion By Spavutpine, J.:

I respectfully dissent.

Appellants, members of the Defender Association of

Philadelphia, and previous members of its Board, chal-

lenge the approval of certain amendments to the Associa-

tion’s charter by the Court of Common Pleas of Phila-

delphia.

I ‘

The Defender Association of Philadelphia traditionally

has been a “private” group engaged in the defense of indi-

gents accused of crimes. Prior to March 1969, the Associa-

tion had been operated by a fifty-man Board of Directors

elected by the dues-paying membership. Its financing came

from various sources, including the United Fund of Phila-

deiphia. When Gideon v. Wainwright, 372 U.S. 335 (1963),

established that local governments were constitutionally re-

quired to provide funds for the defense of indigents accused

of crime, the City began to supplement the Association’s

income. When it became apparent, in January 1969, that a

contribution of $1,250,000 would be necessary, the City Ad-

ministration determined that it would assume control of

the Defender operation. However, a proposed ordinance

(Bill 830), establishing a public defender office, with the

Defender to be appointed by the Mayor, caused consider-

able public indigation. As a compromise, the Association-

City contract was reached. Under this contract, the City

would not create a new organization, but would provide

the necessary operational funds for the Defender Associa

tion, which, in return, would amend its charter to restruc-

ture the Board of Directors: ten directors would be chosen

by the City, ten by the Association, and ten by the combined

group of twenty.

——

The Association’s existing Board approved this arrange-

ment by a 19-16 vote. On March 28, 1969, the Association

(proponents) submitted to the Court of Common Pleas a

series of amendments which made the folowing changes:

(1) a phrase permitting reference of clients by charitable

organizations was deleted (art. II); (2) the change in the

structure of the Board of Directors was added (art. VII) ;

(3) the article limiting yearly income receivable was de-

leted (art. XI). Objections were filed by appellants (objec-

tors). Judge Jonn J. McDevirt, III, held a hearing and ap-

proved the amendments in an “adjudication” filed on August

8, 1969.

II

The petition to amend the Association’s charter was

brought pursuant to the Pennsylvania Nonprofit Corpo-

ration Act, 15 P.S. 7707, which provides that the court shall

approve charter amendments if they are “lawful”. . .

beneficial and not injurious to the community”. The lower

court, after a lengthy summary of the respective argu-

ments stated that “[it] cannot accept the arguments that

the revised Charter would create a corporate monster out-

side the contemplation of the Nonprofit Corporation Law

which is clearly unlawful, not beneficial and would be in-

jurious to the community... . ” The court concluded by

saying: “We do not decide the problem before the Court

on the basis that the contract with the City requiring an

amendment of Articles of Incorporation represent [sic]

the better choice of two evils. Actually in our opinion the

Defender Association service to the community will be

more beneficial than in the past. Believing that the Board of

Directors will be ‘independent’ the Association will now be

adequately financed and in a position to meet the increasing

39a

demand for legal representation as required by the Constitu-

tion and court decisions.” (Emphasis added.)

Section 7707 of the Nonprofit Corporation Act states a

requirement for a positive finding that amendments be

“beneficial”, as well as the determination that they are

“not injurious”. This wording does not indicate a balanc-

ing of benefits and detriments but required a finding of

positive benefit. The term “beneficial” does not appear

in the analogous provision for amending a corporation

charter under the Business Corportion Law. 15 P.S. §§1801-

1810. The Legislature evidently intended that in the case of

non-profit corporations, the charter should not be amended

unless the amendment improved the organization’s service

to the community. At the very least, the term must require

a finding that the amendment is for the community good.’

In my view, the findings of the court below do not meet

the requirements of §7707. Of the amendments, the court

states only that they would not “create a corporate mon-

ster” which is “clearly unlawful” or “not beneficial” or

“injurious to the community”. It appears that what the

court found beneficial was not the amendments themselves,

but the total contractual arrangement. It is undeniable

that an increase in funds is beneficial to the Association,

but that does not meet the question whether the structural

change is in fact beneficial to the community. Since the

merits of the contractual arrangement were beyond the

scope of the amendment hearing below, the decision on

?'While a new optional provision of §7707 permits filing of

amendments to the charter of a non-profit corporation without court

approval, that is not determinative of the proper decision for the

court in this case. Further, the new provision does not overrule

the present section, and it is not at all clear what effect it will

have on the substantive standards enunciated for amending the

charter.

40a

the validity of the amendments should have been made

without reference to the underlying contract.

III

‘ On the issue of the propriety of the amendments them-

selves, the court below states that the burden of proof falls

upon the proponent Defender Association, and that this

burden was met. However, a review of the four volumes

of notes of testimony clearly substantiates objectors’ con-

tentions that the amendments were neither “beneficial” nor

“non-injurious to the community”. Rather, the testimony

of both parties indicates (1) no showing that the proposed

structure was necessary for accomplishing any beneficial

purpose; and (2) a net loss of benefit amounting to “injuri-

ousness”. In no sense does the testimony warrant the con-

clusion that the Association did in fact meet its burden of

proof.

Testimony on the need for the proposed structure, or

the purpose it was to serve, was at best inconclusive. Al-

though the circumstances suggest that the City’s intention

was to acquire virtual control over the Association’s policy,”

the proponents never explicitly stated that this was the

purpose of the amendments. Their position seemed to be

that the increased membership on the Board was only the

indirect result of the City’s need to oversee the use of its

financial contribution. In fact, however, their evidence

made no showing that such extensive representation was

needed.

The Court Administrator, Edward J. Blake, Esquire, tes-

tified for the proponents that there was a financial interest

involved. (Blake, R. 27, 30, 40.) But he also conceded that

=a find that such control would create an unconstitutional conflict

of interest. See part IV, infra.

4la

the Association had never been charged with financial mis-

management or inefficiency (R. 47), and that the existing

procedure through which his own office channeled funds to

the Association was neither inefficient nor a burden upon

that office. (R. 39.)

The objectors’ testimony showed that existing safeguards

and standard corrective procedures used by the City, were

more than adequate to protect its interest in fiscal super-

vision of the increased funds.

District Attorney Arlen Specter testified: “I think that

there are ways that the City can check on the expenditures

in a proper way to see to it that their interests are taken

into account; that there not be waste. For example, in my

office I have very substantial restraints which are imposed

under the law, and I think it could be applied to the De-

fender, in terms of every appointment that I make has

to be approved by personnel and by finance, and there are

classifications of expenditures, Class 100, 200, 300 and 400,

without getting into details, and I would say that they are

very onerous and that they are unduly restrictive, but cer-

tainly I think it could not be said that they are not re-

strictive enough. And I could illustrate it in a nut shell

by the recent experience I have had in seeking to raise the

salaries of my Assistant District Attorneys, where I con-

cluded that I had a clear cut right to do so and even though

I am an independently elected official who is not answerable

to the Mayor or the City Council, only to the voters, and

even though I had a very strong charter for authority for

what I was to do, the mechanism of City Government, the

Finance Department, was able through its own restraining

influence, which would exist to anybody the City pays, to

hold up that money for a protracted period of time. The

matter was litigated before Judge Bradley, who upheld it

and it was in the Supreme Court before the City abandoned

their position. So that there are ample safeguards which

would exist through normal City procedures to see to it

that there are appropriate expenditures, to say nothing of

the Controller’s Office... .”

Former Councilman David E. Cohen testified: “... I

don’t see the need for this. I have been going through

public budget hearings and Democratic caucus which in-

volved the contemplated expenditure in the next year of

much more money than I can begin to even grasp, have

any knowledge of what it means—something like three

quarters of a billion to a billion dollars. The money in a

number of instances passes through other organizations,

in some instances they are outright donations. The City

has representation. I am a member of the Pennsylvania

Academy of Fine Arts at the Board of Directors repre-

senting the City, but I sit as one member of the Board

of Directors of some 25 or 30. I go over carefully all of

the financial statements and the minutes of the meetings,

but we don’t have any kind of representation which gives

the City the sense of realistic control. At the same time,

I feel my responsibility deeply with respect to whatever

contribution of City monies is involved, to see that they

are expended in the best possible way. ... I don’t know

why the City ought not to have some members on the

Board of Directors, either voting or ex officio, who make

it their business—as most of the City Council representa-

tives do now who are assigned to membership on the

Board of Directors, who make it their business to keep

abreast, to raise with other Councilmen, to raise with the

organization, any questions they have with respect to pol-

icy. Then, in addition, the City has the full opportunity

43a

each year to subject at public hearings the officers of these

organizations to whom the City is contracting money, to

raise any question of policy as to what the organization

does and how it utilizes City funds. So it seems to me that

we already have established traditionally a very fine mech-

anism that could work here and could at the same time

move in the direction of achieving the maximum possible

independent kind of representation consistent with some

basic safeguarding of the City’s interests in the large sums

of money to be invested here.” (R. 609-612.)

Former Councilman Henry Sawyer also presented exten-

sive testimony showing that the City’s usual treatment of

“purchase of service contracts” did not involve anywhere

near the amount of representation demanded here. (R.

509-510.)

As to the injurious nature and undesirability of the new

arrangements, the objectors presented striking testimony

which was not in any way contradicted by the proponents.

As well as District Attorney Spector, former Councilmen

Cohen and Sawyer, cited above, the objectors’ witnesses

included such disparate public figures as First Assistant

District Attorney Richard Sprague, Professor Norman

Dorsen of the New York University School of Law and

Martin Vinikoor (the former Chief Defender whose resig-

nation the City made a condition precedent to contractual

negotiations).

The following testimony was particularly pertinent: For-

mer Councilman Cohen: “I think that the kind of influence

that City government should have, naming half of all

those that are being named—that is the 10 by the City as

against the other 10 and, as I understand, that those 20

naming the third set of 10, whom I would assume would

ek’ eric oe BES

CRS AS ses ee RSE F

OSes Bests

44a

at least half represent the City and perhaps half represent

whatever interest there are, it seems to me that that

degree of control destroys the whole concept of independent

representation. . . . I think it places someone under the

great strain and I think it denies the defendant the kind

of independent representation he ought to have in the form

of a lawyer who is completely fearless at the Bar and

dedicated within the limits of legal ethics to a zealous, out-

spoken, forward defense of his client.” District Attorney

Specter “Q. Just rephrasing the question, considering the

proposed structure of the Defender Board with the role

of the City as I have just indicated to you, being one-third

of the members appointed by the Mayor and that one-third

having a chair in the decision as to another third, do you

consider that to be a desirable arrangement with regard

to the influence or power of the City of Philadelphia, vis-a-

vis the Defender Association? A. I think that arrange-

ment is undesirable ... A. Well, Judge McDevitt, I think

that a Defender Association should operate to give inde-

pendent representation to those who must have representa-

tion at public expense. I think it should be totally non-

political. I think it should be operated with a view to merit

selection of Assistants, with a view to an efficient operation

and with a view to a professional operation without any

outside strains to regulate it in any way. ... What I have

seen of organizations which have governmental strains and

which are subject to the regulation of the Mayor’s office

and the City Council, to put it directly, it has not fulfilled

that criterion. Q. In regard to one of your standards, that

it be an independent form of representation, what is the

danger, if any, that you see in having Assistant Defenders

who may be appointed either through political influence

or appointed because of political approval of their selection

45a

has been involved? A. Well, the problem that I see is that

if you have political control over the Defender’s Office, so

that somebody in a high position can dictate who is going

to get the job, then you do not get the best man to start

with; you do not have the ability of his supervisor to

regulate his work in terms of his hours, in terms of the

absence of a private practice, which I think is indispensable

to run an office of this sort; you do not have unfettered

discretion on his part, because he has allegiance to those

who have employed him; and you do not have the un-

fettered ability of the man in charge to see to it that he

does his job. .. . Because if there are political appointing

powers and there are political factors, they lurk in the

background and have no place in either the prosecution

or defense of criminal cases. . .. Q. Based upon your ex-

periences with municipal governments, in a sense a munici-

pal official and dealing with a municipal official, do you

know of any legitimate City of Philadelphia interest that

requires the City of Philadelphia to take the share of con-

trol of the Defender Association that this proposed con-

tract and these proposed amendments set forth? A....

I think that the proposal gives too much control to the

City in terms of the nature of legitimate concern and the

proven ability of the Defender Association to operate. ...”

Assistant District Attorney Sprague “Q. Now, from the

standpoint of having been at one time a Defense Counsel

and now being a Prosecutor, being aware of what some of

the problems that the Defense Counsel faced, do you be-

lieve that the measure of City involvement in the operation

of the Defender Association as now proposed by these

amended articles would possibly have or in fact have some

effect on the judgment or independent judgment of Assis-

tant Defenders trying cases? A. I think it could. The

46a

basis of my answer is that again I’m aware of the extent to

which, say, the Police Department, people from the City

Administration, are interested in—from the Prosecutor’s

side, we call it the war on crime. And to the extent that the

Police, through whatever levels of people in the Adminis-

tration could perhaps have a say over policies by those

defending people we’re warring on, and there in my opinion

will be a reaching into that area and intimidation getting

people to back off certain action that they might otherwise

take, and I think and I feel that the people employed un-

fortunately are not always the most resolute and if they’re

aware of the powers over them, they might not take as

forthright a stand as they otherwise would if they were

completely independent.”

Further, it is noteworthy, that proponents’ witnesses

did not refute any of the above testimony. In fact, they

must be taken as further substantiating objectors’ conten-

tions. Thus, Edward J. Blake, Esquire, testified: “Q. Are

you aware that the City of Philadelphia through the City

Solicitor’s Office has asserted and that there has been an

opinion in the Court of Common Pleas of Philadelphia

that the City may prosecute violations of the Mayor’s ordi-

nance—the Mayor’s emergency ordinance powers as well as

the District Attorney may prosecute those particular crim-

inal actions? Are you aware of that, sir? A. Well, I’m cer-

tainly aware of it, yes. Q. And are you aware, therefore,

that the City Solicitor could very well be appearing in

eases where indigent defendants charged with violation

of the Mayor’s proclamations are represented by the De-

fender Association? A. Yes, indeed. Q. Do you not see

some conflicts of interest where the Defender Association

Board is appointed one half by the May$r with the ap-

47a

proval of Council and the prosecutor in those cases, the

City Solicitor, is appointed by the Mayor with the approval

of City Council, and the Police Commissioner, whose offi-

cers are the arresting officers, is appointed by the Mayor

also? A. No. I believe that the remainder of the Board,

being appointed by some officers other than the Executive,

would give an independent character to the Association.”

(R. 56-58.) (Emphasis added.) . ..

Other testimony presented by the proponents is also

revealing. The testimony of Pace Reich, Esquire, an As-

sistant City Solicitor, and Herman Pollock, a former Chief

Defender, follows:

Pace Reich testified: “Q. Isn’t the reason, as a matter

of fact, each and everyone of the corporations that you

picked off yesterday, Port Development, Industrial Devel-

opment, Food Distribution Center, Housing Development

Corporation, were set up in the particular manner they

were set up to enable the City to have more flexibility in

dealing with these areas than the City would have under

the charter provisions which in many areas would make

it difficult to negotiate contracts and agreements? A. I

think that’s a major consideration. I don’t think I’m capa-

ble of going into all the considerations, since many of those

were set up by the other persons and I did not—was not

involved in it. I was involved in the setting up of both

Bicentennial Corporation and the Port Corporation, and

while it is hard to determine what was in my mind as to

why we needed the representation, J think as a general

matter I can say it's because the City had a very substan-

tial overall interest in that particular activity, just as I

conceive that they have a substantial overall interest in

this activity.” (R. 638-639.) (Emphasis added.)

POI

48a

Herman Pollock testified: “. .. Let me say right now

that I am in agreement with a great deal that has been

said with regard to the type of services that must be sup-

plied, and as a member of the negotiating committee deal-

ing with the City, the members of the committee and my-

self fought hard to see that there was the kind of indepen-

dence which would make this a viable organization and one

which would be as free from control, political, judicial or

economic, as we could possibly make it. We arrived at

this not because it’s the best system. I don’t think it is

at all. I would like to have the government give $1,200,-

000.00 to the Defender organization as it now is, just as

Mr. Schwartz and Mr. Segal would. . . . Now, if you are

going to get somebody there who isn’t decent, if you are

going to get a corrupt City government, ...” (R. 590-591.)

None of the proponents’ witnesses in any way contra-

dicted any of the objectors’ claims. Most importantly,

there was no disagreement with the objectors’ basic con-

tention that the Defender must have the “freedom from

political influence” emphasized throughout the American

Bar Association’s Standards Relating to “Providing De-

fense Services” (Standards drafted by a committee headed

by Chief Justice Burcer, and including Chief Judge Hastie

of the Third Circuit Court and Herman Pollock).

Section 1.4 of those Standards states: “The plan should

be designed to guarantee the integrity of the relationship

between lawyer and client. The plan and the lawyers serv-

ing under it should be free from political influence and

should be subject to judicial supervision only in the same

manner and to the Same extent as are lawyers in private

practice. One means for assuring this independence, re-

gardless of the type of system adopted, is to place the

49a

ultimate authority and responsibility for the operation of

the plan in a board of trustees... .” (Emphasis added.)

At no time did proponents’ witnesses disavow these

standards which unequivocally require that “the plan” as

well as the lawyers be free from political influence. Rather,

these witnesses continually attempted to reconcile the pro-

posed Defender Association charter amendments to the

ABA standards by appealing to “practicality”. As stated

above, neither “practicality” nor ‘the desirability of ade-

quate financing is of concern in this case.* The issue is

whether the new structure does in fact meet the “beneficial

and non-injurious” requirements of §7707. I find that it

does not.

IV

Section 7707 also requires that the proposed amendments

be “lawful”. The term “lawful” must be interpreted as re-

quiring not only that no illegal corporate activity be au-

thorized, but also that the authorized corporate activity

conform to the requirements of the Constitution.

The lower court’s adjudication characterizes objectors’

complaint that the proposed structure creates an unconstitu-

tional conflict of interest as merely “speculative”, and states

that the question of “adequacy of defense counsel including

conflict of interest” can be raised case by case in collateral

proceedings. It was error to treat conflict of interest as

part of adequacy of counsel, since our courts have ap-

proached these matters quite differently. On adequacy of

counsel, actual harm must be shown, and the standard is

*In oral argument before this Court, both parties stated that

the City would continue to fund the Defender Association regard-

less of the outcome of this litigation.

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Pers fos) CUE ae Pe

Spee tea iE PRE ee

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50a

whether counsel’s chosen course was reasonable in light of

the alternatives. Commonwealth ex rel. Washington v.

Maroney, 427 Pa. 599, 235 A, 2d 349 (1967). This can only

be determined on a case by case basis.

On conflict of interest, however, the question is not

whether harm has been caused, but whether defendant’s in-

terests were represented by counsel. The very essence of

Gideon was to make the right to representation absolute

rather than dependent on a showing of actual harm. In our

determinations on conflict of interest, “The potentiality that

such harm may result, rather than that such harm did result,

furnishes the appropriate criterion.” Commonwealth ex rel.

Whitling v. Russell, 406 Pa. 45, 48, 176 A. 2d 641 (1962).

(Emphasis in original.) The claimant must “at least show

the possibility of harm”, Commonwealth v. Wilson, 429 Pa.

458, 240 A, 2d 498 (1968). This possibility may be shown

either by the inherent inconsistency of positions represented

by counsel, or by specific facts indicating that counsel fa-

vored one defendant over another. Only the second type of

conflict requires a case by case factual determination.

This Court has been particularly stringent in scrutiniz-

ing representation for both inherent and specific conflict.

See Commonwealth v. Werner, 217 Pa. Superior Ct. 49, 268

A. 2d 195 (1970) (conflict arising in failing to call a co-de-

fendant who could exculpate appellant) ; Commonwealth v.

Bostick, 215 Pa. Superior Ct. 488, 258 A. 2d 872 (1969)

(conflict arising from counsel representing two co-defen-

dants, one of whom pleaded guilty and one of whom pleaded

not guilty to charges upon which they were jointly in-

dicted) ; Commonwealth v. Cullen, 216 Pa. Superior Ct. 23,

260 A. 2d 818 (1969) (conflict of interest at sentencing) ;

Commonwealih v. Calvert, 216 Pa, Superior Ct. 221, 263

A. 2d 770 (1970) (concurring and dissenting opinion by

5la

Horrman, J., joined by Spauipine and Cercong, JJ.) (con-

flict arising from counsel noting Calvert’s longer record

in a plea for greater consideration for his co-defendant).

Here, there is an inherent conflict of interest. Proponents

contend that this allegation is mere conjecture. But the

testimony clearly established, again without contradiction,

that the City’s interests diverge sufficiently from the Asso-

ciation’s interest in providing strong, effective representa-

tion to create, “the possibility of harm” required by Wilson,

supra. The City’s insistence upon Mr. Vinikoor’s ouster as

head of the Association, is an example. There was no ques-

tion that Vinikoor was eminently well qualified for the posi-

tion of Defender. Rather, opposition was based upon poli-

tical reasons. Following Vinikoor’s resignation, the City

concluded the agreement with the Association resulting in

the charter amendments described above.

Other specific public instances which indicate the errone-

ous nature of characterizing objectors’ claims as “specula-

tive” are: the former Police Commissioner’s stated inten-

tion (June 10, 1969) to discontinue police payroll deductions

for the United Fund because the Fund allegedly supported

organizations which oppose the police department policies

and his attack on Community Legal Service attorneys in-

volved in police brutality cases.

Previous cases on conflict of interest have dealt with

situations in which a single attorney is defending two

clients at the same trial. Here the situation is even more

potentially harmful. There is no assurance that the harm

which may ensue will arise in a manner which even calls

upon judicial supervision. As compared with the question

of conflict of interest in a particular trial, here there is no

transcript for the court to consider. We have no way of

assessing when and to whom the harm may be done. How-

52a

ever, the risk of harm that may ensue—despite the best

intentions of all concerned—and which will not necessarily

be subject to correction, is too great to permit the “wait-

and-see” approach suggested by the lower court.

Constitutional rights cannot be placed in jeopardy by

any group of individuals no matter how earnest and well-

meaning they may appear to be. In Tumey v. Ohio, 273 U.S.

510 (1925), the Supreme Court held that a judicial officer

could not constitutionally be permitted to have a pecuniary

interest in the outcome of convictions :ather than acquittals.

The Court held that such an interest must disqualify the

judicial officer notwithstanding. “ ... the argument that

men of the highest honor and the greatest self-sacrifice could

carry it on without danger of injustice. Every procedure

which would offer a possible temptation to the average man

... Or which might lead him not to hold the balance nice,

clear and true between the state and the accused, denies

the latter due process of law.” (273 U.S. at 532.)

The instant case presents such a danger, and it is likely

to arise in situations of which our courts could not be cog-

nizant. Numerous decisions are made involving the manner

and method of representation which would necessarily en-

tail additional expense for the community: notably, refusal

to plead guilty, demand for jury trials, and diligent prosecu-

tion of appeals. The City’s representatives would be forced

to take budgetary matters into consideration when reach-

ing decisions of this type.

Further, there are political questions that inevitably

arise in planning the overall representation of indigent de-

fendants. Conscientious defense would require strong at-

tacks on certain official policies (e.g., courtroom practices,

probation services and the adequacy of pre-trial detention

53a

facilities.) For example, the problem of the unbearable

summer heat on the 7th floor of City Hall was only resolved

by the Association’s “threat” to demand more jury trials for

its clients. It is not conjecture to state that the City’s rep-

resentatives would attempt to minimize such tactics when-

ever a sufficient threat to their policies is presented. The

potential for harm through conflict of interest is so great,

that the present structure should not be allowed to stand.

Vv

Since Gideon, supra, the courts have attempted to in-

sure effective assistance of counsel by imposing additional

safeguards. Commonwealth v. Baker, 429 Pa. 209, 239 A.

2d 201 (1968); Commonwealth ex rel. Washington v.

Maroney, supra; Commonwealth v. Wilson, supra, l-

though these efforts have been geared directly to the par-

ticular attorney-client relationship presented in each situa-

tion, the constitutional standard enunciated by the Federal

and Pennsylvania courts must be applied to the organiza-

tion assuming the obligations of providing counsel. The

Defender Association exists solely to provide the effective,

independent counsel mandated by the above decisions.

We cannot allow the City to severely restrict that very in-

dependence and effectiveness by placing an unjustifiable

condition upon its financing of that organization. That this

condition is in fact arbitrary is amply supported by the

testimony showing that the City’s legitimate financial in-

terest is adequately provided for by other means.

I would reverse the order of the lower court and remand

the case with instructions to determine the extent of City

representation consistent with its legitimate fiscal and

auditing role.

HorrMay, J., joins in this dissenting opinion.

54a

Adjudication of Court of Common Pleas

of Philadelphia

In THR

COURT OF COMMON PLEAS

OF PHILADELPHIA COUNTY

Crvm Taran Division

Common Pleas Court No. 5

June Term 1930

No. 10005

~~

In Re:

AMENDMENTS OF ARTICLES OF INCORPORATION OF DEFENDER

ASSOCIATION OF PHILADELPHIA.

>

ADJUDICATION

McDevurt, J.

The proposed amendments of Articles of Incorporation

of Defender Association of Philadelphia was referred by

the President Judge of the Court of Common Pleas to

Judge John J. McDevitt, 3rd, for a hearing and determina.

tion.

Testimony of proponents and objectors was taken on

four days in April and May of this year totalling some 643

pages of transcript. This seemed to offer a full opportunity

for the interested parties to express their views and opin-

ions. There was agreement that the limited number of wit-

nesses called would be sufficiently representative of the com-

munity and present a cross-section sampling of views and

responsible opinion in the City of Philadelphia.

The Court has been assisted in arriving at a decision by

the professional advocacy of counsel for the proponents

and objectors, Certainly the same observation applies to

the witnesses as well as some of whom traveled a consider-

able distance.

On behalf of the Defender Association the following tes-

tified :

Joseph N, DuBarry, 4th, Esq.—President

Edward J. Blake, Esq.,—Philadelphia Court Adminis-

trator speaking for President Judge Vincent A. Car-

roll of the Court of Common Pleas as well

John J. Cleary, Esq., Deputy Director of the National

Defender Project, a grant activity of the National

Legal Aid and Defender Association.

Herman Pollock, Esq., for many years the Defender

and more recently holding the title of Counsel to

the Association.

Pace Reich, Esq., Assistant City Solicitor

On behalf of the objectors appeared:

Arlen Specter, Esq., District Attorney of Philadelphia

Richard Sprague, Esq., his First Assistant

Martin Vinikoor, Esq., former Defender

Stanford Shmukler, Esq.

Jack B, Justice, Esq., Chairman of the Southeastern

Pennsylvania of Americans for Democratic Action

Edmund E. DePaul, Esq.

seen

Norman Dorsen, Esq., Professor of Law, New York

University

Henry W. Sawyer, 3rd, Esq.

Stephen A. Sheller, Esq.

Alvin E. Echols, Jr., Esq., Executive Director of the

North City Congress

David Cohen, Esq., City Councilman

The Defender Association of Philadelphia was incor-

porated under the provisions of the Pennsylvania Non-

Profit Corporation Law on April 14, 1934 and has since that

time provided legal defense services in Philadelphia to indi-

gent persons accused of crime. For years and until more

recent years the Association operated without financial as-

sistance from the City of Philadelphia. Decisions of the

United States Supreme Court such as Gideon v. Wain-

wright, 372 U. S. 335 (1963) and In re Gawlt, 387 U. 8. 1

(1967) greatly expanded the obligation to provide counsel

for the indigent, The obligation to provide counsel is placed

upon the local or state Government.

Philadelphia had and has an independent Defender As-

sociation which has operated successfully. It has the over-

whelming support of the community as a whole. However,

in 1968 the Association found itself unable to provide the

legal representation required because of lack of sufficient

private contributions, grants of aid and appropriations

from the City Administration. To prevent a total break.

down in law enforcement in Philadelphia and the admin-

istration of justice a stop gap appropriation procedure

was worked out with the City Administration by President

Judge Carroll and representatives of the Defender Asso-

ciation,

57a

The Mayor of Philadelphia, James H. J. Tate, publicly

advocated a Public Defender Office. An Ordinance was

introduced in City Council and a public hearing scheduled.

Opposition came from every non-political direction in Phila-

delphia. No hearing was held. Negotiations between City

representatives and the Association toward support for

the Defender Association began to make progress.

The Mayor, however, insisted that because public funds

to be appropriated to the Defender Association during the

fiscal year 1969-1970 amounted to some $1,160,000 the City

should have a substantial number of members on or per-

centage of the Board of Trustees appointed by the Mayor.

The Association, after full consideration and by a close vote

of its membership, agreed to enter into the contract pre-

pared by the City Solicitor.

The proposed amendments to the Articles of Incorpora-

tion are required in order to effectuate the contract. Rele-

vant provisions of the contract, Exhibit “F”’, executed on

behalf of the Defender Association of the City of Phila-

delphia are referred to in the fact findings by the Court.

The term of the contract is perpetual but either party may

terminate this agreement on June 30th of any calendar

year provided not less than ninety (90) days written notice

of such termination is given.

A further escape clause is provided by paragraph 4 of

the contract wherein the City undertakes to compensate the

Defender Association for the services to be rendered by the

contract in an amount to be determined by Council of the

City of Philadelphia from time to time by appropriation.

In the event the Defender Association shall determine such

appropriation is insufficient it may terminate the agreement

upon thirty (30) days written notice.

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58a

Finprines or Fact

1. The Defender Association was incorporated under

the provisions of the Pennsylvania Non-Profit Corporation

Law on April 14, 1934 and has since such time provided

legal defense services in Philadelphia, Pennsylvania to indi-

gent persons accused of crime.

2. During such time, the Defender Association has been

managed by an independent Board of Directors of, in re-

cent years, approximately fifty members; and by an Execu-

tive Committee and Officers elected from such Board.

3. This Board of Directors has been composed mainly

of members of the Philadelphia Bar, supplemented by in-

terested individuals from local and state government and

the Philadelphia community at large.

4, For many years, the United Fund was the sole sub-

stantial source of funds for the operation of the Defender

Association; however, during the past few years, as a

result of certain decisions of the Supreme Court of the

United States, such as Gideon v. Wainwright, 372 U. S. 335

(1963), grants from certain charitable foundations, notably

the Ford Foundation, as well as the provision by the Office

of Economic Opportunity for funds for legal service pro-

grams, the budget and services of the Defender Association

were expanded until by 1967 the combined budget for de-

fender operations, excluding representation of juveniles,

was over $600,000.

5. In 1967, the City of Philadelphia contributed $152,000

to the Defender Association. This sum was paid as part of

the City’s Quarter Sessions Court budget.

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59a

6. During 1967 and 1968, the Ford Foundation grant

expired and the contract for funds from the Office of Eco-

nomic Opportunity was not renewed.

7. Appropriate efforts were made by the Defender As-

sociation during 1968 to obtain additional funds from the

City without success and in the fall of 1968 it became neces-

sary to schedule the reduction and elimination of several

Defender services.

8. In November of 1968, a bill was introduced into City

Council proposing the Office of Public Defender be ap-

pointed by the Mayor, with the approval of City Council.

Representatives of the Defender Association met with the

City Solicitor and other City representatives in order to

express their opposition to the bill and to urge that the

Defender Association continue to provide the required ser-

vices in representing indigents accused of crime.

9. As a result of such meetings, an agreement was

reached between the City and the Defender Association, the

principal provisions being:

(a) The Board of Directors of the Defender Asso-

ciation is to be changed to consist of thirty directors,

ten directors to be chosen by the Mayor with the ap-

proval of City Council, ten directors to be chosen by

the members of the Defender Association and the final

ten directors to be chosen by a majority of the direc-

tors selected by the Mayor and a majority of those se-

lected by the Defender Association.

(b) The Board of Directors shall appoint the Chief

Defender and First Assistant Defender.

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60a

(c) The Chief Defender shall appoint such other pro-

fessional and non-professional staff as is necessary.

(d) All employees shall be full-time except with the

approval of two-thirds of all the members of the Board.

(e) The Defender Association agrees to provide

counsel to indigents in various areas of representation,

including:

(1) Juvenile delinquency;

(2) Any indictable offense at any stage of the

prosecution ;

(3) Any offense cognizable before the Municipal

Court;

(4) Post conviction proceedings ;

(5) Habeas corpus proceedings ;

(6) Extradition proceedings;

(7) Probation and parole proceedings; and

(8) Appeals in appropriate cases

The Defender Association will not provide counsel where

such representation would present a conflict of interest.

(f) The City is to compensate the Defender Asso-

ciation in an amount determined by appropriation

from time to time by City Council.

As a result of such agreement, the Public Defender bill

was not acted upon.

10. Provisions of the proposed agreement with the City

necessitated certain changes in the Defender Association’s

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Articles of Incorporation, primarily with regard to the

purpose of the corporation and the structure of its Board

of Directors.

11. Amendments to the Articles of Incorporation were

prepared and presented to a meeting of the members of the

Association on March 28, 1969, at which time they were

approved.

12. Certain standards for the operation of defender

systems throughout the country have been adopted by the

American Bar Association and include, inter. alia, that a

defender system should provide “experienced, competent

and zealous counsel, independent and free from political

or economic influence.”

13. While it is necessary to insulate a defender system

from undue political control or interference, there have

been established in recent years a number of public de-

fender systems and systems whereby management was

placed in a board of directors containing substantial repre-

sentation from both the public and private communities.

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14. Although the City’s representation on the proposed

Board of Trustees is larger than that seen necessary by

several of the witnesses, there is no indication that the

proposed system will fail to continue to provide indepen-

dent defender service.

the Defender Association and the City of Philadelphia

appear to provide adequate insulation from undue political

influence over the operation of the defender system.

1 3 15. The proposed amendments and contract between

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16. The prompt implementation of a competent, ade-

quate defender system in the criminal and juvenile courts

of Philadelphia is vital to the sound administration of

justice.

17. The budget for the Defender Association for the

fiscal year 1969-1970, to provide for the areas of repre-

sentation set forth in the proposed agreement with the

City, is in the amount of $1,263,595, of which $1,160,095 is

to be paid by the City of Philadelphia.

18. The proposed defender system is supported by the

Board of Governors of the Philadelphia Bar Association ;

the United Fund, which has indicated its continued annual

contribution of $50,000; and the Court Administrator of

the Philadelphia Courts.

19. No feasible alternative to the proposed system has

been shown.

20. The Philadelphia community is protected from at-

tempts to exert undue political influence over the operation

of the proposed Defender Association by competent “watch-

dogs” such as the Philadelphia Bar Association, United

Fund, the Philadelphia judiciary and the Court Adminis-

trator, as well as many of the witnesses opposing the pro-

posed amendments and the organizations of which they

are members.

Discussion

The Defender Association has made application for

approval of certain amendments of its Articles of Incor-

poration. The amendments should be approved if the

Court:

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“shall be of the opinion that the amendments are lawful,

will be beneficial and not injurious to the community,

and do not conflict with the requirements of this

act...” 15 PS. 7707

It is the Defender Association’s position that the pro-

posed amendments provide an appropriate accommodation

between legitimate governmental interests in the substan-

tial amount of funds required to be spent for an adequate

defender service in Philadelphia and the professional inde-

pendence vital to the operation of a sound defender system.

Herman Pollock, longtime Defender, described this posi-

tion in his testimony:

“We arrived at this not because it’s the best system.

I don’t think it is at all. I would like to have the

government give $1,200,000.00 to the Defender organ-

ization as it now is,...

“But this is a world, sir, in which I think we cannot

deal in absolutes and we have to be realistic. And I

think that this is a plan with which a decent lawyer

can live with as Defender.

“Now, if you are going to get somebody there who

isn’t decent, if you are going to get a corrupt City

government, if you are going to get a corrupt judi-

ciary, this thing is in danger, but if you don’t start j

with the belief that there is corruption all around us,

I think that this is a viable, operative instrument.

“The Court: Well, I expect you have to start off

with a highly capable Chief Defender, do you not,

under the new set-up?

“That is correct.

“The Court: Because of the absolute authority he

has with respect to selection and operation of the

actual defense of cases, investigation, defense of cases.

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“That is right. And I have said to my own Board,

with due respect, that whether or not this organization

continues as an independent organization is not going

to depend on the City; it’s going to depend on our

own Board that’s there now. If they will continue to

fight to keep the Association independent, it will be

independent, but if they’re going to compromise all

over the place then it may be our effectiveness may

be diminished. No doubt about that.

“If they can muster the necessary community sup-

port, in my opinion, should the occasion arise when

it is needed to protect the independence of the De-

fender and the staff, I think there will be no trouble in

Philadelphia of doing it.” :

John J. Cleary, Esq., Deputy Director of the National

Defender Project, a grant activity of the National Legal é|

Aid and Defender Association, testified as to the operation 4

of various forms of defender systems throughout the :

United States. In his opinion any type of defender or

system, be it public, private or mixed can provide inde- ’

pendent, competent service. The obvious reservation is :

that the system must be free of political control and inter- 4

ference and adequately financed. He is familiar with the

past operation of the Defender Association and its contract ;

with the City of Philadelphia. In his opinion Philadelphia i

has had an outstanding defender system. The agreement

involved in this controversy has been reviewed by his

group and approved as being consistent with the recog-

nized standards and a model balancing of public-private

interest. Cleary described it as an “independent system”

for handling legal representation of the indigent.

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Edward J. Blake, Esq., the Court Administrator, ap-

peared officially to state his endorsement of the proposed

amendments which have the effect of continuing the ser-

vices to the community of the Defender Association. Speak-

ing for President Judge Vincent A. Carroll as well, he

testified that the amendments would be beneficial to the

administration of criminal justice in the City of Philadel-

phia where 60-65% of defendants in criminal cases are

indigent. He looks upon the proposed changes in the

organization of the Association as not affecting its indepen-

dence. On the contrary it not only maintains its inde- i

pendence but for the first time will be adequately financed

and in a position to give full and complete attention to

the legal requirements of indigent defendants including

juveniles.

Joseph DuBarry, President of the Association, recited

the problems of the Defender Association during the last ,

several years in attempting to handle the burgeoning case

load thrust upon the organization, and negotiations with

the City to obtain adequate financing. By late 1968 the

financial situation was critical. In his opinion the contract

with the City of Philadelphia does not seriously impair

the independence of the organization. Upon approval of

the proposed amendments the Association will have the

necessary finances.

The contract representative of the City was Pace Reich,

Esq., Deputy to the City Solicitor. Clearly the City would

not negotiate the several questions raised by the objectors

such as the extent of City representation and tenure of

the Chief Defender. On the other hand, assurance was

offered that the only interest of the City administration

was to see to the expenditure of the substantial sums of

money to be appropriated to the Association.

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66a

Within the past week counsel for the objectors and earlier

counsel for the American Civil Liberties Union, Greater

Philadelphia Branch, furnished the Court excellent briefs

contra the amendments to the Charter. We appreciate the

highly competent and dedicated advocacy of Bernard L.

Segal, Esq. and Louis B. Schwartz, Esq. who advanced

the position of the objectors throughout the four day

hearing. Both are former members of the Association

and vigorously opposed the approval of the contract with

the City.

The objectors state that from the negotiations with the

City there resulted a “compromise”, embodied in a contract

between the City and the Defender Association. The com-

promise envisioned a “partnership” in control of the de-

fense, City Hall would designate 10 directors. The Defend-

er Association would designate 10. These 20 would desig-

nate an additional 10. On its face, this arrangement gives

City Hall 50% control of the Defender Association. In

practice, it would give City Hall total domination, owing

to the likelihood that highly-motivated political appointees

would attend and vote en bloc at all critical points, espe-

cially in the selection of the Chief Defender and in estab-

lishing personnel policy. Practical domination would also

be assured by the normal division of opinion among “Inde-

pendent” directors combined with the expectable political

and economic links to City Hall of many directors having if

no overt connection with the political authorities,

Testimony in this case established City Hall’s purpose

and power to dominate, through the force-out of the then

Defender for political reasons, which was made a condition

of negotiations between the City and the Defender Associa-

tion, and through the course of negotiations in which even

the minimal safeguards in the contract were extracted from

a reluctant city administration.

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67a

Uncontradicted testimony in this case, including testi-

mony of the petitioners’ own witnesses, established that the

degree of control allotted to the city exceeds any legitimate

interest the City could have in the premises. Uncontradicted

testimony established that the City’s legitimate interests

could be fully protected by contract stipulations regarding

the service to be performed, audits and other purely fiscal

supervision, and continuance of the policy already firmly

established of “goldfish-bowl” operation with a standing

invitation to any interested official to attend directors’

meetings. Uncontradicted testimony established that full

information about the Defender operation has always been

made available, and that no City official had ever claimed f

otherwise. "

The amendments to the Defender Association Charter,

here offered for the approval of the Court, are designed

to carry out the contract executed by the Association under

the gun of the City’s threat to cut off funds completely.

Approval by the membership of the Association was by a

close vote of 19-16. The tenuousness of the “independent” '

position in the proposed organization is exposed by an

analysis of the amended articles: virtually every feature of

the organization and operation of the “new” Defender Asso-

ciation, including its contract with the City, could be altered ;

or abandoned without the concurrence of a single director

representing the Association. The only power unequivocally

remaining in the Association’s directors is the power to

fix the annual dues of members.

They view the contract issue as being whether the govern-

ment, which is constitutionally required to finance the de-

fense of the indigent, shall also manage the defense or

exercise large influence over the defense, and state that it

is significant in this connection that the present proposals

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for Philadelphia are unique in subjecting the appointment

and operation of the defender to a Mayor who also appoints

the Police Commissioner and prosecutor (the City Solici-

tor). In other counties the County Commissioners who

designate the public defender have no such direct links

with police and prosecution. One might add that if the

District Attorney should happen to be subject to control

by the Mayor the Chief Administrator would have the

potential right of control over both the prosecution and

the defense. Of course, anything can or may happen in this

City but the Court believes charges of this type are purely

speculative and without any apparent foundation in fact.

Of course, there may not be a “Partnership” between

prosecuting authorities and counsel for the indigent ac-

cused. The Defender Association must provide independent

and effective counsel. One can appreciate the concern of the

objectors that a conflict of interest situation or situations

ean develop from such a “Partnership” should it exist but

this Court believes it does not.

Clearly a portion of the active and interested element of

the community have strong opinions with respect to the

question before the court. But does the division involve

the goals of the defender system in Philadelphia—it does

not. Both sides firmly advocate an operation that meets

all the accepted standards for independent and equal repre-

sentation of those persons entitled to counsel by the con-

stitution and court decisions. The opposition is based upon

belief or perhaps no more than speculation that a long time

politically oriented Mayor will dominate and control pol-

icies, procedures, and hiring in the Defender Association.

7 For this Court to find that he will or will not would be

speculative as well.

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The Court has carefully listened to the testimony of the

objectors most of whom are professional friends or ac-

quaintances. We don’t question their sincerity. One might

pick out for special mention the testimony of several but

all followed the same ideological line. All were concerned

not with the continuation of the same standards of repre-

sentation by the Defender Association but motivated by a

conviction that the City Administration intended to control

and change the character of our nationally recognized de-

fender group.

Considering alone the testimony of Mr. Cleary for the

proponents and Professor Dorsen for the objectors, both of

whom are most familiar with defender systems and not

from this City, one concludes that success, failure, or inade-

quacy in representation of the indigent defendant depends

largely upon independence of operation. That may be con-

sidered an oversimplification of the question. The point is

that no matter who appoints the Directors, Trustees, or

Public Defender, that in itself does not assure a community

that it will have a first class defender office. The success

or failure of the Defender Association will depend almost

completely upon the selection of thirty members of the

Board of Directors, the choice of a Chief Defender and his

selection of assistants. This Court believes that the Chief '

Defender and his assistants should have the protection of

“tenure” in office as advocated by the present members of

the Association. Anything less will be a clear indication

that the defender organization is suspect. The Association

must offer lawyers career service opportunity.

The Court has reviewed carefully the learned and dy-

namic brief presentation of the objectors and finds itself in

complete agreement with the philosophy and guidelines

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70a

presented. However, we cannot accept the argument that

the revised Charter would create a corporate monster out-

side the contemplation of the Non-profit Corporation Law

which is clearly unlawful, not beneficial and would be in-

jurious to the community. Again we say this is pure specu-

lation on the part of the objectors and contrary to the belief

of a majority of the members of the Association, the Court

Administrator, and the President Judge of the Court of

Common Pleas and the National Defender Project.

The objectors argue that the question of prejudicial or.

ganization of the Defender Corporation is not prematurely

raised. It is not. Of course, in a sense, time will tell and i

individual defendants can question the adequacy of defense j

counsel including conflict of interest for years in the future. ;

This Court is not tempted to by-pass what counsel refer

to as the novel and difficult central issue in this case by

saying that the issue is raised “prematurely.” To do so

would have a disruptive and devastating effect upon the

constitutional administration of justice in our community.

We agree that an amended Charter should not be ap-

proved that involved a compromising “Partnership” with

City Hall which would by the application of professional

ethics and the Constitution require the intelligent consent

by a client before undertaking to represent him. Of course,

it would be impracticable to operate a defender organiza-

tion on that basis. We do not believe and do not find or

“predict” that such a need will arise. At this point in their

argument able counsel for the objectors tend to overreach

too enthusiastically and argue beyond any reasonable ex-

amination and interpretation of the record prepared at the

hearing on this application.

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We do not decide the problem before the Court on the

basis that the contract with the City requiring an amend-

ment of Articles of Incorporation represent the better

choice of two evils. Actually in our opinion the Defender

Association service to the community will be more bene-

ficial than in the past. Believing that the Board of Directors

will be “independent” the Association will now be ade-

quately financed and in a position to meet the increasing

demand for legal representation as required by the Con-

stitution and court decisions. The community will have the

services of an established and respected organization

backed up by the Courts of Philadelphia County and an

intelligent and aggressive organized Bar. Community or-

ganizations and the objectors have supported the Associa-

tion in the past and will continue to do so if it continues

to be an outstanding independent organization. A new

dimension appears in the new organizational picture as

well. For the first time the Association will be in a position

to offer prospective members of the defender staff a com-

petitive and adequate salary or rate of compensation and

hopefully a career.

The testimony offered at the hearings and arguments

advanced by counsel require one to stop and think. One

must reason carefully in evaluating the merits of the con-

flicting positions. The final judgment of this Court is that

the application should be approved. The burden of per-

suasion by a preponderance of the evidence has been met

by the Applicant Defender Association of Philadelphia.

Yhe Court orders each party to pay their own costs.

Conc.usions oF Law

1. This Court has jurisdiction over the parties to and

subject matter of this action.

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2. Applicant has complied with the requirements of the

Non-Profit Corporation Law (15 P. S. 7001 et seq.) con-

cerning the approval of proposed amendments of articles

of incorporation.

3. The proposed amendments are lawful.

4. The proposed amendments are beneficial and not in-

jurious to the community.

The Court has simultaneously with the filing of this Ad-

judication filed a Decree approving the Amended Articles

of Incorporation of the Defender Association of Phila-

delphia.

By tHe Court:

McDevitt, J.

Date filed: August 8, 1969.

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