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October 10, 1957


Appeals, Nos. 188, 189, 190, 191 and 192, Jan. T., 1957, from order of Court of Common Pleas No. 2 of Philadelphia County, Dec. T., 1953, No. 5290, in case of Leon Jedwabny, Peter Stachowicz and Charles W. Atkinson v. Philadelphia Transportation Company and Charles W. Atkinson, additional defendant. Order affirmed; reargument refused November 1, 1957.


Herman Moskowitz, for appellants.

James Conwell Welsh, for appellees.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Jones

[ 390 Pa. Page 233]


The principal question on these appeals is whether the granting of a new trial because of the trial judge's failure to make certain that one of the litigants had full knowledge of an existing conflict of interest in his attorney's representation of him constituted an abuse of discretion.

Three plaintiffs, one of whom was the owner and driver of an automobile and the other two his guest passengers, sued the Philadelphia Transportation Company for damages for injuries sustained in a collision between the automobile and a street car of the Transportation Company. The defendant joined the automobile owner and driver as an additional defendant.

At trial, the jury by special findings found both the motorman of the street car and the driver of the automobile guilty of proximately causative negligence. Verdicts were accordingly rendered against the defendant and the additional defendant jointly for the sums assessed by the jury, viz., $100 for the one passenger plaintiff and $10,500 for the other. In the case of the automobile owner as plaintiff and the Transportation Company defendant, a verdict was returned for the defendant. The Transportation Company filed motions for a new trial and for judgments n.o.v.; the n.o.v. motions were withdrawn at argument of the new trial motion. Neither the passenger plaintiffs nor the owner and driver of the automobile, all of whom were represented throughout by the same attorney, filed any after-verdict motions although, as already appears, the owner of the automobile stood jointly liable with the Transportation Company for the money verdicts in favor of the passenger plaintiffs.

The court below granted a new trial solely for the reason set forth in the opinion accompanying the order

[ 390 Pa. Page 234]

    as follows: "We think it was the duty of the trial judge to explain the situation to the additional defendant, a thing that was not done. It is not fatal to a trial that he not be represented, but he should be given the chance to make an informed choice. With a heavy joint verdict against him now, he may not even know his rights relative to a request for a new trial or an appeal."

The instant appeal does not necessarily search the basic ethical question whether a conflict of interest, such as this record presents, serves, as a matter of law, to disqualify an attorney from representing concurrently both of the conflicting interests. The question here is simply whether the trial judge was guilty of a palpable abuse of discretion in awarding a new trial for the reason assigned.

In Fisher, Executor v. Brick, 358 Pa. 260, 262, 56 A.2d 213, we recognized that "A trial court has an 'immemorial right to grant a new trial, whenever, in its opinion, the justice of the particular case so requires': March v. Philadelphia & West Chester Traction Co., 285 Pa. 413, 416, 132 A. 355." The Brick case also recognized that a trial court may of its own motion award a new trial even where neither party so moves. A court's exercise of such power is, of course, reviewable just as is the exercise of a legal discretion in any instance. We must look, therefore, to the circumstances which motivated the court's action in the present instance.

The situation that obtained upon the failure of the attorney to move for the additional defendant's relief from liability for the $10,500 verdict against him in favor of another client of the same attorney, also party to the same record, created in the mind of the trial judge a consciousness that he should have made certain by personal interrogation of the additional defendant at the time of the rendition of the verdicts or,

[ 390 Pa. Page 235]

    at least, before the time for moving for a new trial had expired that the particular litigant had been fully informed and had an intelligent and complete understanding of his then legal status, and should also have ascertained whether the litigant desired to move for a new trial.

Canon 6 of the Canons of Professional Ethics, adopted by the American Bar Association on September 30, 1937, and by the Pennsylvania Bar Association on January 7, 1938, provides in part that "It is unprofessional to represent conflicting interests, except by express consent of all concerned given after a full disclosure of the facts. Within the meaning of this canon, a lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose."*fn1 The full disclosure required by this canon contemplates that the possibly adverse effect of the conflict be fully explained by the attorney to the client to be affected and by him thoroughly understood. See opinion No. 160 of the Committee on Professional Ethics of the American Bar Association.

The foregoing canon applies to cases where the circumstances are such that possibly conflicting interests may permissibly be represented by the same attorney. But, manifestly, there are instances where the conflicts of interest are so critically adverse as not to admit of one attorney's representing both sides. Such is the situation which this record presents. No one could conscionably contend that the same attorney may represent both the plaintiff and defendant in an adversary action. Yet, that is what is being done in this case. It was the attorney's duty to protect the $10,500

[ 390 Pa. Page 236]

    verdict of his plaintiff client against the additional defendant while it was his duty at the same time to relieve from liability the additional defendant whose representation the attorney had originally undertaken for the purpose of obtaining for him a recovery from the Transportation Company. Obviously, the attorney cannot serve the opposed interests of his two clients fully and faithfully. The ancient rule against one's attempting to serve two masters interposes.

The ethical conception, appropriate to the instant circumstances, was luminously expressed in Bossler v. Wilson, 65 D. & C. 164, 171 (1948), which involved a procedural situation materially akin to the present. It was there said: "Now as to the first stated fact necessitating a new trial as to both defendants, namely, the same attorney appearing for both the plaintiff and the additional defendant. It must be borne in mind that the original defendant was a plaintiff as to the additional defendant. No finding rendered under such circumstances can be allowed to stand and to mature into a judgment against the additional defendant, a verdict rendered in a trial wherein the attorney represented the plaintiff in the presentation of her case and the additional defendant in the presentation of his defense to the claims of both plaintiff and original defendant. The interests of these parties were adverse. No attorney can serve two opposing litigants any more so than one man can serve two masters. Upon this point the law of the Commonwealth is in harmony with Holy Writ", citing in a footnote the scriptural references.

The conclusion naturally follows that, in the undisputed situation here present, the action of the learned court below in granting a new trial not only did not constitute an abuse of discretion but was affirmatively proper. As the brief for the appellee reminds us, the additional defendant with a large joint verdict against

[ 390 Pa. Page 237]

    him, having been awarded a new trial, now asks us on appeal to reverse the action of the court below to the end that the verdict against him may be reinstated and judgment thereon entered ...

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