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July 7, 1975



Anthony D. Pirillo, Jr., Salvatore J. Cucinotta, Philadelphia, for petitioners.

Harry A. Takiff, M. L. Levy, Robert B. Lawler, Nancy J. Moore, Ben W. Joseoh, Asst. Attys. Gen., Walter M. Phillips, Jr., Deputy Atty. Gen., Philadelphia, for respondents.

Before Jones, C. J., and Eagen, O'brien, Roberts, Pomeroy, and Manderino, JJ.

Author: Jones

JONES, Chief Justice.

These two petitions*fn1 present the novel question of whether the supervising judge of a regular grand jury conducting a special investigation may disqualify a single attorney and his associate from representing twelve witnesses subpoenaed to testify before the grand jury. We decline to issue a writ of prohibition to the supervising judge who disqualified the two attorneys/petitioners.

On January 31, 1974, the Honorable Harry A. Takiff, respondent herein, charged the January 1974 Grand Jury as a special investigating grand jury to investigate, inter alia, corruption in the Philadelphia Police Department. On March 26, 1974, the Attorney General of Pennsylvania established the Office of the Special Prosecutor by appointing respondent Walter M. Phillips, Jr., as Deputy Attorney General to investigate and prosecute police corruption in Philadelphia. The convening of the grand jury and the appointment of the Special Prosecutor were actions taken in response to a Report by the Pennsylvania Crime Commission on Police Corruption and the Quality of Law Enforcement in Philadelphia.

In June and July of 1974, the twelve policemen/petitioners were subpoenaed to appear before the grand jury. Each officer was represented by petitioner Anthony D. Pirillo, Jr., Esquire and/or by Mr. Pirillo's associate, Salvator J. Cucinotta, Esquire.*fn2 As was customary, before any witness testified, Judge Takiff held an in camera session with the Special Prosecutor or his representative during which the Judge was informed as to the proposed scope of inquiry for these witnesses. It was revealed by the Special Prosecutor that each witness would be questioned about the conduct of other police officers, and in most cases, about the conduct of each other. Most of the officers had been named in the Crime Commission Reoort as persons who had taken bribes from the owners of Philadelphia bars.

Because the Special Prosecutor's office brought to Judge Takiff's attention the possibility of a conflict of interest in the multiple representation by Attorney Prillo and his associate of all the petitioners/witnesses, the supervising judge deferred the testimony of these witnesses pending a determination of the question. After an evidentiary hearing on the conflicts matter, the judge decided that Mr. Pirillo and his associate, Mr. Cucinotta, must be disqualified from representing all twelve of the policemen/witnesses before the grand jury. His decision was based on the following grounds:

(1) The multiple representation interfered with the individual witness's right to effective counsel. For example, if witness A has information about witness B 's criminal conduct, one attorney could not represent both. It may be in A 's best interest for counsel to advise A to cooperate. However, this would operate to the detriment of B.

(2) The attorneys' fee compensation arrangement with the Fraternal Order of Police, by whom the petitioners' attorneys were referred and paid, constituted a serious question of conflict because of the Fraternal Order of Police's avowed public policy of strenuous opposition to any form of cooperation by individual policemen with the Special Prosecutor's office and with the investigating grand jury. This would not only interfere with the public function of the investigating grand jury but would also jeopardize the rights of the individual witnesses to effective assistance of counsel because the attorneys might be compelled to pursue the dictates of the F.O.P. which pays them rather than the best interests of the witness.

There would be a serious detriment to the investigative function of the grand jury because of the multiple representation. With one attorney representing all witnesses in a particular area of investigation, the Special Prosecutor could not convince counsel to elicit cooperation of one witness since such cooperation of one witness since such cooperation might seriously implicate the attorneys' other clients in illegal activity.

In summary according to the Special Prosecutor, the practical effect of the multiple representation was the creation of the conspiratorial "stonewall" to the investigation shrouded by the interwoven attorney-client relationships.

On a Petition for Assumption of Plenary Jurisdiction,*fn3 for a Writ of Prohibition and for Supersedeas, we granted a rule to show cause why the Writ of Prohibition and Supresedeas should not be granted.

The extraordinary Writ of Prohibition is issued as a matter of discretion to prevent a lower court from acting outside its jurisdiction and to prevent it from abusing its discretion. McNair's Petition, 324 Pa. 48, 187 A. 498 (1936). It is often used where the trial judge has acted in a blatantly unlawful manner. Commonwealth ex rel. Spector v. Shimos, 457 Pa. 104, 32 &#.2d 34 ( 974); Commonwealth v. Caplan, 411 Pa. 563, 192 A.2d 894 (1963); Schlesinger v. Musmanno, 367 Pa. 476, 81 A.2d 316 (1951). There is the additional requirement, however, that there be an absence of other appellate remedies and the existence of extreme necessity before the writ will issue. West Penn Power Company v. Goddard, 460 Pa. 551, 333 A.2d 909 (J-59 filed Mar. 18, 1975); Carpentertown Coal & Coke Company v. Laird, 360 Pa. 94, 61 A.2d 426 (1948). Accordingly, where an attorney's right to pursue his occupation by representing a particular defendant is curtailed by the lower court, we have held that a writ of prohibition is an appropriate remedy where the curtailment was unlawful, there being no adequate remedy for the attorney via appeal. Moore v. Jamieson, 451 Pa. 299, 306 A.2d 283 (1973). Since the right to counsel is inextribly linked to the right to counsel is inextricably inliked to the right of an attorney to practice law, the two rights are properly reviewed together. Cf. Moore v. Jamieson, supra, 451 Pa. at 307, 306 A.2d at 287. If, as we conclude, the rights of the petitioners were legitimately infringed upon, then the Writ of Prohibition will not issue.

I. Rights of the Petitioners

In order to assess the legitimacy of the supervising judge's order, it is imperative that we assess the rights asserted and determine whether these rights may be ...

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