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MARK P. WIDOFF v. DISCIPLINARY BOARD SUPREME COURT PENNSYLVANIA ET AL. (10/02/80)

decided: October 2, 1980.

MARK P. WIDOFF, CONSUMER ADVOCATE ET AL., PETITIONERS
v.
THE DISCIPLINARY BOARD OF THE SUPREME COURT OF PENNSYLVANIA ET AL., RESPONDENTS



Original jurisdiction in case of Mark P. Widoff, Consumer Advocate, et al. v. The Disciplinary Board of the Supreme Court of Pennsylvania and Charles V. Henry, III, Chairman, John C. Anderson, Vice-Chairman, Dennis C. Harrington, Herbert J. Johnson, Jr., Raymond Pearlstine, Pasco L. Schiavo, Frank J. McDonnell, Mary Bell Hammerman, and Robert C. Daniels, Members, Individually and in their official capacity.

COUNSEL

Walter W. Cohen, Consumer Advocate, with him Daniel Clearfield and Craig Burgraff, Assistant Consumer Advocates, and Ashley Schannauer, Legal Assistant, for petitioners.

Howland W. Abramson, Assistant Legal Counsel, with him Charles W. Johns, for The Disciplinary Board of the Supreme Court of Pennsylvania, respondent.

Jonathan Vipond, III, for Court Administrator of Pennsylvania, respondent.

President Judge Crumlish and Judges Wilkinson, Jr., Rogers, Blatt, Craig, MacPhail and Williams, Jr. Judge Mencer did not participate. Opinion by Judge Blatt. Judge Williams, Jr. dissents.

Author: Blatt

[ 54 Pa. Commw. Page 127]

The petitioner, the Office of Consumer Advocate, seeks a declaratory judgment that Disciplinary Rule 7-107(H) of the Pennsylvania Code of Professional Responsibility is unconstitutionally infirm as unduly vague and overbroad.

The Office of Consumer Advocate was legislatively established in 1976 as an arm of the Department of Justice to represent consumers of public utility services in proceedings before the Pennsylvania Public Utility Commission (Commission) and before any other agency or court in regard to any matter which involves regulation by the Commission. Article IX-A of the Administrative Code, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 309-1 et seq. The respondent, the Disciplinary Board of the Supreme Court of Pennsylvania (Board), was appointed by the Supreme Court to investigate complaints of unethical conduct by members of the Pennsylvania Bar and to recommend to the Supreme Court that it dismiss the complaint or take appropriate disciplinary action. Pa. R.D.E. 205.

In May of 1978, a complaint was filed with the Board which alleged that Mark P. Widoff, the former Consumer Advocate and a member of the Pennsylvania Bar, had made public statements during the pendency of Commission hearings which violated DR

[ 54 Pa. Commw. Page 1287]

-107(H) of the Pennsylvania Code of Professional Responsibility.*fn1 The statements complained of included quotes in a newspaper article and two press releases by the Consumer Advocate which concerned pending Commission hearings in which Mr. Widoff was participating in his official capacity. Ultimately, the Board dismissed the complaint on the grounds that Mr. Widoff had made good faith efforts to comply with the Rule and had believed that he had done so. The Board went on to caution Mr. Widoff, however, that he was nonetheless subject to the restrictions of the Code of Professional Responsibility as an attorney who was also the Consumer Advocate and that disciplinary charges would be brought against him for any future public statements that would be "reasonably likely to interfere with a fair hearing."

[ 54 Pa. Commw. Page 129]

We must first resolve whether or not an "actual controversy" exists here in order to justify a declaratory judgment as to the constitutional validity of DR 7-107(H). The Consumer Advocate maintains that the Rule restricts not only his personal right to speak under the first amendment but also the Consumer Advocate's duty to make public statements pursuant to his legislative authority as the representative of public utility customers, and it is asserted that the vagueness and breadth of DR 7-107(H) forces the Consumer Advocate and his assistants either to refrain from constitutionally protected comment or to risk disciplinary action. We realize, of course, that the Declaratory Judgments Act, 42 Pa. C.S. § 7531 et seq., is remedial legislation and should be liberally construed and applied. Section 7541 of the Declaratory Judgments Act, 42 Pa. C.S. § 7541. Furthermore, "[t]he stated purpose of the Declaratory Judgments Act . . . is to settle and afford relief to any person from uncertainty and insecurity with respect to right, status and legal relations affected by a statute." Snider v. Shapp, 45 Pa. Commonwealth Ct. 337, 346, 405 A.2d 602, 607 (1979). We believe, therefore, that the Consumer Advocate's dilemma here presents the existence of an actual controversy between the exercise of free speech rights and the threat of disciplinary action. The petitioner has already received warning that past expressions, which the Consumer Advocate considered to be officially required of him, were questionable under the disciplinary rules and that any such statements by him in the future will result in harsh treatment. A liberal construction of the Declaratory Judgments Act allows a resolution of the Consumer Advocate's "uncertainty and insecurity with respect to his rights", and such construction will be given.

[ 54 Pa. Commw. Page 130]

As to the petition before us, the petitioner has requested a declaration that the provisions of DR 7-107(H) are overly broad and unduly vague and, therefore, that his right of free speech is unconstitutionally restricted thereby. It is argued that paragraphs (1)-(4) of DR 7-107(H) impose limitations on the Consumer Advocate's speech which are greater than necessary to protect the fairness of administrative hearings. It is argued, moreover, that DR 7-107(H)(5), which generally prohibits statements by attorneys as to "any other matter reasonably likely to interfere with a fair hearing" is not only too restrictive but that it is also unconstitutionally vague. Hirschkop v. Snead, 594 ...


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