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MRS. KENNETH EVANS v. COMMONWEALTH PENNSYLVANIA (07/28/82)

decided: July 28, 1982.

MRS. KENNETH EVANS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, RESPONDENT



Appeal from the Order of the Department of Public Welfare in case of Appeal of Mrs. Kenneth Evans, dated August 29, 1980.

COUNSEL

Gerald M. Barr, Steckel & Stopp, for petitioner.

Phillip B. Rosenthal, Assistant Counsel, with him Catherine Stewart, Assistant Counsel, for respondent.

President Judge Crumlish, Jr. and Judges Blatt and Doyle, sitting as a panel of three. Opinion by Judge Blatt. Judge Mencer did not participate in the decision in this case.

Author: Blatt

[ 68 Pa. Commw. Page 35]

In April 1977, Mrs. Kenneth Evans (petitioner) requested legal representation from Lehigh Valley Legal Services (Legal Services) in claiming a property tax rebate*fn1 for the years 1972 and 1973. She was advised by two attorneys on the staff of Legal Services, and later by its Executive Director, that her claim was untimely*fn2

[ 68 Pa. Commw. Page 36]

    as well as without legal merit.*fn3 The Board of Directors affirmed the Executive Director's denial of legal representation and the Department of Public Welfare (DPW), after a hearing, denied her appeal from the Board's action. An appeal to this Court followed but, upon determining that a transcript of the hearing before the DPW was unavailable due to a malfunction of the tape recorder used at the hearing, we remanded the matter to the DPW for another hearing, after which the hearing examiner sustained the petitioner's appeal and ordered Legal Services to afford her legal representation. Shortly thereafter, the Director of the Office of Hearings and Appeals for the DPW reversed the order of the hearing examiner and one month later, following the petitioner's request for reconsideration, affirmed his order of reversal. This appeal followed.

[ 68 Pa. Commw. Page 37]

The gravamen of the petitioner's argument is that the DPW erred in interpreting Canon 2 of the Code of Professional Responsibility (Code), which provides that a lawyer should assist the legal profession in fulfilling its duty to make legal counsel available, and Ethical Consideration (E.C.) 2-29 of the Code, which appears thereunder:

When a lawyer is appointed by a court or requested by a bar association to undertake representation of a person unable to obtain counsel, whether for financial or other reasons, he should not seek to be excused from undertaking the representation except for compelling reasons. Compelling reasons do not include such factors as the repugnance of the subject matter of the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of the civil case. (Emphasis added.)

It is clear that E.C. 2-29 does not speak to the ethical responsibility of Legal Services to represent those unable to obtain legal counsel otherwise; rather, it addresses the onus upon court-appointed attorneys or upon those requested by bar associations to represent persons who are without other legal-representational resources. The Legal Services' attorneys in the instant matter were neither appointed by a court nor requested by a bar association to undertake representation of the petitioner.

Moreover, Legal Services was not adverse to representing the petitioner but was only adverse to representing her in an untimely and non-meritorious action. Indeed, Legal Services represented the petitioner on all other matters on which she ...


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