filed: March 25, 1983.
FELD AND SONS, INC., T/A TODAY'S MAN AND DAVID FELD, DAVID KLEIN, ALAN BECKER AND JAKE JACOBSON, INDIVIDUALLY, APPELLANTS,
PECHNER, DORFMAN, WOLFEE, ROUNICK, AND CABOT, A PENNSYLVANIA PARTNERSHIP AND STEPHEN J. CABOT, MARTIN J. SOBOL, JULIUS M. STEINER, JOHN DORFMAN, LENARD WOLFEE, SIDNEY J. SMOLINSKY, LEONARD SCHAEFER, MILTON P. KING, WALTER LAZAROFF, JACK A. ROUNICK, CHARLES W. BOWSER, EMANUEL A. BERTIN, EDWIN N. BAROL, BARRY H. FRANK, AND DANIEL T. BERKLEY, INDIV. AND T/A PECHNER, DORFMAN, WOLFEE, ROUNICK & CABOT, A PENNSYLVANIA PARTNERSHIP AND ALAN M. DABROW, BARRY F. BEVACQUA, ROBERT J. SIMMONS, KENNETH M. JARIN, AND GERALD R. CURETON, INDIVIDUAL PART DEFENDANTS
No. 2076 Philadelphia 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Civil at No. 3529 June Term 1980.
Steve Alexander, Philadelphia, for appellants.
Richard M. Shusterman and Morris R. Brooke, Philadelphia, for appellees.
Spaeth, Rowley and Van der Voort, JJ.
[ 312 Pa. Super. Page 127]
This is an appeal from an order sustaining appellees' preliminary objections in the nature of a demurrer and dismissing appellants' complaint in trespass and assumpsit. Appellees were appellants' lawyers in a labor dispute. In proceedings before the National Labor Relations Board, the individual appellants committed perjury, falsified exhibits, and offered a potential witness against them a bribe not to testify. As a result they were convicted of a federal crime, and were fined and placed on probation. Appellants allege that they engaged in this criminal conduct on the advice and with the assistance of appellees, and they seek compensatory and punitive damages for professional malpractice (Count I), the infliction of emotional distress (Count II), and deceit (Count III), and compensatory damages for breach of contract (Count IV). The lower court held that appellants are entitled to no relief because they and appellees are in pari delicto. We agree with the lower court that appellants are entitled to no relief, except we think that if they can prove their allegations, they are entitled to recover the legal fees they paid appellees. We shall therefore modify the order of the lower court to provide that appellants'
[ 312 Pa. Super. Page 128]
complaint is dismissed, except as to so much of Count IV as seeks to recover legal fees paid appellees. As so modified, the order will be affirmed.
Since the case arises on appellees' demurrer to appellants' complaint, we shall assume that the facts pleaded in the complaint are true. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979); Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976); DeSantis v. Swigart, 296 Pa. Super. 283, 442 A.2d 770 (1982).*fn1 The complaint is detailed and diffuse, comprising one hundred and forty six paragraphs. R.R. 6a-55a. Its dispositive allegations may be summarized as follows.
Appellants are engaged in the retail men's clothing business. One of appellants is a corporation, trading as "Today's Man;" the other appellants are individuals who are officers or employees of the corporation. Appellees are a law firm, Pechner, Dorfman, Wolffe, Rounick & Cabot, and partners and associates of the firm. In June 1977 the corporation retained the Pechner firm as special labor counsel. The corporation wanted to prevent the Philadelphia Joint Board, Amalgamated Clothing and Textile Workers' Union, AFL-CIO, from organizing its warehouse employees. As the corporation's labor counsel, members of the labor section of the Pechner firm devised a plan to prevent unionization of the warehouse employees. Generally stated,
[ 312 Pa. Super. Page 129]
the plan was to ensure that a majority of the warehouse employees would vote against being represented by the union. To accomplish this, several warehouse employees suspected of being sympathetic to the union were fired, and certain management personnel, specifically, Larry Feld and appellants Klein and Jacobson, each a vice-president of the corporation, were falsely designated as warehouse employees.
In the ensuing dispute, the union filed a representation petition with the National Labor Relations Board, seeking an order fixing the membership of the warehouse employee bargaining unit. At the hearings on the petition, appellants lied under oath and submitted falsified time cards and payroll records in an effort to convince the hearing officer that the designated warehouse employees were in fact warehouse employees who should be permitted to participate in the union representation election. Appellants engaged in this criminal conduct on the advice and with the assistance of the Pechner firm labor lawyers.
The union also filed an unfair labor practice complaint with the National Labor Relations Board. A warehouse employee, one Tyrone Evans, was subpoenaed to testify at the hearing on the complaint. Evans knew that appellants had lied under oath and had submitted false documents at the hearing on the representation petition. In an attempt to keep him from testifying, several of the Pechner firm labor lawyers and Feld offered Evans a bribe to ignore the subpoena for his appearance.
As a result of their conduct at the representation hearing, the individual appellants were indicted for perjury and interference with an agent of the National Labor Relations Board. Each was convicted of a federal crime, and was fined and placed on probation.
Appellants allege that as a result of the Pechner firm's representation of them, they suffered various damages, including loss of business, emotional distress, and unnecessary legal expenses. Count I of the complaint seeks compensatory damages "in an amount exceeding $250,000" and
[ 312 Pa. Super. Page 130]
punitive damages for professional malpractice; Count II seeks the same damages for the infliction of emotional distress, and Count III, for deceit. Count IV seeks compensatory damages for breach of contract, "in an amount equal to the monies already paid" the Pechner firm, and "in an amount equal to the monies necessarily expended by [appellants] to correct the effects" of the Pechner firm's breach of contract to provide appellants "competent, professional advice of the quality reasonably to be expected from labor counsel." Complaint, paras. 145(b), 141.
The common law doctrine of in pari delicto ("in equal fault") is an application of the principle that "'no court will lend its aid to a man who grounds his action upon an immoral or illegal act.'" Fowler v. Scully, 72 Pa. 456, 467 (1872) (collecting authorities, and quoting YEATES, J., in Mitchell v. Smith, 1 Binn. 110, 121 (1804), who was in turn quoting Lord Mansfield in Holman v. Johnson, 98 Eng. Rep. 1120 (1775)).*fn2 When the doctrine is applied, the result is to render the transaction between the parties "absolutely without any force or effect whatever . . . . The law will leave the parties just in the condition in which it finds them." Pittsburgh v. Goshorn, 230 Pa. 212, 227 (1911). And see Kuhn v. Buhl, 251 Pa. 348, 371, 96 A. 977 (1916); Burkholder v. Beetem's Adm'rs, 65 Pa. 496, 505-506 (1870).
[ 312 Pa. Super. Page 131]
The doctrine is subject to qualifications, however, which have been variously stated. In Story Equity Jurisprudence § 423 (14th ed. 1918) it is said:
And indeed in cases where both parties are in delicto, concurring in an illegal act, it does not always follow that they stand in pari delicto; for there may be, and often are, very different degrees in their guilt. One party may act under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age; so that his guilt may be far less in degree than that of his associate in the offense. And besides, there may be on the part of the court itself a necessity of supporting the public interests or public policy in many cases, however reprehensible the acts of the parties may be.
Generally stated, appellants' argument is that they are within Story's qualification, that is, that their "guilt [is] far less in degree" than appellees'. They compare themselves to "the blind owners of a ship who retained the expert services of navigators [the Pechner firm lawyers] to guide them through potentially dark and troubled waters [the dispute with the union]." Brief for Appellants at 45. "Unbeknowst" to them, they say, the lawyers were "mutinous navigators who were bent on steering [appellants'] uninsured ship into a violent storm." Id. "Public policy demands," they conclude, "that [the lawyers] be made to accept civil liability for their mutinous behavior." Id. at 46.
Appellants' self-pity is almost as reprehensible as their conduct before the National Labor Relations Board. Granted that the Pechner firm lawyers advised them to lie under oath, to prepare and to submit false documents, and to attempt to bribe a potential witness not to testify. Still, no one made them engage in such conduct. Appellants plead all sorts of excuses for their conduct. For example, they say -- and we take it as true -- that the lawyers told them that it was "legal" to fire warehouse employees sympathetic to the union, Complaint, para. 37(a); that they didn't know "until two or three days before" the first hearing on the representation petition that their testimony would be
[ 312 Pa. Super. Page 132]
under oath, id., para. 50; that the lawyers told them "that the best way to counter the expected union lies was to present misstatements of fact" [why is the Union's evidence "lies" and appellants' "misstatement of facts?"] and "introduce falsified time cards," and that "this was the way things were always done," id., para. 51(d), (f); that they acted on the lawyers' "coaching, instruction, [and] advice," id., para. 68; and so on. But these allegations do not diminish in the slightest degree the deliberate willfulness of appellants' conduct. They knew exactly what they wanted to do: defeat the union. When the lawyers told them how to do it -- that they should commit perjury and falsify documents -- they did it.
Given the deliberate willfulness of appellants' conduct, we might decide this case by holding that appellants are not within Story's qualification of the doctrine of in pari delicto:*fn3 they did not "act under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age;" it therefore may not be said that their "guilt [is] far less in degree than that of [appellees as their] associate[s] in the offense;" they therefore are in pari delicto with appellees.
[ 312 Pa. Super. Page 133]
If we were to take this approach, however, we should have to ask one more question, in Story's words, whether "there may be on the part of the court itself a necessity of supporting the public interests or public policy . . ., however reprehensible the acts of the parties may be." In other words: Even though appellants and appellees are in pari delicto, are there considerations of public policy that persuade us that appellants are nevertheless entitled to relief? Appellants, not expressly but by implication, argue that we should ask this further question, for, as we have mentioned, they conclude their brief with the assertion that "[p]ublic policy demands that [appellees] be made to accept civil liability" for their conduct. Brief for Appellants at 46. Appellees take the same approach, although not surprisingly, in their view public policy requires that appellants be denied relief.
Distinguished, and recent, precedent supports this traditional two-step, as it may be described, approach. In Tarasi v. Pittsburgh National Bank, 555 F.2d 1152 (3d Cir.) cert. denied, 434 U.S. 965, 98 S.Ct. 504, 54 L.Ed.2d 451 (1977), the action was to recover under the Securities Exchange Act. The plaintiffs had received confidential information from an officer of the defendant bank concerning a prospective merger of two corporations. Without disclosing that they were acting on the basis of this information, the plaintiffs bought stock in one of the corporations. When instead of going up in value, the stock went down, the plaintiffs sued the bank officer and the bank for their loss. On the defendants' plea of in pari delicto, the District Court granted summary judgment in their favor. The Court of Appeals affirmed. In doing so, the court followed the traditional two-step approach. First it asked whether the parties were in pari delicto. Both sides had violated the Securities Exchange Act, the bank officer as a "tipper" and the plaintiffs as "tippees." While acknowledging that their respective conduct was therefore not the same, the court nevertheless concluded that the plaintiffs' fault was "substantially equal" to the defendant, and had "a sufficient
[ 312 Pa. Super. Page 134]
causal relation with their losses." 555 F.2d at 1162. In reaching this conclusion, the court emphasized -- as we have, in our comments on the nature of appellants' conduct -- that "the plaintiffs in this case willingly committed illegal acts . . . ." Id. Accordingly, the court said, "the concept of in pari delicto " was "[brought] into play." Next, the court proceeded to "complete [its] inquiry" by considering whether there were considerations of public policy such that despite their equal fault, the plaintiffs should be entitled to recover their losses from the defendants. Id. at 1162-64. (The court found no such considerations.)
Upon reflection, we have decided not to take this two-step approach. The reason we have decided not to take it is its dependence upon the concept of "public policy." "[Public policy] is a very unruly horse, and once you get astride it you never know where it will carry you. It may lead you from the sound law. It is never argued at all but when other points fail." Richardson v. Mellish, 130 Eng.Rep. 294, 303 (1824), Burrough, J.*fn4
In explaining our conclusion, we may start with a simple case, in which the analysis involves only one step, not two. Consider, for example, Jenkins v. Fowler, 24 Pa. 308 (1859). There the parties were farmers, who owned adjoining lands. To save labor and expense in planting and harvesting their crops, they agreed to enclose their fields. The fence they put up closed off not only their fields but also a public road. "When the defendant got his own crop away, he threw down that part of the fence which he had placed on the road, and thus caused the plaintiff's grain to be destroyed by the cattle which were let in upon it." Id. 24 Pa. at 309. In holding that the plaintiff was entitled to no relief, the Supreme Court said that the parties' agreement "was illegal and void. It was an agreement to commit a nuisance for
[ 312 Pa. Super. Page 135]
which both of the parties were liable to an indictment . . . . The contract being wholly void, one of the parties cannot sue the other for the breach of it." Id.
In a case such as Jenkins, resort to the doctrine of in pari delicto may be helpful, for one party's fault may persuasively be characterized as "equal" to the other's: each party entered into the identical illegal agreement -- to close off a public road; and each did the identical illegal act -- putting up the fence.
Now consider a case in which one party's conduct is not the same as the other's. The "tipper," who leaks confidential information, does not commit the same wrong as the "tippee," who acts upon the information. When in such a case the court resorts to the doctrine of in pari delicto, it will be led, as the court in Tarasi v. Pittsburgh National Bank, supra, was led, into taking the traditional two-step approach: Since the respective parties' conduct was not the same, it cannot be simply equated. Perhaps, however, their conduct was "substantially equal." If so, are there "considerations of public policy" that should nevertheless permit the plaintiff to recover? We do not find this a useful inquiry.
Suppose, for a moment, that instead of comparing conduct -- the plaintiff's with the defendant's -- we compare something else, say, oranges with potatoes. Since the objects are not identical, we may not say that they are " in pari; " the one-step approach taken in Jenkins is not available. Let us therefore try the two-step approach taken in Tarasi. Taking the first step, we might decide that since both oranges and potatoes are food, they are at least in some sense "substantially equal." Taking the second step, we might then go on to ask whether there are considerations of policy such that oranges should nevertheless be favored. But how could that question be answered? From one point of view -- source of Vitamin C -- oranges should be favored, but from another -- source of carbohydrates -- potatoes should be. Thus the decision which should be favored
[ 312 Pa. Super. Page 136]
would depend upon which policy were chosen, and that choice would be essentially arbitrary.
It is all very well to decide that in terms of "fault" the plaintiff's conduct is "substantially equal" to the defendant's. But going on to ask whether because of "considerations of public policy" the plaintiff should nevertheless be favored -- should be granted relief -- is like comparing oranges and potatoes. From one point of view, the plaintiff should be favored, but from another, he shouldn't be; and choosing which point of view to adopt will often be essentially arbitrary. It is this quality of arbitrariness that justifies the characterization of public policy as "a very unruly horse," which may carry one "you never know where."
Consider the facts before us. We may not take the one-step approach of Jenkins, for appellants' conduct was not the same as appellees'. While appellees advised appellants to lie, it was appellants who did lie. Neither was appellants' character the same as appellees' (business men versus professionals); nor were their motives (to defeat the union versus to earn a fee). Suppose then that we take the two-step approach of Tarasi. Certainly appellants and appellees were both at fault, and perhaps we might persuasively say that their fault was in some sense "substantially equal." But what then? We could decide that "considerations of public policy" require that dishonest lawyers be punished, even though that means their dishonest clients recover damages in excess of $250,000. That's what appellants urge us to decide. Or we could decide that "considerations of public policy" require that adjudicatory proceedings intended to enforce national labor relations be free of perjured testimony, even though that means dishonest lawyers escape paying damages. That's what appellees urge us to decide. Just as when comparing oranges with potatoes, we could favor either appellants or appellees, depending upon which point of view -- which "public policy" -- we
[ 312 Pa. Super. Page 137]
chose. But it would be difficult to characterize our choice as other than arbitrary. In another action another court might with equal justification make another choice. Cf. Tarasi v. Pittsburgh National Bank, supra, and Nathanson v. Weis, Voisin, Cannon, Inc., 325 F.Supp. 50 (S.D.N.Y. 1970), with Kuchnert v. Texstar Corp., 412 F.3d 700 (5th Cir. 1969). And see the several opinions in Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134 (1968), 88 S.Ct. 1981, 20 L.Ed.2d 982.*fn5
We think we will do better if we altogether avoid resort to the doctrine of in pari delicto. While we acknowledge the doctrine's usefulness in such uncomplicated cases as Jenkins v. Fowler, supra, here, in our opinion, it causes more difficulties than it resolves.*fn6
Instead, we shall rely upon the general principle of which the doctrine of in pari delicto is a specific and
[ 312 Pa. Super. Page 138]
limited application. That principle, as already remarked, is that "no court will lend its aid to a man who grounds his action upon an immoral or illegal act." Fowler v. Scully, supra at 467. While we find no persuasive answer to the question whether appellants' conduct was more, or less, or equally, "immoral or illegal" than was appellees', that it was immoral or illegal is clear; and that appellants' action is grounded upon their immoral or illegal conduct is also clear. We find this a sufficient basis for decision.*fn7
The reason no court will lend its aid to an action grounded upon immoral or illegal conduct is that "the law will not suffer itself to be prostituted." Fowler v. Scully, supra at 468. Were we to aid appellants -- confessed perjurers -- in their attempt to recover compensatory and punitive damages in excess of $250,000, we should indeed "suffer [the law] to be prostituted." For we should reward appellants, with a great deal of money, for their criminal conduct; we should soften the blow of the fines and sentences imposed upon them; and we should encourage others to believe that if they committed crimes on their lawyers' advice, and were caught, they too might sue their lawyers and be similarly rewarded.
We recognize, however, that the principle that "no court will lend its aid to a man who grounds his action upon an immoral or illegal act" is not some sort of magic wand
[ 312 Pa. Super. Page 139]
before which the most complex case dissolves into simple solution. The circumstances may be so tangled that by deciding not to lend its aid to one party, the court will aid the other. In such a case, how should the court proceed? This very question arises here,*fn8 for one of appellants' demands is to recover the legal fees they paid appellees, Complaint, para. 145, and if, in refusing to aid appellants, we preclude them from recovering these fees, we shall to that extent aid appellees. We must therefore ask whether we wish to do that.*fn9
In considering whether we should aid appellees by enabling them to keep the legal fees appellants paid them, we have found the opinion of Chief Justice Rugg in Berman v. Coakley, 243 Mass. 348, 137 N.E. 667 (1923), especially helpful. There the plaintiff was the proprietor of a hotel in Boston and the defendant was a lawyer. The case arose on demurrer, so the allegations of the plaintiff's bill in equity were admitted as true. These allegations were as follows. The defendant and one Corcoran formed a conspiracy to cheat the plaintiff. The defendant falsely told the plaintiff that Corcoran was going to complain to the district attorney that the plaintiff had permitted Corcoran's wife to use his hotel for purposes of unlawful sexual intercourse. The plaintiff thereupon retained the defendant as his lawyer,
[ 312 Pa. Super. Page 140]
and the defendant, pretending to act as the plaintiff's lawyer, told the plaintiff that Corcoran would withdraw his complaint if he were paid $35,000. The defendant advised the plaintiff to comply with this demand, and the plaintiff paid the money. The action was to recover the money. The defendant demurred on the ground that the money was paid pursuant to an illegal contract. The trial judge reversed the point, and the Supreme Judicial Court overruled the demurrer.
The Chief Justice opened his discussion with the statement that the contract between the parties was indeed illegal:
It is a doctrine so well settled as not to be open to discussion that courts will not aid in the enforcement, nor afford relief against the evil consequences, of an illegal or immoral contract. One branch of that general principle is that a private agreement made in consideration of the suppression of a criminal prosecution will neither be enforced nor abrogated by a court of equity. That doctrine is founded upon the public policy that the course of justice cannot be defeated for the benefit of an individual.
Id. at 350, 137 N.E. at 668-669 (citations omitted).
Nevertheless, the court held that the plaintiff should be permitted to maintain his action. After examining a good many cases, the Chief Justice stated:
An attorney at law has been said to be a public officer. He is an officer of the court sworn to aid in the administration of justice and to act with all good fidelity both to his clients and to the court. The public have a deep and vital interest in his integrity. [citations omitted] It is a matter of profound importance from every point of view that members of the bar be men of probity and rectitude, zealous to maintain relations of utmost honesty with their clients and solicitous to protect them against legal wrong. Unflinching fidelity to their genuine interests is the duty of every attorney to his clients. Public policy can hardly
[ 312 Pa. Super. Page 141]
touch matters of more general concern than the maintenance of an untarnished standard of conduct by the attorney at law toward his client. The attorney and client do not deal with each other at arms' length. The client often is in many respects powerless to resist the influence of his attorney. If that influence be vicious, untoward, criminal, the relation of trust is abused and becomes a source of wrong.
Id. at 354-55, 137 N.E. at 670-671.
The Chief Justice went on to say that on the facts before the court, "The plaintiff and the defendants were not in pari delicto. Whatever may be justly said in condemnation of the acts of the plaintiff is less than is necessary touching the acts of the defendant." Id.
Of course, Berman may be read as holding no more than that where the parties are not in pari delicto -- because the client "is in many respects powerless to resist the influence of his attorney" -- recovery will be allowed. We acknowledge that the Chief Justice's discussion adopts the traditional two-step approach of first considering whether the parties' fault is equal. Indeed, he quotes Story's formulation, which we have quoted in beginning our discussion. We think, however, that this would be too narrow a reading of Berman, and that the more accurate reading is that it stands for the proposition that even when the client has acted immorally or illegally, the lawyer may not keep money gotten from the client in violation of the lawyer's professional obligations. We find this proposition implicit in the Chief Justice's emphasis on "the maintenance of an untarnished standard of conduct by the attorney at law toward his client."*fn10
[ 312 Pa. Super. Page 142]
Our reading of Berman is supported by the decision of our Supreme Court in Peyton v. Margiotti, 398 Pa. 86, 156 A.2d 865 (1959), which quoted extensively from Berman. In Peyton the defendant lawyer accepted $5,000 from the plaintiff on the understanding that he would return the money if he did not succeed in having the plaintiff's brother released from prison by Christmas. The lawyer persuaded the Pardon Board that the brother should be released, but the Governor withheld his signature, and the brother was not released from prison until well after Christmas. On the plaintiff's action to recover the $5,000 from the lawyer's estate, the estate pleaded that as a contingent fee agreement in a criminal case, the lawyer's promise to return the money was a contract against public policy, and therefore unenforcible. The Supreme Court agreed that the contract was against public policy. Collecting cases, the Court compared the contract to such contracts as a contract to procure a pardon from the Governor, a contract to procure the passage of an Act of the Legislature by using personal influence with the members, and a contract to have a man discharged from the draft. "But," the Court said, "the law would fall short if it only left the parties where it found them." Id., 398 Pa. at 92, 156 A.2d at 868. Quoting Berman, the Court concluded "that despite the essential invalidity of the contingent fee agreement the law should be allowed to favor the plaintiffs because of the circumstances." Id., 398 Pa. at 93, 156 A.2d at 868-869. The Court thus read Berman as we do. For the lawyer in Peyton was not guilty of any fraud or extortion. Indeed, he "achiev[ed] rather spectacular results" for his client. Id., 398 Pa. at 94, 156 A.2d at 369. On a traditional in pari delicto analysis, it would seem that the client's fault in seeking the lawyer's services might easily be found equal to the lawyer's fault. And yet the Court held that the lawyer's estate had to return the fee.
We therefore hold that when a lawyer has by immoral or illegal conduct violated his professional obligations to
[ 312 Pa. Super. Page 143]
his client, an action by the client to recover the lawyer's fee will not be barred on the lawyer's plea that the client also engaged in immoral or illegal conduct. The conclusion follows that if appellants can prove the allegations of their complaint, they may recover the fees they paid appellees.
We are aware that this conclusion opens us to a charge of inconsistency: while saying that we will not aid appellants, we yet permit them to recover the fees they paid appellees. We believe, however, that we have been as consistent as possible. On the allegations of the complaint, both appellants and appellees have acted immorally and illegally. We wish to aid none of them, and we have come as close as we can to achieving that result.*fn11 While appellants will have been aided if they recover the fees they paid appellees, this aid will be very limited. For appellants may recover only the fees they paid; no lost profits or any other sort of damages -- whether for legal malpractice, infliction of emotional distress, deceit, or anything else -- may be recovered.
The order of the lower court is modified to provide that appellants' complaint is dismissed, except as to so much of Count IV as seeks to recover legal fees paid appellees. As so modified, the order is affirmed.