There is an ethical cloud hanging over the Pennsylvania Supreme Court involving referral fees received from law firms by Lise Rapaport, Justice Seamus McCaffery's wife and chief aide and clerk. The existence of the fees has been public since this paper exposed it several years ago. Recently, The Philadelphia Inquirer published additional information about the referral fees. No one in any official capacity has taken any action. The facts are troubling and places the Supreme Court in a bad light. It must be put to rest.
McCaffery's wife, Rapaport, is a lawyer who is employed as his chief aide and clerk, at a salary of $75,395. While employed by him, she has received 18 referral fees from at least eight different law firms.
Some of these firms have had cases (other than those involving the referrals) adjudicated by the Supreme Court in which McCaffery was a voting member of the panel. He did not disclose his wife's receipt of the referral fees to the lawyers representing the parties on appeal. The Inquirer has reported that he sat on over 10 such appeals. According to the Inquirer, in many of the cases he ruled in favor of the party represented by the firm that had previously paid his wife a referral fee in another case.
Receipt of a referral fee by a lawyer is acceptable in Pennsylvania. However, under these circumstances, there is a strong appearance of impropriety. The Pennsylvania Code of Judicial Conduct states that judges should recuse themselves from a matter when "their impartiality might be questioned."
The Inquirer has reported the opinions of several legal ethics experts who differed on whether McCaffery should have disclosed the receipt of his wife's fees or whether she should have received the referrals while employed by the court. Two nationally recognized experts stated that he should not have sat on the panel hearing any cases involving those law firms.
We understand that lawyers for McCaffery and Rapaport contend the receipt of the referral fees is routine and McCaffery acted properly. We do not know whether the referral fees influenced McCaffery's vote in any of these matters. However, we think there is a strong appearance of impropriety and McCaffery's impartiality may be questioned under the circumstances. Rapaport is not just the justice's wife or secretary-typist; she is his chief aide and clerk. She oversees his work product for the cases he presides over. He then votes on many of the appeals in which the law firms that gave the referrals represent a party in the appeal, but does not disclose his wife's receipt of the fees. To be clear, none of the appeals involved the cases in which the fees were paid.
There is something wrong with this story. This is the highest court in the commonwealth. The practicing bar and the court cannot remain passive and permit this situation to continue without a resolution. Curiously, the Philadelphia and Pennsylvania bar associations have remained silent.
There is a simple solution. The Pennsylvania Supreme Court should engage a former justice from a state other than Pennsylvania, or a former federal judge, to find facts as to what occurred, and render an opinion on the propriety or the appearance of impropriety of the practice. The Supreme Court would be the client and the confidential procedures and internal communications among the court members would be protected. As part of this procedure, McCaffery and Rapaport would be required to submit to private interviews with the jurist. The jurist would render an opinion to the court that the court could use to take appropriate action.
Commentaries appearing from the Editorial Board are produced by The Legal's Editorial Board. The opinions are voted on and passed by a majority of the members of the board. They do not necessarily reflect the opinions of every member of the board, or of the newspaper.
Jeremy D. Mishkin, Chairman
Albert S. Dandridge III
Michael J. Engle
Shira J. Goodman
Claudine Q. Homolash
Jeffrey P. Lewis
Raymond M. Williams
Alan L. Yatvin
The Editorial Board of The Legal Intelligencer is composed of members of the legal profession. They serve voluntarily and are independent of The Legal Intelligencer. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. Members of the legal community are invited to contribute signed