Pa. court bans judicial aides from law work for pay

Justice Seamus P. McCaffery, whose wife is his chief judicial aide. Their lawyer defends her actions.
Justice Seamus P. McCaffery, whose wife is his chief judicial aide. Their lawyer defends her actions.
Posted: August 23, 2013

The Pennsylvania Supreme Court, responding to a controversy over outside legal fees paid to the wife of one of its members, issued an order Wednesday banning aides to appellate judges from working as lawyers for pay.

The change in rules did not name Justice Seamus P. McCaffery or his wife, Lise Rapaport, but was clearly directed at them - and amounted to a rebuke of Rapaport's practice of accepting fees for referring clients to eight law firms while serving as her husband's chief judicial aide.

Still, it was not immediately clear what effect the order might have on McCaffery and Rapaport, or whether it would require her to stop making such referrals.

The couple and their lawyer, Dion G. Rassias, could not be reached for comment Wednesday, but Rassias has vigorously maintained that Rapaport was not engaging in the practice of law by making the referrals. Thus, McCaffery and Rapaport could argue that the order has no bearing on her past or present conduct.

The referrals have been the subject of sharp internal debate on the state's highest court since The Inquirer described them in a March article that reported that Rapaport was paid $821,000 last year for one such referral.

Chief Justice Ronald D. Castille declined to comment on Wednesday's order except to say the majority of his court viewed acceptance of referral fees as a form of practicing law. That was also the view of five legal experts in recent Inquirer interviews.

Castille, a Republican, has previously condemned the referrals and has been lobbying his colleagues to end Rapaport's dual role as a maker of referrals and a top court aide.

The chief justice has insisted numerous times over the last decade that Rapaport was practicing law by making the referrals. He has said that under state law, only lawyers may make such referrals.

Federal prosecutors and the FBI have launched a criminal investigation of the referrals. In part, they have been looking into whether McCaffery improperly complained about a Philadelphia judge whom he viewed as unfavorable to plaintiffs, including those represented by a firm that has been a source of referral income for his wife and campaign contributions for him.

The seven-member court issued Wednesday's order "per curiam," meaning "by the court." Such orders are usually unanimous, suggesting McCaffery supported the decision.

The rule was posted on the court's website Wednesday. Such changes are often months in the making, with versions debated by the court's advisory panels; this time, the high court acted swiftly on its own.

Until now, aides to Pennsylvania appellate judges could practice law with the permission of their supervisors, though not before the court that employed them. The new policy flatly bans the practice of law for paying clients.

Under the heading "Practice of Law by Staff," the rule says no aide "employed by any appellate court or by any judge thereof shall practice" law.

In recent months, Castille has argued that McCaffery and Rapaport ignored existing rules by not seeking the chief justice's approval before practicing law while on the court payroll. Had his approval been sought, Castille said, he would have denied it.

He and McCaffery had never been close, though they worked together in recent years pushing for reforms in Philadelphia criminal courts. But the relationship turned to enmity this year as Castille criticized the fees. McCaffery has blamed Castille for the public release of a report late last year that strongly suggested McCaffery had fixed a traffic ticket for his wife. McCaffery has denied doing so.

Rassias, the lawyer for McCaffery and Rapaport, has said her referrals and fees were entirely proper.

He has said that by sending cases to other lawyers, Rapaport was not practicing law. In fact, he wrote to The Inquirer this year, it was "the antithesis of the practice of law." Thus, Rassias suggested, she needed no approval from the chief justice.

If any approval was needed, Rassias has also said, it should have come from her husband, who is also her immediate supervisor. Castille has ripped into this argument, saying that if McCaffery had given her approval, he would have violated state ethics law by approving an action that benefited him financially.

McCaffery is paid $199,606 a year as a justice. As his chief administrative judicial assistant, Rapaport is paid $75,395.

According to McCaffery's annual financial disclosures, eight law firms have on 19 occasions paid referral fees to Rapaport since 2003, the year McCaffery first ran for statewide judicial office. The disclosure forms require little detail, and McCaffery's filings do not identify the clients Rapaport referred to firms or the amounts she received. The $821,000 fee is the only one that has become known; it was revealed in a public court filing last year detailing the settlement of a malpractice lawsuit against a hospital.

As is often customary in referral-fee arrangements, which are legal in Pennsylvania, her fee was one-third of the contingency fee paid the plaintiffs' firm in the malpractice case. That firm in turn had received a third of the underlying lawsuit's $7.5 million settlement.

In a statement to The Inquirer this year, Castille said Rapaport's dual role - picking up outside income for referrals while serving as a court aide - posed a potential ethical issue.

Castille said the fees raised the potential for "the appearance of impropriety arising from a judge's staff employee practicing law while receiving fair compensation while employed in a judicial chamber, and especially in a judicial chamber."

In interviews, some experts said they, too, thought it best that Rapaport not make such referrals. Others said McCaffery should have disclosed the fees in any case before him involving a firm that had paid her. Bruce Ledewitz, a Duquesne University law professor and an expert on state supreme courts, said he saw no need for such disclosures.

There is no indication that during his years on the high court, McCaffery has helped decide any appeal arising from a case in which Rapaport made a referral. Fodera & Long, the Philadelphia firm in the case that led to the $821,000 payment, has not had cases in his court.

At the same time, four of the eight firms that have paid her referral fees have appeared before his court in other cases, either representing litigants or filing friend-of-the-court briefs. In all, McCaffery has taken part in 19 such cases. Lawyers in those cases say he did not disclose any fees to Rapaport in court.

One lawyer, Thomas More Marrone, who lost a 2011 appeal, said he found McCaffery to be "a terrific justice" and saw no need for disclosure.

Pittsburgh lawyer Joseph A. Hudock Jr. was in two cases in which other parties were represented by a Harrisburg firm with a referral arrangement with Rapaport.

McCaffery "is a fair guy," Hudock said, "but I think anyone who is a litigator before the court would want to know about any potential bias a judge has, on any side of it."


Contact Craig R. McCoy at 215-854-4821 or cmccoy@philllynews.com, or follow on Twitter @CraigRMcCoy.

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