June 2006
Featured Disciplinary Case
Topic
Under the Supremacy Clause, when state law conflicts or is incompatible with federal law, the federal law preempts the state law. As a result, a lawyer suspended or disbarred by a state can still maintain a law office within that state’s borders to conduct a federal law practice if that lawyer remains in good standing in the federal court.
Summary
Surrick v. Killion, 449 F.3d 520 (3rd Cir. June 2, 2006). Surrick was admitted to the Pennsylvania Bar in 1961 and to United States District Court for the Eastern District of Pennsylvania five years later. He accused several judges of the Pennsylvania Superior Court of “fixing” cases. After lengthy and convoluted disciplinary proceedings following his comments, the Pennsylvania Supreme Court suspended him for five years. In imposing sanction, the court noted:
The respondent uses his self-aggrandized role as a crusader for justice as a shield from any liability for his actions while simultaneously arguing that any judicial decision in contravention of his position proves that he is a victim of a judicial conspiracy. Respondent's personal views on judicial reform cannot excuse his reckless conduct in bringing unsubstantiated claims against individual members of the judiciary…Respondent's predilection to unprovoked character assassination whenever he receives an adverse ruling exhibits conduct that calls into question his ability to continue practicing law in a fit manner…When a lawyer holds the truth to be of so little value that it can be recklessly disregarded when his temper and personal paranoia dictate, that lawyer should not be permitted to represent the public before the courts of this Commonwealth.
Thereafter, the United States District Court for the Eastern District of Pennsylvania instituted reciprocal disciplinary proceedings. To defend himself, Surrick argued that the state sanction was unsupported by evidence and that he was denied procedural due process. He also raised First Amendment issues. The initial three-judge District Court panel recommended no discipline. A second panel was appointed by the Chief Judge. After additional oral argument and briefing, the second panel recommended a 30-month suspension. On appeal to the Third Circuit, Surrick’s discipline was affirmed.
In re Surrick, 338 F.3d 224 (3d Cir. 2003). The federal appellate tribunal imposed a 30-month suspension believing that the five-year state suspension “exceeded that of other comparable cases.” Surrick was readmitted to the Eastern District of Pennsylvania Bar in 2004. A few months later, the Pennsylvania Court issued its decision in
Office of Disciplinary Counsel v. Frank J. Marcone, 855 A.2d 654 (Pa. 2004)(
see February 2005 NOBC Case of the Month at http://www.nobc.org/cases/0205.asp), ruling that an attorney suspended from practice in the Pennsylvania courts but readmitted to the federal district court could not maintain a law office in the Commonwealth so long as he remained unauthorized to practice in the Pennsylvania state courts. In the wake of
Marcone, Surrick filed a declaratory judgment action against the Pennsylvania Chief Disciplinary Counsel and the justices of the Pennsylvania Supreme Court, alleging that he reasonably feared that the he would be sanctioned if he was to open a law office to conduct a ‘federal’ practice. His claims were predicated on the Supremacy Clause of the United States Constitution and the First Amendment. The Office of Disciplinary Counsel subsequently moved to dismiss Surrick's complaint, arguing, that his claims were not ripe and that the complaint failed to state a claim upon which relief could be granted.
The District Court eventually held hearings, where Surrick testified that he intended to open and maintain an office to support a federal practice where he would take diversity actions in the medical malpractice field and sue those who bring “frivolous” malpractice lawsuits against doctors. The Office of Disciplinary Counsel responded by presenting expert testimony that, using modern technology, attorneys are now able to practice law without a traditional law office.
The District Court granted limited declaratory relief in Surrick's favor, declaring that he “may open a legal office for the practice of law before the United States District Court for the Eastern District” of Pennsylvania subject to eight conditions. Among other things, he was permitted to open and maintain a law office on Ritter Street in Philadelphia solely for his federal practice of law, but he could not display any signage on the outside of his office building reflecting his federal practice and he was further prohibited from marketing his practice by way of outdoor advertisement or posters. Sure to be a real business incentive, he also had to “promptly inform all persons seeking his legal services that he is only admitted to practice before the U.S. District Court of the Eastern District of Pennsylvania and is under suspension from practice in, and respecting legal matters to be filed in, the state courts of Pennsylvania.” Further, he was required commence an application for reinstatement to the Bar of the Supreme Court of Pennsylvania. The District Court denied his request for injunctive relief and declined to reach his First Amendment arguments. The state actors appealed.
While the appeal was pending, Surrick managed to submit an application for reinstatement to the Pennsylvania Bar, but the application was subsequently returned for being incomplete and defective. He also refused to pay the costs of his underlying disciplinary proceedings and to apply for the requisite 36 hours of CLE courses. Before the Third Circuit, the state raised two challenges to jurisdiction. First, the state contended that the appeal was moot due to Surrick's failure to comply with the conditions imposed by the District Court. Second, the case was not ripe for adjudication. As to the merits, the state argued that the District Court erred in determining that Surrick could maintain a law office in Pennsylvania to support a federal practice. The Third Circuit sided with the trial court holding that maintaining a law office is “reasonably within the scope of the practice authorized” by federal statutes and local rules and the state's regulation of such conduct hinder Surrick's federal license to practice law. Fundamentally, the Supremacy Clause provides that disqualification from membership in a state bar does not necessarily lead to disqualification from the federal bar. The federal appellate panel recognized that it was reaching a conclusion that was different than the one stated in Marcone but:
In all candor, we have extreme difficulty in accepting the notion that maintaining an office constitutes engaging in the practice of law but prohibiting one from maintaining an office does not burden the right to practice law. Perhaps the explanation lies in the difference in the record before us and that which was before our colleagues on the Pennsylvania Supreme Court. Here, the District Court heard expert testimony on the ability of an attorney to practice law without a physical office and concluded that: [d]espite technological advances in the practice of law-such as electronic filing and case research through internet subscriptions-physical space remains necessary for the representation of clients. A physical office space provides a location for confidential counseling with clients as well as room to store the necessary equipment, such as fax machines, legal text, telephones, paper files, typewriters and computers, association with proper management of legal matters. Without a physical office location the plaintiff would be effectively prohibited from “performing [those] tasks which are incident to” litigating cases before the Eastern District.
The Third Circuit ordered Surrick to perfect a petition for reinstatement in Pennsylvania within 10 days of the opinion. “Perfecting” the petition would require him to pay the costs of his original prosecution and take the required CLE credits. Instead of going ahead with the petition, Surrick’s lawyers informed the federal court that he has decided to move to Costa Rica where he plans to reside. Thus, he will withdraw from the federal practice of law and not seek reinstatement in Pennsylvania.
