Surrick v. Killion

• Decision Date: 02 June 2006
• Docket Number: No. 05-2615.,05-2615.
• Parties: Robert B. SURRICK v. Paul J. KILLION, Chief Counsel, Pennsylvania Office of Disciplinary Counsel, in His Official Capacity; Ralph J. Cappy, Chief Justice of the Supreme Court of Pennsylvania, in His Official Capacity; Ronald D. Castille; Russell M. Nigro; Sandra Schultz Newman; Thomas G. Saylor; J. Michael Eakin; Max Baer, Justices of the Supreme Court of Pennsylvania, All in Their Official Capacity Paul J. Killion, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

449 F.3d 520

Robert B. SURRICK v. Paul J. KILLION, Chief Counsel, Pennsylvania Office of Disciplinary Counsel, in His Official Capacity; Ralph J. Cappy, Chief Justice of the Supreme Court of Pennsylvania, in His Official Capacity; Ronald D. Castille; Russell M. Nigro; Sandra Schultz Newman; Thomas G. Saylor; J. Michael Eakin; Max Baer, Justices of the Supreme Court of Pennsylvania, All in Their Official Capacity Paul J. Killion, Appellant.

No. 05-2615.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit LAR 34.1(a) May 9, 2006.

June 2, 2006.

COPYRIGHT MATERIAL OMITTED

A. Taylor Williams, Administrative Office of the Pennsylvania Courts, Philadelphia, PA, for Appellant Paul Killion, et al.

David Rudovsky, Jonathan H. Feinberg, Kairys, Rudovsky, Epstein & Messing, Philadelphia, Pennsylvania, Seth F. Kreimer, Philadelphia, PA, for Appellee Robert Surrick.

Before BARRY, SMITH and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Paul J. Killion, Chief Counsel of the Commonwealth of Pennsylvania's Office of Disciplinary Counsel ("Office of Disciplinary Counsel"), appeals from the United States District Court for the Eastern District of Pennsylvania's order granting summary judgment to Robert Surrick in this declaratory judgment action. The District Court declared that Surrick, an attorney authorized to practice before the Eastern District of Pennsylvania but suspended by the Bar of the Supreme Court of Pennsylvania ("Pennsylvania Bar"), is permitted to maintain a law office in the Commonwealth of Pennsylvania for the sole purpose of supporting his practice before the federal court, subject to certain conditions. The Office of Disciplinary Counsel raises two challenges to our jurisdiction. First, it contends that this appeal has been rendered moot by Surrick's alleged failure to comply with the conditions imposed by the District Court. Second, it argues, as it did before the District Court, that this case is not ripe for adjudication. As to the merits, the Office of Disciplinary Counsel argues that the District Court erred in determining that Surrick is permitted to maintain a law office in Pennsylvania to support his federal practice, and urges us to adopt the Supreme Court of Pennsylvania's analysis in Office of Disciplinary Counsel v. Marcone, 579 Pa. 1, 855 A.2d 654 (2004).

Although we conclude that we have jurisdiction over this appeal and will affirm the judgment for the reasons stated below, we believe that Surrick has not complied with the conditions imposed by the District Court. Specifically, the District Court ordered Surrick to "commence an application for reinstatement to the Bar of the Supreme Court by April 15, 2005," later extended to May 15, 2005, emphasizing that:

the requirement that Plaintiff apply for reinstatement to the Bar of the Supreme Court of Pennsylvania while being permitted to maintain an office for its practice before the Eastern District, reflects this Court's understanding that by reinstating the Plaintiff to practice before the Eastern District before his suspension from practice in the courts of Pennsylvania expires, Plaintiff was given a temporary pass to resume his Federal law practice and not a permanent absolution from requirements and oversight of the Commonwealth.

(D. Ct. Op. at 25 (emphasis in original).)

Surrick has not complied in good faith with this order and has ignored the District Court's admonition that he was only granted a temporary pass. Although Surrick went through the motions of reapplying to the Pennsylvania Bar, he has thus far refused to comply with the requirements for reinstatement, to wit, paying the costs of the disciplinary proceedings and enrolling in required Continuing Legal Education ("CLE") courses. Nonetheless, Surrick has asserted to this Court that he will pay the costs and enroll in the courses if he prevails on appeal. Although we do not excuse his dilatory conduct, we decline to impose the draconian punishment of vacating the District Court's carefully crafted order and determining the question of federal preemption to be moot. Instead, as detailed in Part VI, we will direct Surrick to satisfy forthwith the requirements for reinstatement to the Pennsylvania Bar.

I.

Surrick was admitted to the Pennsylvania Bar in 1961 and to the Bar of the United States District Court for the Eastern District of Pennsylvania ("Eastern District of Pennsylvania Bar") in 1966. On March 24, 2000, following disciplinary proceedings, Surrick was suspended from the Pennsylvania Bar for five years. The Eastern District of Pennsylvania ordered a reciprocal suspension of thirty months. In re Surrick, 2001 WL 1823945 (E.D.Pa., June 21, 2001), aff'd, 338 F.3d 224 (3d Cir.2003).

The offense that led to suspensions in the two jurisdictions was the determination that he "acted with reckless disregard of the truth when he leveled accusations of case fixing against certain jurists in a pleading filed in the Superior Court of Pennsylvania." Office of Disciplinary Counsel v. Surrick, 561 Pa. 167, 749 A.2d 441, 442 (2000). In its order imposing the suspension, the Pennsylvania Supreme 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.

Id. at 447, 449.

Surrick was readmitted to the Eastern District of Pennsylvania Bar on May 17, 2004. On August 16, 2004, the Pennsylvania Supreme Court issued its decision in Marcone, which involved disciplinary proceedings against another Pennsylvania attorney. Therein, the Pennsylvania Supreme Court held 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 remains unauthorized to practice in the Pennsylvania state courts. Marcone, 855 A.2d at 668.

On December 7, 2004, Surrick initiated this declaratory judgment action against Paul Killion, Chief Disciplinary Counsel of the Office of Disciplinary Counsel, and the named justices of the Pennsylvania Supreme Court, alleging that the decision in Marcone was contrary to federal law and that he reasonably feared that the Office of Disciplinary Counsel would administer sanctions if he were to open a law office. Surrick sought a declaration that he is permitted to open a law office in Pennsylvania for the exclusive purpose of supporting his practice before the Eastern District of Pennsylvania and a preliminary injunction enjoining the Office of Disciplinary Counsel and the named justices from disciplining him for maintaining such an office. Surrick's 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, inter alia, that his claims were not ripe and that his complaint failed to state a claim upon which relief could be granted.

The District Court held hearings on January 24 and March 7, 2005. At those hearings, Surrick testified that he intends to open and maintain an office to support his practice before the federal courts. He testified that he intends to practice in the medical malpractice field, suing those who bring "frivolous" malpractice lawsuits against doctors. He testified that such lawsuits would be brought in federal court pursuant to federal diversity jurisdiction. 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.

On April 20, 2005, the District Court granted limited declaratory relief in Surrick's favor, declaring that Surrick "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:

(a) Plaintiff is authorized by the Eastern District's reinstatement Order to open and maintain a law office located at 1332 Ritter Street in Philadelphia, PA solely for the practice of law before this court;

(b) Plaintiff shall commence an application for reinstatement to the Bar of the Supreme Court of Pennsylvania by April 15, 2005[sic];¹

(c) There shall not be any signs on the outside of plaintiff's office building reflecting his federal practice and plaintiff shall not advertise his practice by way of outdoor advertisement or posters (d) Plaintiff shall provide an inscription on all stationary [sic], business cards, files, websites or other documents or correspondence clearly delineating that his practice of law is strictly limited to cases or controversies within the jurisdiction of the United States District Court for the Eastern District of Pennsylvania;

(e) Plaintiff shall not provide legal advice or consultation on state law matters and where appropriate will refer to other attorneys any state court cases or inquiries;

(f) Pursuant to his status as an admitted attorney before the Eastern District, plaintiff is authorized to represent clients on all matters within the jurisdiction of this court;

(g) Plaintiff shall promptly inform all persons seeking his legal services that he is only admitted to...