Office of Disciplinary Counsel v. Surrick

• Decision Date: 24 March 2000
• Parties: OFFICE OF DISCIPLINARY COUNSEL, Petitioner, v. Robert B. SURRICK, Respondent.
• Court: Pennsylvania Supreme Court

749 A.2d 441

561 Pa. 167

OFFICE OF DISCIPLINARY COUNSEL, Petitioner, v. Robert B. SURRICK, Respondent.

Supreme Court of Pennsylvania.

Argued November 16, 1999.

Decided March 24, 2000.

Samuel F. Napoli, Pittsburgh, for Disciplinary Board.

Samuel E. Klein, Philadelphia, for Robert B. Surrick.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO NEWMAN and SAYLOR, JJ.

OPINION

CAPPY, Justice.

This court is presented with the question of whether the evidence was sufficient to establish respondent's culpability on two charges that he violated Rule of Professional Conduct 8.4(c)¹ (hereinafter RPC). The precise issue to be resolved is whether respondent acted with reckless disregard for the truth when he leveled accusations of case fixing against certain jurists in a pleading filed in the Superior Court of Pennsylvania. For the reasons set forth herein, we find that respondent did violate RPC 8.4(c) on both counts and that the appropriate discipline is a five year suspension from the practice of law.

This disciplinary action traces its origins to a civil suit captioned Leedom v. Spano, commenced in the Court of Common Pleas of Delaware County at No. 89-12977 involving a mortgage foreclosure. Respondent, with his wife, were sureties on the original mortgage, making them defendants in the foreclosure action. When the matter proceeded to trial before a jury, all parties agreed that the court, not the jury, would decide the issue of respondent's liability as surety, as it was purely a question of law involving the applicable statute of limitations. The trial judge, the Honorable Harry J. Bradley, ultimately ruled against respondent in an order filed July 1, 1992. Respondent filed an appeal.

Respondent had not acted as counsel in the Leedom v. Spano matter before the trial court. However, respondent did enter his appearance as co-counsel on the appeal docket. On August 11, 1992, in his capacity as co-counsel, respondent filed a motion seeking the recusal of certain judges on the Pennsylvania Superior Court prior to designation of a Superior Court panel to hear argument in Leedom v. Spano. In the motion for recusal respondent made the following averments:

It is believed and averred by Movant Surrick that Judge Bradley was "fixed" by the Delaware County Republican Organization as a result of a deal between that organization and Justice Larsen whereby Justice Larsen would again exert his political influence on behalf of Judge McEwen who was again seeking to fill a vacant Supreme court seat and, in return, the Delaware County Republican Organization, through its control of the Delaware county Judges, would fix this case.

In litigation arising out of the termination of the Surrick/Levy law practice... Upon appeal to the superior court, judge Olszewski dismissed the appeal not on the basis of anything in the record or any issue raised by opposing counsel but on the basis of an alleged procedural defect in the record. Even the most cursory examination of the record will reflect that the alleged defect in the Record relied upon by Judge Olszewski does not and did not exist. It is the belief of Movant Surrick that the decision of Judge Olszewski was based upon outside intervention, as it could not have resulted from any rational legal analysis of the Record.

Motion for Recusal of Certain Superior Court Judges and Senior Judges Assigned to the Superior Court, Reproduced Record, Exhibit P5. (Emphasis in the original) (Grammatical, spelling and punctuation errors repeated as in original).

As a result of the allegations contained within the motion for recusal Disciplinary Counsel brought various charges against respondent.² Respondent waived the confidentiality of the proceedings and on July 26th through the 28th, hearings were held before a hearing committee of the Disciplinary Board of Pennsylvania. On January 17, 1997 the hearing committee issued a report recommending the dismissal of all charges. On October 17, 1997 the Disciplinary Board affirmed the dismissal of all charges. (Hereinafter "Board"). The Office of Disciplinary Counsel appealed the decision of the Board. This court remanded the matter to the Disciplinary Board on April 14, 1998, directing the Board to review the actions of respondent in accordance with this court's opinion in Office of Disciplinary Counsel v. Anonymous Attorney A, 552 Pa. 223, 714 A.2d 402 (1998). The Board heard argument from both parties following remand and issued an opinion on April 1, 1999 finding that respondent had violated RPC 8.4(c) regarding his allegations against Judge Olszewski. However, the Board did not find a violation regarding the allegations against Judge Bradley. Both respondent and petitioner filed cross petitions for review from the Board's decision. This court granted the cross petitions for review and directed the parties to specifically address the applicability of our decision in Office of Disciplinary Counsel v. Price, 557 Pa. 166, 732 A.2d 599 (1999) in their briefs to this court. The parties having complied with the directive of this court, the case is now ripe for disposition.

In attorney disciplinary matters our review is de novo. Office of Disciplinary Counsel v. Christie, 536 Pa. 394, 639 A.2d 782 (1994). This court is not bound by the findings or the recommendations of the Disciplinary Board, although we give those findings substantial deference. Id. at 783.

Disciplinary Counsel charges that respondent's allegations of case fixing aimed at Judge Bradley and Judge Olszewski were made with reckless ignorance of the truth or falsity of the statements. Respondent vehemently denies the charges and counters that he had a reasonable basis for believing the statements were true. The Office of Disciplinary Counsel has the burden of proving, by a preponderance of the evidence, that respondent's actions constitute professional misconduct. Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). This burden of proof must be established by clear and satisfactory evidence. Office of Disciplinary Counsel v. Duffield, 537 Pa. 485, 644 A.2d 1186 (1994). Disciplinary Counsel can meet this burden by presenting documentary evidence or testimony from the persons at whom the allegations were aimed that the statements are false. Office of Disciplinary Counsel v. Price, 557 Pa. 166, 732 A.2d 599 (1999). The burden then shifts to respondent to establish that the allegations are true or that following a reasonably diligent inquiry, he had formed an objective reasonable belief that the allegations were true. Id. at 604. A determination of misconduct in this case hinges upon whether respondent acted recklessly or with the support of a reasonable factual basis. Recklessness is shown by "the deliberate closing of one's eyes to facts that one had a duty to see or stating as fact, things of which one was ignorant". Anonymous Attorney A.,714 A.2d at 406.

Before we begin an examination of the specific allegations and the information upon which respondent relied in making the allegations, it is necessary to dispose of respondent's due process claim. Respondent objects to the retroactive application of a recklessness standard to this case as the conduct at issue occurred prior to this court's decision in Anonymous Attorney A. In Anonymous Attorney A, this court held that the element of scienter required to establish a prima facie violation of RPC 8.4(c) is made out upon a showing that a misrepresentation was made knowingly or with reckless ignorance of the truth or falsity thereof. Id. at 406. Respondent asserts that prior to Anonymous Attorney A, a violation of RPC 8.4(c) was found only where the misstatement was knowingly made and thus, the addition of recklessness as an alternative element of the violation created a fundamental change in the law. In respondent's view he was without notice at the time he made the statements at issue that such conduct would be sanctionable under the RPC. As to the question of notice, the record reflects that during the hearing in this case, Disciplinary Counsel argued that respondent's conduct was reckless. (Reproduced Record, hereinafter "RR" p. 166). Respondent was aware that Disciplinary Counsel believed a violation of RPC 8.4(c) could be sustained on a finding of reckless conduct. Also, Disciplinary Counsel asserts that rather than creating a new legal standard, Anonymous Attorney A merely clarified the obvious by definitively setting forth the element of scienter necessary to establish a violation of RPC 8.4(c).

Retroactive application of a new rule of law is a matter of judicial discretion. Cleveland v. Johns-Manville Corp., 547 Pa. 402, 690 A.2d 1146 (1997). The threshold inquiry is whether or not a new rule has been announced. Id. A new rule of law is established where an abrupt and fundamental shift from prior precedent, upon which litigants may have relied, has occurred. Blackwell v. Com. State Ethics Comm., 527 Pa. 172, 589 A.2d 1094 (1991).

Although numerous cases concerning violations of RPC 8.4(c) have been resolved by this tribunal, none of those cases raised a question of the mental culpability element of RPC 8.4(c) prior to Anonymous Attorney A. Violations of RPC 8.4(c) had been sustained in earlier decisions of this court where the conduct was intentional as well as where the conduct was negligent. See Office of Disciplinary Counsel v. Holston, 533 Pa. 78, 619 A.2d 1054 (1993)(Respondent forged a court document and lied about it to a judicial authority); Office of Disciplinary Counsel v. Geisler, 532 Pa. 56, 614 A.2d 1134 (1992) (Respondent made statements to his clients without knowing the accuracy of those statements). No precedent had declared only intentional conduct would violate RPC 8.4(c). Nor was it unforeseeable that this court would interpret RPC 8.4(c) as applicable to misstatements made with reckless disregard for the truth or falsity thereof. Anonymous Attorney A did not create a new legal...