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

Citations: 449 F.3d 520; 2006 U.S. App. LEXIS 13618Docket: 05-2615

Court: Court of Appeals for the Third Circuit; June 2, 2006; Federal Appellate Court

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Paul J. Killion, Chief Counsel of the Pennsylvania Office of Disciplinary Counsel, appeals a summary judgment from the United States District Court for the Eastern District of Pennsylvania favoring Robert Surrick. The court ruled that Surrick, an attorney suspended by the Pennsylvania Bar but authorized to practice in the Eastern District, could maintain a law office in Pennsylvania to support his federal practice, with specific conditions attached. Killion challenges the appeal's jurisdiction, claiming it is moot due to Surrick's non-compliance with court conditions, and asserts the case is not ripe for adjudication. On the merits, Killion contends the District Court erred in its ruling and urges alignment with the Pennsylvania Supreme Court's decision in Office of Disciplinary Counsel v. Marcone.

The appellate court affirms the District Court's judgment, confirming jurisdiction despite Surrick's failure to meet the ordered conditions, which included applying for reinstatement to the Pennsylvania Bar by specified deadlines. The court emphasizes that Surrick's ability to maintain his law office is a temporary measure contingent upon compliance with the Bar's requirements, including payment of disciplinary costs and enrollment in Continuing Legal Education courses. Although Surrick has indicated he would fulfill these obligations if he prevails on appeal, the court notes his lack of good faith compliance. While it refrains from vacating the District Court's order, it directs Surrick to promptly meet the reinstatement conditions.

Surrick was admitted to the Pennsylvania Bar in 1961 and to the U.S. District Court for the Eastern District of Pennsylvania in 1966. On March 24, 2000, he was suspended from the Pennsylvania Bar for five years following disciplinary proceedings due to reckless accusations of case fixing against judges. The Eastern District imposed a reciprocal thirty-month suspension. The Pennsylvania Supreme Court criticized Surrick for using his self-perceived role as a justice advocate to deflect accountability for his unsubstantiated claims and noted his tendency for character assassination when faced with adverse rulings, which undermined his fitness to practice law.

Surrick was readmitted to the Eastern District Bar on May 17, 2004. However, an August 16, 2004, ruling in Marcone established that a lawyer suspended from Pennsylvania courts could not maintain a law office in the state if not authorized to practice there. On December 7, 2004, Surrick filed a declaratory judgment action against Chief Disciplinary Counsel Paul Killion and justices of the Pennsylvania Supreme Court, arguing that the Marcone ruling violated federal law and expressed concern over potential sanctions if he opened a law office. He sought a declaration to permit establishing an office solely for supporting his federal practice and a preliminary injunction against disciplinary actions. His claims were based on the Supremacy Clause and the First Amendment. The Office of Disciplinary Counsel moved to dismiss the case, citing ripeness and failure to state a claim. Hearings were held on January 24 and March 7, 2005, where Surrick indicated his intention to open an office focused on federal malpractice cases.

The Office of Disciplinary Counsel provided expert testimony indicating that attorneys can practice law without a traditional office due to modern technology. On April 20, 2005, the District Court granted partial declaratory relief for Surrick, permitting him to establish a legal office in Philadelphia, subject to eight specific conditions. These conditions include: (a) authorization to open a law office for federal practice only; (b) a requirement to apply for reinstatement to the Pennsylvania Bar by April 15, 2005; (c) prohibition on external signage or advertising related to his federal practice; (d) a mandate to clearly state on all professional materials the limitation of his practice to the U.S. District Court for the Eastern District of Pennsylvania; (e) restrictions against providing state law legal advice and referral obligations for state matters; (f) authorization to represent clients on federal matters; (g) an obligation to inform clients of his limited practice admission and suspension from state court; and (h) a requirement to direct clients with ethical complaints to the appropriate authorities. The District Court denied Surrick's request for injunctive relief and did not consider his First Amendment claims. Following his application for reinstatement to the Pennsylvania Bar on May 13, 2005, the application was returned as incomplete. The Office of Disciplinary Counsel noted that Surrick had not paid disciplinary costs or completed the required continuing legal education (CLE) courses, which Surrick disputes, claiming he is not obligated to do so until his appeal is resolved. On May 24, 2005, the Office filed a motion for relief under Rule 60(b) or to stay the order, which the District Court denied on May 25, citing lack of jurisdiction and stating that Surrick had not been given sufficient opportunity to amend his application. The Office asserts that Surrick’s noncompliance with the District Court's conditions makes the appeal moot, highlighting that he failed to commence the reinstatement process by the required date.

The Office of Disciplinary Counsel asserts that Surrick's claim regarding disputed costs and awaiting an appeal outcome is invalid, emphasizing that he should have challenged the costs before the Pennsylvania Supreme Court. The mootness analysis begins with the principle that federal courts cannot address issues that do not impact the litigants' rights, as established in DeFunis v. Odegaard. Article III mandates that a live controversy must exist throughout the review process, not just at the complaint's filing. A key factor in assessing mootness is whether changes since litigation began prevent any meaningful relief. The burden of proving mootness is substantial. 

The court agrees with the Office of Disciplinary Counsel that Surrick has not complied with the District Court's order in good faith, but determines the case is not moot at this stage because the District Court's order remains active, and Surrick is still operating his law office without reinstatement by the Pennsylvania Bar. Consequently, the court maintains jurisdiction to address the legal issues and the parties' actions. While Surrick's conduct is criticized, it is not severe enough to invalidate the District Court's judgment. Instead, Surrick is ordered to pay the disputed costs and enroll in required Continuing Legal Education (CLE) courses within ten days. The court concludes that both parties retain a concrete interest in the case's outcome, which precludes mootness. 

Additionally, the Office of Disciplinary Counsel argues that Surrick's complaint does not present a justiciable case, claiming it is not ripe since no disciplinary threat has been made. However, the District Court disagreed, citing a clear threat of contempt sanctions based on the Marcone decision, asserting that this threat has deterred Surrick from opening a law office in Pennsylvania. The appellate review of the District Court's ripeness finding is conducted with full scrutiny.

Ripeness doctrine prevents courts from engaging in abstract disputes, requiring a real, substantial controversy that allows for specific relief rather than hypothetical opinions. To determine if a case is ripe, courts assess the fitness of issues for decision and the hardship to parties from delaying court consideration. In Step-Saver Data Systems, Inc. v. Wyse Technology, a refined test for pre-enforcement review in declaratory judgment actions was established, necessitating adverse legal interests, concrete facts for a conclusive judgment, and usefulness of the judgment to the parties.

In examining the adversity of parties' interests, courts consider whether the claim involves uncertain events or presents a substantial threat of harm. A party does not need to demonstrate completed harm to establish adversity, as long as a significant threat of harm exists. The District Court correctly found this adversity present in Surrick's case, which mirrors the situation in Marcone, where a suspended attorney was prohibited from maintaining a law office in Pennsylvania. The Pennsylvania Supreme Court ruled against the attorney, emphasizing that maintaining an office would violate disciplinary rules.

Surrick, also a suspended attorney, intends to open a legal office to support his practice in the Eastern District of Pennsylvania. The District Court determined that Surrick's fear of sanctions has deterred him from opening the office, a finding that is upheld. Furthermore, the Office of Disciplinary Counsel has not provided assurance that Surrick would not face similar penalties as in Marcone. Consequently, the threat of sanctions against Surrick is sufficiently real and substantial, fulfilling the first prong of the Step-Saver inquiry. The Supreme Court has clarified that one does not need to wait for a threatened injury to occur to seek preventive relief; a certainly impending injury is sufficient.

The second Step-Saver factor evaluates the appropriateness of adjudicating the issue to ensure that a declaratory judgment would resolve the parties' rights rather than provide an advisory opinion based on hypothetical scenarios. Legal questions, particularly regarding federal preemption, are suitable for definitive resolution without extensive factual development. In this case, Surrick argues that the Office of Disciplinary Counsel's disciplinary practices conflict with the Eastern District of Pennsylvania's exclusive authority over attorney admissions, raising a legal question of federal preemption. Surrick provided testimony outlining his intended compliance with legal practice guidelines, which the District Court conditioned its order upon. Further factual development is deemed unnecessary for resolving the preemption question. 

The final Step-Saver factor considers whether a declaratory judgment would alleviate legal uncertainties affecting the parties' actions. The District Court noted that Surrick's fear of sanctions has deterred him from opening a law office, and a declaratory judgment would enable him to do so without fear of penalties while clarifying operational guidelines. All three Step-Saver factors are satisfied: there is a significant threat of sanctions, no further factual development is needed, and a declaratory judgment would materially influence the parties' actions. Thus, the case is deemed ripe for adjudication. Furthermore, while admission to a state's bar is a standard for federal bar admission, the two systems operate independently, and disqualification from a state bar does not automatically result in disqualification from federal practice.

Federal courts possess the authority to grant privileges and impose restrictions on their members, but must respect state interests, as highlighted by the Pennsylvania Supreme Court in Marcone regarding the regulation of legal practice. In this unique case, the impending conclusion of Surrick's suspension and the limited allowance to maintain an office leads to the conclusion that the District Court's ruling is not excessively infringing on state prohibitions. The central issue is whether a state can prevent an attorney, suspended from the state bar but admitted to a federal district court, from keeping an office solely for federal court practice. The analysis references Sperry v. State of Florida, where the U.S. Supreme Court ruled that a state could not bar a patent practitioner from filing with the federal Patent Office, asserting that state law must yield to federal law under the Supremacy Clause if they conflict. The Court emphasized that states cannot impose additional licensing requirements that interfere with federal determinations. The Office of Disciplinary Counsel argues that Sperry is not applicable here due to the absence of explicit congressional permission for Surrick to maintain an office and because federal diversity actions involve state law. However, these arguments are dismissed. Under the Supremacy Clause, federal law preempts state law when they conflict, and this case exemplifies conflict preemption, where state restrictions obstruct federal objectives.

Federal courts possess the authority to regulate their bar admissions and discipline attorneys, independent of state court rules, as established by Supreme Court precedent and statutory authority (28 U.S.C. § 2071(a)). The Eastern District of Pennsylvania has enacted Rule 83.6 VII(I), allowing attorneys suspended from state bars to practice before it, thus affirming that the Commonwealth cannot prevent Surrick from practicing in this federal court. 

The contention arises regarding whether state law prohibiting Surrick from maintaining a law office is preempted by the federal court's authority. The Office of Disciplinary Counsel argues that conflict preemption is inapplicable here, differentiating this case from Sperry, where federal law explicitly allowed non-lawyers to engage in specific legal activities. It misinterprets the preemption doctrine, as federal law not only preempts state laws that directly contradict federal statutes but also those that obstruct the federal law’s objectives. 

The Supreme Court in Sperry indicated that practitioners must be allowed to perform related tasks to their federal licenses. The broad interpretation of the Supremacy Clause prevents state laws from undermining federal laws by imposing additional conditions. The critical issue is whether maintaining a law office is reasonably encompassed within the federal license to practice law. The District Court concludes that it is, asserting that Pennsylvania's regulations impede Surrick's federally granted right to practice law. Although the Pennsylvania Supreme Court reached a different conclusion in Marcone regarding the regulation of law offices, the federal court maintains that such state regulation does not equate to conflict preemption without additional burdens.

Maintaining a physical office is deemed essential for practicing law, as it facilitates confidential client interactions and the storage of necessary legal materials. Expert testimony in the District Court indicated that despite technological advancements, a physical space is crucial for effective legal representation. The court found that prohibiting an attorney from having an office would hinder their ability to litigate effectively in the Eastern District, thus impacting their right to practice law.

The analysis rejected the Pennsylvania Supreme Court's stance, asserting that federal authority to determine who may practice before it preempts state regulations that limit an attorney's ability to maintain a law office. The court emphasized that federal preemption does not require balancing state and federal interests; if a conflict exists, state law must yield. The Office of Disciplinary Counsel's argument regarding the nature of the cases an attorney intends to handle was dismissed, affirming that federal courts have the authority to regulate practice independently of state law concerns.

The decision was made with regard to maintaining respect for the Pennsylvania Supreme Court, clarifying that it does not overrule any state court decisions but rather operates within the framework of federal law, which can supersede state law when conflicts arise.

Final judgments from the highest state courts can be reviewed by the Supreme Court, as noted in 28 U.S.C. 1257. Decisions by the Pennsylvania Supreme Court do not bind federal courts regarding federal law, and similarly, federal courts' decisions do not bind Pennsylvania courts, even in cases involving federal questions. This principle is supported by relevant Pennsylvania case law, which has consistently refused to adopt interpretations of federal law conflicting with state court rulings. While consistency between state and federal courts is beneficial to avoid forum-shopping, the federal system allows for differing legal conclusions between sovereigns.

Moreover, recent developments in the Eastern District of Pennsylvania, specifically Local Rule 83.6 VII(C), address potential conflicts by requiring that federal reinstatement be paused until state practice reinstatement is resolved. In the current case, the District Court granted Surrick a temporary reprieve from oversight by the Commonwealth of Pennsylvania, necessitating his application for reinstatement to the Pennsylvania Bar by May 15, 2005. However, Surrick has not complied with this order, as he did not pay the costs associated with his disciplinary proceedings or complete the required 36 hours of Continuing Legal Education (CLE). His prolonged failure to meet these obligations is concerning, particularly since his suspension ended on March 24, 2005, making the outcome of the appeal irrelevant to his need to reapply to the Pennsylvania Bar and fulfill CLE requirements. Furthermore, issues related to the costs of disciplinary proceedings fall outside federal jurisdiction, being strictly a matter for Pennsylvania courts. The document emphasizes that no further delays will be tolerated.

The declaratory judgment of the District Court is affirmed, imposing specific conditions on Surrick. He must file a completed application for reinstatement to the Pennsylvania Bar within ten days of the Court's mandate, pay all necessary costs, enroll in required Continuing Legal Education (CLE) courses, and fulfill all other reinstatement requirements. If there are disputes regarding the amounts owed to the Commonwealth, Surrick is to pay the requested amount and seek reimbursement through appropriate Pennsylvania administrative channels or its Supreme Court, not through federal court. Failure to comply will result in Surrick being deemed in violation of the judgment, leading to a mandate to close his law office until reinstatement. The authority of this order is exclusive to this Court, with no other court in the Third Judicial Circuit able to modify it. The mandate will be issued promptly. Additionally, the Pennsylvania Supreme Court rejected arguments regarding federal authority over law practice, affirming that preventing an attorney from maintaining an office for federal representation does not significantly infringe on federal court authority. The Office of Disciplinary Counsel argues that the District Court's order conflicts with prior cases, specifically Marcone, despite attempts to address the Commonwealth's concerns. The court notes that the only significant distinction from Marcone is the presence of a public sign in that case, which posed a greater risk of confusion. Local Rule 83.6 VII(I) permits an attorney reinstated by this Court to practice before it, regardless of state court reinstatement status, but does not authorize practice in other jurisdictions. The Office of Disciplinary Counsel’s interpretation of Marcone concerning home offices is met with skepticism by the court.

The requirement for the District Court to evaluate each attorney's personal living circumstances to assess the feasibility of establishing a home office is deemed unnecessary. It is sufficient that having a separate law office is generally integral to practicing law. The Office of Disciplinary Counsel (ODC) mistakenly suggests that Marcone relied on this point to conclude that federal preemption is not applicable; however, Marcone's analysis focused on the interaction of state and federal law, asserting that maintaining a legal office for federal court practice is a "law-related activity" subject to state regulation. The argument acknowledges that absent conflicting federal law, Pennsylvania can prohibit suspended attorneys from maintaining offices for federal court practice. Additionally, it affirms that under Florida law, preparing and prosecuting patent applications for others constitutes practicing law, which Florida has a legitimate interest in regulating. It critiques the ODC's oversimplified distinction, noting that many diversity cases involve laws from states other than the forum state and that many federal question cases hinge on state law, thereby complicating the criteria for an attorney's admission to a federal court.