Ofc Disciplinary v. Surrick ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
8-1-2003
Ofc Disciplinary v. Surrick
Precedential or Non-Precedential: Precedential
Docket No. 01-2783P
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PRECEDENTIAL
Filed August 1, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-2783
IN RE:
ROBERT B. SURRICK,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 00-mc-00086)
District Judge: Honorable James T. Giles
Argued December 18, 2002
Before: ROTH, FUENTES and COWEN, Circuit Judges
(Opinion filed: August 1, 2003)
Howard J. Bashman1 (Argued)
Buchanan Ingersoll
1835 Market Street
Eleven Penn Center, 14th Floor
Philadelphia, PA 19103
Counsel for Amicus Curiae
1. The Court appreciates the fine service performed by Howard J.
Bashman, Esq., at the Court’s request, in presenting the brief for Amicus
Curiae in support of affirmance.
2
Samuel E. Klein, Esquire
Jeffrey G. Weil, Esquire (Argued)
Brian Hirsch, Esquire
Dechert, Price & Rhoads
1717 Arch Street
4000 Bell Atlantic Tower
Philadelphia, PA 19103
Counsel for Appellant
OPINION OF THE COURT
ROTH, Circuit Judge:
This appeal arises out of reciprocal attorney disciplinary
proceedings in the United States District Court for the
Eastern District of Pennsylvania. The Pennsylvania
Supreme Court had suspended appellant Robert Surrick
from the practice of law for a period of five years after it
concluded that he had violated a provision of the Rules of
Professional Conduct by falsely accusing two lower court
judges of “fixing” cases. Following an independent review of
the state disciplinary proceedings, the en banc District
Court held that reciprocal discipline was warranted but
limited the term of Surrick’s suspension to thirty months,
or half that imposed by the state court. On appeal, Surrick
argues that the imposition of reciprocal discipline was
inappropriate because the state proceedings upon which
the District Court relied violated his rights of due process
and free speech. Because we conclude that the District
Court did not abuse its discretion in electing to suspend
Surrick for a period of thirty months, we will affirm the
judgment of the District Court.
I. Factual Background and Procedural History
The facts relevant to Surrick’s underlying state court
suspension are drawn from the opinion of the Pennsylvania
Supreme Court and the Report and Recommendation
issued by the initial District Court panel. See Office of
Disciplinary Counsel v. Surrick, 749 A.2d 441, 442-443 (Pa.
2000) (Surrick I); In re Surrick, No. MISC. 00-086, 2001 WL
3
120078 (E.D. Pa. Feb. 7, 2001) (Surrick II). Surrick and his
wife were defendants in Leedom v. Spano, Case No. 89-
12977 in the Court of Common Pleas of Delaware County,
a case which involved the foreclosure of a mortgage for
which they were sureties. By stipulation of the parties, the
issue of liability was submitted to the court. Judge Harry J.
Bradley entered judgment against Surrick and his wife in
July 1992.
On appeal to the Superior Court, Surrick entered an
appearance as co-counsel and, in August 1992, filed a
motion for the recusal of certain judges prior to the
designation of the appellate panel. This motion stated, in
relevant part:
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.
749 A.2d at 443 (ellipses and emphasis in original).2
2. Surrick has a well-documented history as an outspoken critic of the
Pennsylvania judiciary dating back to his appointment to the Judicial
Inquiry and Review Board in 1980. Because these facts are discussed in
detail by the Pennsylvania Supreme Court, see Surrick I, 749 A.2d at
446-49, we find it unnecessary to repeat them here.
4
The Office of Disciplinary Counsel investigated Surrick’s
allegations and, as a result, filed charges against him and
convened a Special Hearing Committee of the Disciplinary
Board. After due deliberation, the Special Hearing
Committee issued a Report and Recommendation
concluding that all charges should be dismissed. The Office
of Disciplinary Counsel objected to the Report and
Recommendation and sought oral argument before the
Disciplinary Board. On October 17, 1997, the Board issued
an opinion and order rejecting the arguments asserted by
the Office of Disciplinary Counsel and dismissing the
charges against Surrick.
The Office of Disciplinary Counsel filed a petition for
allowance of appeal with the Pennsylvania Supreme Court.
The court remanded the case to the Disciplinary Board on
April 14, 1998, with instructions that the Board reconsider
its prior recommendation in light of the then-recent
decision in Office of Disciplinary Counsel v. Anonymous
Attorney A, 714 A.2d 402 (Pa. 1998).
On remand, the Disciplinary Board determined that
Surrick had violated Rule 8.4(c)3 of the Rules of
Professional Conduct (RPC) in making his allegations
against Judge Olszewski but found no violation in the
allegations against Judge Bradley. The Pennsylvania
Supreme Court then granted the parties’ cross-petitions for
review and directed both sides to file briefs addressing the
applicability of its more recent decision in Office of
Disciplinary Counsel v. Price, 732 A.2d 599 (Pa. 1999). After
consideration of the parties’ arguments, a unanimous
Pennsylvania Supreme Court held that Surrick had violated
RPC 8.4(c) with respect to his charges against both Judge
Olszewski and Judge Bradley. Surrick I, 749 A.2d at 447-
49. The court therefore suspended Surrick’s license to
practice law in the Commonwealth for a period of five years,
effective March 24, 2000. Id. at 449.
Pursuant to Rule II(B)(2) of the Rules of Attorney Conduct
3. RPC 8.4(c) states that “[i]t is professional misconduct for a lawyer to
engage in conduct involving dishonesty, fraud, deceit or
misrepresentation.”
5
(RAC) for the Eastern District of Pennsylvania,4 the District
Court, in response to the decision of the Pennsylvania
Supreme Court, issued an order on May 10, 2000,
requiring Surrick to show cause why reciprocal discipline
should not be imposed upon him pursuant to RAC II(D). In
his reply, Surrick asserted that reciprocal discipline was
inappropriate because the decision of the Pennsylvania
Supreme Court lacked proof and violated his rights of
procedural due process and free speech. On February 7,
2001, a three judge panel of the District Court, following its
review of the state disciplinary proceedings and the
arguments of the parties, issued a Report and
Recommendation concluding that no reciprocal discipline
should be imposed on Surrick. See Surrick II, 2001 WL
120078. This recommendation was rejected by a majority of
the non-recused active and senior judges of the Eastern
District of Pennsylvania, and the matter was referred to a
new three judge panel for consideration of the proper
punishment. Following a hearing, this second panel issued
an Amended Report and Recommendation on June 12,
2001, concluding that Surrick should be suspended for a
period of thirty months retroactive to April 24, 2000.
On June 21, 2001, by a vote of seventeen to nine, the
twenty-six non-recused active and senior district judges
adopted the second panel’s Amended Report and
Recommendation. See In re Surrick, No. MISC. 00-086,
2001 WL 1823945 (E.D. Pa. June 21, 2001) (Surrick III).
Surrick’s thirty month suspension was made retroactive to
April 24, 2000, the date of his state court suspension. The
suspension expired on October 24, 2002.
Surrick appealed his District Court suspension.
II. Jurisdiction and Standard of Review
The District Court has the inherent authority to set
4. The Rules of Attorney Conduct (RAC) are codified in Rule 83.6 of the
Eastern District of Pennsylvania’s Local Rules of Civil Procedure. For
ease of reference, Pennsylvania’s Rules of Professional Conduct will be
referred to throughout this Opinion as “RPC”, and the Rules of Attorney
Conduct contained in Local Rule 83.6 will be referred to as “RAC”.
6
requirements for admission to its bar and to discipline
attorneys who appear before it. See In re Mitchell, 901 F.2d
1179, 1183 (3d Cir. 1990); In re Abrams, 521 F.2d 1094,
1099 (3d Cir. 1975). We have jurisdiction to review the final
order of the District Court pursuant to 28 U.S.C. § 1291.
We review district courts’ decisions regarding the regulation
of attorneys who appear before them for abuse of
discretion. Richardson v. Hamilton Int’l Corp., 469 F.2d
1382, 1386 (3d Cir. 1972). Our review of the District
Court’s interpretation of legal precepts is plenary. Epstein
Family Partnership v. Kmart Corp., 13 F.3d 762, 765-66 (3d
Cir. 1994).
III. Discussion
A. Mootness
Because “ ‘[t]he existence of a case or controversy is a
prerequisite to all federal actions,’ ” Philadelphia Fed’n of
Teachers v. Ridge, 150 F.3d 319, 322-23 (3d Cir. 1998)
(quoting Presbytery of N.J. of Orthodox Presbyterian Church
v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994)), we must begin
by examining our jurisdiction to consider the matter before
us. Although it is well-established that “bar admissions, bar
disciplinary actions, and disbarments are essentially
judicial in nature and thus present a case or controversy
under Article III,” In re Calvo, 88 F.3d 962, 965 (11th Cir.
1996), we must determine whether Surrick’s appeal was
mooted when the term of his District Court suspension
expired on October 24, 2002.
As we have previously held, “[a] case will be considered
moot, and therefore nonjusticiable as involving no case or
controversy, if the issues presented are no longer ‘live’ or
the parties lack a legally cognizable interest in the
outcome.” In re Kulp Foundry, Inc., 691 F.2d 1125, 1128
(3d Cir. 1982) (citation and internal quotation omitted). Our
analysis of whether a case is moot “traditionally begins with
‘the requirement of Article III of the Constitution under
which the exercise of judicial power depends upon the
existence of a case or controversy.’ ” International Bhd. of
Boilermakers v. Kelly, 815 F.2d 912, 914 (3d Cir. 1987)
(quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)).
7
The existence of a case or controversy, in turn, requires
“ ‘(1) a legal controversy that is real and not hypothetical,
(2) a legal controversy that affects an individual in a
concrete manner so as to provide the factual predicate for
reasoned adjudication, and (3) a legal controversy with
sufficiently adverse parties so as to sharpen the issues for
judicial resolution.’ ” Id. at 915 (quoting Dow Chem. Co. v.
United States Envtl. Protection Agency, 605 F.2d 673, 678
(3d Cir. 1979)).
Furthermore, “[i]n addition to its threshold constitutional
dimension, mootness doctrine incorporates prudential
considerations as well.” International Bhd. of Boilermakers,
815 F.2d at 915. “Thus, in applying the mootness doctrine,
courts, in addition to satisfying the requirements of Article
III, ‘must answer the more policy-oriented question whether
the parties before it have, at the time for decision sufficient
functional adversity to sharpen the issues for judicial
resolution.’ ” Id. (quoting Dow Chem., 605 F.2d at 677-78).
Accordingly, “ ‘the central question of all mootness
problems is whether changes in circumstances that
prevailed at the beginning of the litigation have forestalled
any occasion for meaningful relief.’ ” Id. (quoting Jersey
Cent. Power & Light Co. v. State of N.J., 772 F.2d 35, 39 (3d
Cir. 1985)).
In addressing such questions, we have recognized three
exceptions that should be considered prior to any
determination of mootness:
(1) whether the appellant has expeditiously taken all
steps necessary to perfect the appeal and to preserve
the status quo before the dispute becomes moot, (2)
whether the trial court’s order will have possible
collateral consequences, and (3) whether the dispute is
of such a nature that it is capable of repetition yet
evading review.
Kulp Foundry, 691 F.2d at 1129.
We need not address the applicability of first and third
exceptions noted above, as the continuing stigma resulting
from his suspension places Surrick’s appeal squarely
within the second. See Dailey v. Vought Aircraft Co., 141
F.3d 224, 228 (5th Cir. 1998) (finding that the appeal of an
8
attorney who was disbarred and then reinstated was not
moot because even temporary disbarment is harmful to a
lawyer’s reputation, and “the mere possibility of adverse
collateral consequences is sufficient to preclude a finding of
mootness”) (citation and internal quotation omitted); see
also In re Hancock, 192 F.3d 1083, 1084 (7th Cir. 1999)
(citing Dailey for the proposition that a suspended
attorney’s appeal was not mooted by his payment of the
imposed sanction and subsequent reinstatement); Kirkland
v. National Mortgage Network, Inc., 884 F.2d 1367, 1370
(11th Cir. 1989) (holding that attorney’s appeal of the
revocation of his pro hac vice status was not moot following
dismissal of the underlying case because “the ‘brand of
disqualification’ on grounds of dishonesty and bad faith
could well hang over his name and career for years to
come”); Kleiner v. First Nat’l Bank of Atlanta, 751 F.2d
1193, 1200 n.14 (11th Cir. 1985) (noting that “the brand of
disqualification was not lifted at the close of the
proceedings. The disciplinary action and consequent
disqualification may expose counsel to further sanctions by
the bar and portends adverse effects upon counsel’s careers
and public image. The effects of disqualification will linger
long after the closing of the case. The controversy thus
remains live and demands consideration.”). Further,
Surrick’s suspension has a continuing effect on his ability
to practice before the District Court, as RAC VII(A) provides
that attorneys suspended for more than three months must
apply for reinstatement.5 Thus, we conclude that Surrick’s
claim satisfies the collateral consequences exception to the
doctrine of mootness and that we have jurisdiction to
consider the merits of his appeal.
B. Reciprocal Disciplinary Proceedings
The starting point for our review of federal district court
disciplinary proceedings is the recognition that individual
district courts, “like all federal courts, ha[ve] the power both
to prescribe requirements for admission to practice before
that court and to discipline attorneys” who appear before
5. Surrick is presently living in Florida and not practicing law, but, as
his attorney stated at oral argument, he may some day decide to return
to Pennsylvania and to resume his law practice.
9
them. Abrams, 521 F.2d at 1099; see also In re Kramer,
193 F.3d 1131, 1132 (9th Cir. 1999) (citing cases for the
proposition that “[t]here is little question but that district
courts have the authority to supervise and discipline the
conduct of attorneys who appear before them.”). “This
includes the inherent authority to suspend or disbar
lawyers,” provided such power is “exercised within the
parameters of due process.” Kramer, 193 F.3d at 1132(citations and internal quotations omitted).
A reciprocal disciplinary proceeding such as the one at
issue here, in which a federal court initiates action against
a member of its bar based on the outcome of a state
disciplinary proceeding against that attorney, requires
federal courts to conduct an independent review of the state
disciplinary proceeding prior to imposing punishment.
Indeed, it is well-settled that, although state bar
membership is required of those seeking admission to
practice before the federal district courts of a given state,
“disbarment by the [s]tate does not result in automatic
disbarment by the federal court.” In re Ruffalo, 390 U.S.
544, 547 (1968). Rather, although the decisions of state
courts in such matters are “entitled to respect,” they are
“not conclusively binding on the federal courts.” Id.However, “[i]n striking the appropriate balance . . .
district courts must not operate in a vacuum. If the
disciplinary proceedings derive from state court action,
federal courts are not totally free to ignore the original state
proceedings.” Abrams, 521 F.2d at 1099-1100 (citing
Theard v. United States, 354 U.S. 278 (1957)). Instead, they
must “examine the state proceeding for consistency with
the requirements of due process, adequacy of proof and
absence of any indication that imposing discipline would
result in grave injustice.” In re Jacobs, 44 F.3d 84, 88 (2d
Cir. 1994) (citing Selling v. Radford, 243 U.S. 46, 51
(1917)). More specifically, as the Supreme Court has held,
federal courts should impose reciprocal discipline unless
“an intrinsic consideration of the state record” indicates one
of the following infirmities:
1. That the state procedure, from want of notice or
opportunity to be heard, was wanting in due process;
2, that there was such an infirmity of proof as to facts
10
found to have established the want of fair private and
professional character as to give rise to a clear
conviction on [the part of the federal court] that [it]
could not, consistent[ ] with [its] duty, accept as final
the conclusion on that subject; or 3, that some other
grave reason exist[s] which should convince [the federal
court] that to allow the natural consequences of the
judgment to have their effect would conflict with the
duty which rests upon [the court] not to disbar except
upon the conviction that, under the principles of right
and justice, [it is] constrained so to do.
Selling, 243 U.S. at 51; see also Theard, 354 U.S. at 282.
RAC II(D), which governed the proceedings below, was
enacted on the basis of this ruling. See In re Pawlak, No.
94-211, 1995 WL 723177 at *4 (E.D. Pa. Dec. 1, 1995).6
Moreover, attorneys subject to reciprocal discipline in
federal court bear the burden of demonstrating, “by clear
and convincing evidence, that one of the Selling elements
6. RAC II(D) provides as follows:
D. Upon the expiration of 30 days from service of the notice issued
pursuant to the provisions of (B) above and after an opportunity for
any attorney contesting the imposition of the identical discipline or
prohibition to be heard by one or more judges designated by the
Chief Judge, this court shall impose the identical discipline unless
the respondent-attorney demonstrates, or this court finds, that
upon the face of the record upon which the discipline or prohibition
in another jurisdiction is predicated it clearly appears:
1. that the procedure was so lacking in notice or opportunity to
be heard as to constitute a deprivation of due process; or
2. that there was such an infirmity of proof as to give rise to the
clear conviction that this court could not, consistent with its duty,
accept as final the conclusion on that subject; or
3. that the imposition of the same discipline or prohibition by
this court would result in grave injustice; or
4. that the misconduct or other basis established for the
discipline or prohibition is deemed by this court to warrant
substantially different action.
Where this court determines that any of said elements exist, it shall
enter such other order as it deems appropriate.
11
precludes reciprocal discipline.” In re Kramer, 282 F.3d
721, 724-25 (9th Cir. 2002) (citing cases). Thus, there is no
entitlement to a de novo trial before the District Court. See
In re Alker, 307 F.2d 880, 881 (3d Cir. 1962); see also
Calvo, 88 F.3d at 967. Rather, the District Court need only
“determine whether the record underlying the predicate
state disbarment reveals the kind of infirmities identified in
Selling.” Calvo, 88 F.3d at 967 (citation and internal
quotations omitted).
Finally, as we noted in Abrams, “we perceive our role in
reviewing the district court’s action to be extremely limited.”
521 F.2d at 1101. In particular, it consists of the following:
(1) To recognize and reinforce an absolute and
unfettered power of the district court to admit and to
discipline members of its bar independently of and
separately from admission and disciplinary procedures
of (a) the state courts and (b) this court.
* * *
(3) To recognize that an absolute and unfettered power
of the district court to discipline lawyers may be
circumscribed to the extent the district court, in
imposing its disciplinary sanctions, relies upon a
state’s legal or factual determinations. Stated
otherwise, the district court’s action may be
circumscribed to the extent it depends in whole or in
part on a state’s actions, either for the commencement
of the disciplinary proceedings or for a stated basis in
the determination of the sanction imposed.
Id. It is against this backdrop that we consider the
proceedings at issue here.
C. Surrick’s Due Process and First Amendment
Arguments
The issue before us on this appeal is whether the en banc
District Court abused its discretion in relying on the state
court proceedings as the basis for its decision to impose
reciprocal discipline upon Surrick. In rejecting the
conclusion of the initial panel and adopting the Amended
Report and Recommendation, the District Court noted that
12
it was required to impose reciprocal discipline “unless it
‘clearly’ appeared to the court” that at least one of the four
elements of RAC II(D) was satisfied. Surrick III, 2001 WL
1823945 at *1.
Following its review of the state disciplinary proceedings,
the District Court determined that none of the RAC II(D)
conditions were met in this case. In support of this
conclusion, the District Court noted that (1) not even the
first District Court panel, which opposed the imposition of
reciprocal discipline, concluded that the state disciplinary
proceedings violated Surrick’s right to due process; (2) there
was no infirmity of proof, particularly in view of the fact
that Surrick admitted during the state disciplinary
proceedings “that he had no objective factual basis for the
accusations he made in his sworn affidavit to the state
court about purportedly corrupt conduct by a state judge”;
and (3) the Amended Report and Recommendation, issued
by the second District Court panel, took into account the
fact that the five year suspension meted out by the state
court exceeded that of other comparable cases, and
therefore recommended a suspension of only half that
duration. Surrick III, 2001 WL 1823945 at *1.
In asserting that the District Court abused its discretion
by so concluding, Surrick contends first that the District
Court erred in failing to find a due process violation in the
Pennsylvania Supreme Court’s retroactive application of
Anonymous Attorney A and of Price to his case. He next
argues that the District Court’s conclusion that a second
evidentiary hearing would be futile was based on an
improper reading of the initial panel’s Report and
Recommendation. Finally, Surrick asserts that the
imposition of reciprocal discipline violates his First
Amendment rights and therefore constitutes a grave
injustice. We address each argument in turn.
In considering Surrick’s due process argument, we begin
by reiterating our prior observation that, although attorney
disciplinary proceedings “ha[ve] consequences which
remove [them] from the ordinary run of civil case[s],” they
are “not criminal in nature.” Abrams, 521 F.2d at 1099. It
therefore follows that the protections normally afforded
criminal defendants are not required here. See In re
13
Palmisano, 70 F.3d 483, 486 (7th Cir. 1995) (noting that
the Supreme Court’s decision in Ruffalo “does not require
courts to employ the procedures of the criminal law in
disbarment matters”); In re Cordova-Gonzalez, 996 F.2d
1334, 1336 (1st Cir. 1993) (holding that, “[a]lthough
attorney discipline proceedings have been called ‘quasi-
criminal,’ In re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222,
1226, 20 L.Ed. 2d 117 (1968), the due process rights of an
attorney in a disciplinary proceeding ‘do not extend so far
as to guarantee the full panoply of rights afforded to an
accused in a criminal case.’ ”) (quoting Razatos v. Colorado
Supreme Court, 746 F.2d 1429, 1435 (10th Cir. 1984));
Rosenthal v. Justices of the Supreme Court of Cal., 910 F.2d
561, 564 (9th Cir. 1990) (holding that “[a] lawyer
disciplinary proceeding is not a criminal proceeding. As a
result, normal protections afforded a criminal defendant do
not apply.”) (citations omitted).
With this background in mind, we consider Surrick’s due
process argument. In Anonymous Attorney A, the
Pennsylvania Supreme Court held that, although it had not
expressly decided the issue of the mental state necessary to
establish culpability for misstatements made in violation of
RPC 8.4(c), it would follow the lead of other states with
identical versions of the rule that had rejected a
requirement of actual knowledge. 714 A.2d at 406-07.
Thus, the Pennsylvania Supreme Court, in accordance with
existing decisions in other jurisdictions, held that “a
culpable mental state greater than negligence is necessary
to establish a prima facie violation of [RPC] 8.4(c),” and that
“[t]his requirement is met where the misrepresentation is
knowingly made, or where it is made with reckless
ignorance of the truth or falsity thereof.” Id. at 407. Surrick
now asserts that the District Court erred in failing to
conclude that the Pennsylvania Supreme Court’s retroactive
application of this ruling to his case was a violation of due
process that precluded the imposition of reciprocal
discipline.
We disagree. It is well-settled “that a judicial alteration of
a common law doctrine of criminal law violates the
principle of fair warning, and hence must not be given
retroactive effect, only where it is ‘unexpected and
14
indefensible by reference to the law which had been
expressed prior to the conduct in issue.’ ” Rogers v.
Tennessee, 532 U.S. 451, 462 (2001) (quoting Bouie v. City
of Columbia, 378 U.S. 347, 354 (1964)).7 Although Surrick
contends that “no one could reasonably have anticipated”
the legal standards applied to his case by the Pennsylvania
Supreme Court, even a cursory review of the state of the
law at the time of the conduct in question reveals
otherwise. Indeed, while it is true that the Pennsylvania
Supreme Court had not formally addressed the issue prior
to its decision in Anonymous Attorney A, it was nevertheless
well-settled at the time of Surrick’s conduct that liability
under the standards of DR 1-102(A)(4), the predecessor to
RPC 8.4(c), extended to reckless misstatements. See ABA
Comm. on Ethics and Professional Responsibility, Formal
Op. 346 (Revised) (1982); see also People v. Rader, 822 P.2d
950, 953 (Colo. 1992); Committee on Legal Ethics of the
W.V. State Bar v. Farber, 408 S.E.2d 274, 284-85 (W. Va.
1991); Dowling v. Alabama State Bar, 539 So.2d 149, 152
(Ala. 1989); In re Silverman, 549 A.2d 1225, 1238 (N.J.
1988); In re Zang, 741 P.2d 267, 280 (Ariz. 1987);
Committee on Professional Ethics and Conduct of the Iowa
State Bar Ass’n v. Hurd, 360 N.W.2d 96, 104 (Iowa 1985).
Further, it was well-established in Pennsylvania at that
time that the term “misrepresentation” — one of the types
of misconduct prohibited by RPC 8.4(c) — included
statements made with reckless disregard for the truth. See,
e.g., Berda v. CBS Inc., 881 F.2d 20, 27 (3d Cir. 1989)
(noting that reckless statements are sufficient to maintain
a claim for misrepresentation under Pennsylvania law);
Highmont Music Corp. v. J.M. Hoffmann Co., 155 A.2d 363,
366 (Pa. 1959) (holding that “[a] material misrepresentation
may be found whether [Defendant] actually knew the truth
7. The Supreme Court’s ruling in Rogers, by its terms, applies only to
criminal proceedings. However, we see no basis for refusing to apply the
same rationale here. As we noted, supra, the full panoply of rights
provided in criminal proceedings are not required in attorney disciplinary
proceedings. Thus, it necessarily follows that attorneys involved in
disciplinary proceedings are not entitled to any greater protection from
the retroactive application of judicial rulings than that afforded to
criminal defendants.
15
or not, especially where, as here, it was bound to ascertain
the truth before making the representation.”).
We therefore reject Surrick’s contention that prior to
Anonymous Attorney A, nothing in the history of RPC 8.4(c)
had stated or even foreshadowed that reckless conduct
could violate it. Indeed, in view of the foregoing, the
Pennsylvania Supreme Court’s decision in Anonymous
Attorney A was neither “unexpected” nor “indefensible by
reference to the law which had been expressed prior to the
conduct in issue.” Rogers, 532 U.S. at 462. This is perhaps
best illustrated by the fact that the Pennsylvania Supreme
Court remanded Attorney A’s case for application of the
purportedly new standard despite the fact that, as here, the
conduct at issue plainly occurred prior to its ruling in that
case. See Anonymous Attorney A, 714 A.2d at 407. Thus,
we hold that the District Court did not err in concluding
that the application of the ruling in Anonymous Attorney A
to Surrick’s case was consistent with the requirements of
due process.
Similarly, we conclude that the District Court did not err
in rejecting Surrick’s due process argument regarding the
application to his case of the Pennsylvania Supreme Court’s
decision in Price. Surrick contends that the decision in Price
established a new burden of proof that is unconstitutional
both in design — because it purportedly violates the
presumption of innocence to which he is entitled — and as
retroactively applied to his case. However, the Price court
was careful to note that the burden of proving misconduct
by a preponderance of the evidence rests, as it always has,
with the Office of Disciplinary Counsel. See Price, 732 A.2d
at 603. The ruling in Price simply made clear the fact that,
once a prima facie case of false allegations in a court
pleading has been established, the burden shifts to the
respondent to demonstrate “that the allegations are true or
that he had an objective reasonable belief that the
allegations were true, based upon a reasonably diligent
inquiry.” Id. at 604.
This holding in Price was in no way “unexpected” or
“indefensible by reference to the law which had been
expressed prior to the conduct in issue,” Rogers, 532 U.S.
at 462, as it was already “well-established” prior to the
16
decision in Price “that every court pleading containing an
averment of fact not of record is required to state that the
assertion is true based upon the pleader’s personal
knowledge, information or belief,” and that such averments
must “be supported by oath or affirmation or made subject”
to certain penalties. Price, 732 A.2d at 603. Thus, at the
time Surrick made the allegations contained in the recusal
motion, Pennsylvania law already required attorneys to
“bear[ ] the burden of establishing a factual basis” for
allegations contained in pleadings submitted to the courts
of the Commonwealth. Id.
Indeed, although the justices differed as to the
appropriate punishment, the Pennsylvania Supreme Court
was unanimous in its application of the purportedly new
ruling to Price himself despite the fact that, as in this case,
the record in Price had been developed prior to the
Pennsylvania Supreme Court’s express articulation of this
burden of production. See id. at 604-05.8
Surrick’s next argument — that the District Court
abused its discretion in concluding that a second
evidentiary hearing would be futile — is closely related.
Specifically, he asserts that, in view of the purported
changes in the requisite mental state and burden of proof
that resulted from the Pennsylvania Supreme Court’s
decisions in Anonymous Attorney A and Price, he should
have been provided a second evidentiary hearing at which
he could have addressed the issues raised by these
decisions. However, despite having advance notice that the
ruling in Price might be applied to his case, Surrick never
requested either an evidentiary hearing or the reopening of
the record during the state proceedings. Thus, any due
process violation that might have resulted from the failure
to hold a second hearing was waived. See United States v.
Olano, 507 U.S. 725, 731 (1993) (holding that “ ‘[n]o
8. To the extent that Surrick asserts that the decision in Price, which
involved RPC 3.3(a)(1) and RPC 8.2(b), may not be applied to his
violation of RPC 8.4(c), we reject this argument. Not even the first
District Court panel found any basis for this claim. See Surrick II, 2001
WL 120078 at *14 (holding that “[w]e see no ground for questioning the
[Pennsylvania Supreme Court’s] judgment that the Price procedural
regime was properly transferable to RPC 8.4(c) proceedings.”).
17
procedural principle is more familiar . . . than that a
constitutional right,’ or a right of any other sort, ‘may be
forfeited in criminal as well as civil cases by the failure to
make timely assertion of the right before a tribunal having
jurisdiction to determine it.’ ”) (quoting Yakus v. United
States, 321 U.S. 414, 444 (1944)).
Further, even if this claim had not been waived, Surrick
has failed to identify any evidence not presented in the first
hearing that would have led to a conclusion that he had an
objectively reasonable basis for the allegations contained in
his recusal motion. Indeed, despite his claim that he bore
no burden of production prior to the ruling in Price, Surrick
voluntarily offered extensive testimony during the three-day
proceedings regarding his purported bases for the
statements contained in the recusal motion. In light of this,
it is difficult to imagine that he could or would have come
forward with any additional information if provided the
opportunity to do so in a second hearing. In addition, both
the Disciplinary Board and the District Court found, based
on the testimony and evidence already in the record, that
Surrick’s statements were unsupported. See Surrick III,
2001 WL 1823945 at *1 (“Mr. Surrick admitted at state
disciplinary proceedings that he had no objective factual
basis for the accusations he made in his sworn affidavit to
the state court about purportedly corrupt conduct by a
state judge.”); Report and Recommendations of the
Disciplinary Bd. of the Supreme Court of Pennsylvania at
29-30 (noting Surrick’s admission that the charges leveled
against Judge Olszewski were based on conjecture and
theory). In view of the foregoing, we simply cannot conclude
that the District Court abused its discretion in electing to
impose reciprocal discipline despite the absence of a second
state court hearing, particularly when such a hearing was
never requested by Surrick in the first instance.
Moreover, we note with respect to each of Surrick’s first
two arguments that no member of the District Court —
including the original three member panel which
recommended that no reciprocal discipline be imposed —
concluded that the state disciplinary proceedings failed to
satisfy minimal due process requirements. See Surrick III,
2001 WL 1823945 at *1 (“The court determined that there
18
was no clear deprivation of due process of law.
Significantly, while critical of the approach of the
Pennsylvania Supreme Court, even Judge Pollak, the
author of the panel report of February 7, 2001,
acknowledged that the report had not concluded that Mr.
Surrick was deprived of his federal constitutional right to
due process.”).
We further note that Surrick’s reliance upon Ruffalo is
misplaced. In Ruffalo, an additional charge of misconduct
was brought against the attorney in question following the
completion of his testimony in the state disciplinary
proceedings. See 390 U.S. at 546-47. That new charge
served as the sole basis for the Sixth Circuit Court of
Appeals’ decision to impose reciprocal discipline. Id. The
Supreme Court reversed the judgment of the court of
appeals, concluding that the addition of a new charge at
that stage of the state court proceedings violated Ruffalo’s
right of due process, thereby making the imposition of
reciprocal discipline inappropriate. Id. at 550-551.
Contrary to Surrick’s contention, we conclude that the
Pennsylvania Supreme Court’s application of its rulings in
Anonymous Attorney A and Price did not amount to a new
charge, and therefore is not functionally equivalent to the
actions held violative of due process in Ruffalo. Cf.
Committee on Prof ’l Ethics and Grievances of the Virgin
Islands Bar Ass’n v. Johnson, 447 F.2d 169, 172-74 (3d
Cir. 1971) (applying Ruffalo to situation in which
disciplinary charges were amended based on the testimony
of the attorney in question); see also In re Slattery, 767
A.2d 203, 210-11 (D.C. 2001) (noting that “we understood
Ruffalo as holding that due process was violated because
the bar association failed to give Ruffalo prior notice that
his conduct would amount to, in the words of the Supreme
Court, a ‘disbarment offense,’ with the consequence that
Ruffalo was trapped into admitting that he had committed
a disciplinary violation . . . . Ruffalo rests on the premise
that the amendment of charges created an impermissible
trap since, at the time of the proceedings, the attorney
could not have known that the defense he asserted would
subject him to disbarment”) (citations and internal
quotations omitted).
19
Thus, we hold that the District Court did not err in
concluding that the state disciplinary proceedings complied
with minimal due process requirements. As a consequence,
it did not abuse its discretion in imposing reciprocal
discipline as required by its local rules in the absence of a
due process violation. See RAC II(D).
We need not address the merits of Surrick’s third and
final argument — that the state court’s ruling violates his
First Amendment rights and therefore constitutes a grave
injustice pursuant to RAC II(D) — as he failed to adequately
raise it before the District Court. See Brenner v. Local 514,
United Bhd. of Carpenters and Joiners of Am., 927 F.2d
1283, 1298 (3d Cir. 1991). Further, to the extent that
Surrick’s reply brief may be read to challenge the District
Court’s finding of waiver with respect to the First
Amendment argument that was asserted below, we
conclude that his failure to identify or argue this issue in
his opening brief constitutes waiver of this argument on
appeal. See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.
1993). Moreover, even if Surrick’s objection to the District
Court’s finding of waiver had been properly presented in his
opening brief, we have reviewed the record and find no
abuse of discretion.
Finally, we note that the question whether the imposition
of either state or reciprocal federal discipline was
appropriate under the circumstances of this case is clearly
one over which reasonable jurists may disagree. However,
even conceding that we would view some of Surrick’s
arguments as presenting close issues if called upon to
examine them in the first instance, we have no difficulty in
concluding that the District Court en banc did not abuse its
discretion in imposing reciprocal discipline.
IV. Conclusion
For the reasons stated above we will affirm the judgment
of the District Court.
20
COWEN, Circuit Judge, dissenting.
I agree with the majority’s framing of the question
presented on this appeal: whether the District Court
abused its discretion by relying on the decision of the
Pennsylvania Supreme Court to impose reciprocal
discipline. I further agree that we have jurisdiction to
consider this appeal, and concur with the majority’s review
of Surrick’s belated First Amendment challenge. However, I
part company with the majority’s analysis of the Due
Process concerns raised by the District Court’s
countenance of the mental standard and burden of proof
ultimately applied to Surrick’s Commonwealth disciplinary
charge. The Pennsylvania Supreme Court’s expansion of the
Pennsylvania Rules of Professional Conduct to prohibit
reckless misstatements was unexpected under the clearly
expressed law of the Commonwealth. Likewise, the
Pennsylvania Supreme Court’s changes to the proof
sufficient to establish attorney misrepresentations
materially altered the evidentiary burdens used at Surrick’s
hearing. The retroactive application of both newly crafted
standards impinged the guarantees of Due Process
applicable to Surrick’s hearing, and presented a grave
reason to reject the Commonwealth’s decision. Given these
flaws, the use of the Commonwealth’s discipline as the
basis for reciprocal federal discipline was unwarranted, and
an abuse of the District Court’s discretion. Accordingly, I
respectfully dissent from the majority’s reasoning and its
decision.
I.
Like the majority, I begin by noting this Court’s extremely
limited role in reviewing the disciplinary decisions of the
District Court. In re Abrams, 521 F.2d 1094, 1101 (3d Cir.
1975). The District Court, like all federal courts, enjoys a
broad power to regulate and discipline admitted attorneys.
In re Snyder, 472 U.S. 634, 643 (1985). However, the
District Court’s “absolute and unfettered” disciplinary
authority “may be circumscribed to the extent the district
court, in imposing its disciplinary sanctions, relied upon a
state’s legal or factual determinations.” In re Abrams, 521
F.2d at 1101. This limitation recognizes that “[w]hile a
21
lawyer is admitted into a federal court by way of a state
court, he is not automatically sent out of the federal court
by the same route.” Theard v. United States, 354 U.S. 278,
281 (1957). Thus, while a state disciplinary decision “is
entitled to respect, it is not conclusively binding on the
federal courts.” In re Ruffalo, 390 U.S. 544, 547 (1968);
Theard, 354 U.S. at 282; In re Abrams, 521 F.2d at 1099-
1100.
The Supreme Court has outlined three areas of
constitutional concern where a federal court should not
give controlling weight to a state disciplinary decision: 1)
where the state procedure, “from want of notice or
opportunity to be heard, was wanting in due process”; 2)
where there was such an infirmity of proof “as to give rise
to a clear conviction” that the state’s judgment cannot be
accepted as final; or 3) where some other grave reason
exists to reject the decision of the state court. Selling v.
Radford, 243 U.S. 46, 51 (1917); see also R. of Attorney
Conduct II.D (codified at R. of Civ. P.for the E.D. Pa. 83.6).
This Court must examine the Commonwealth disciplinary
proceedings to determine whether Surrick has
demonstrated, by clear and convincing evidence, that one of
these factors warranted a departure from the presumptive
imposition of federal discipline. In re Kramer, 282 F.3d 721,
724-25 (9th Cir. 2002); In re Jacobs, 44 F.3d 84, 88 (2d
Cir. 1994); In re Rosenthal, 854 F.2d 1187, 1188 (9th Cir.
1988).
II.
Like the majority, I also apply Rogers v. Tennessee, 532
U.S. 451 (2001) in evaluating whether the Pennsylvania
Supreme Court’s retroactive decisions satisfied federal Due
Process. Attorney disciplinary hearings “are adversary
proceedings of a quasi-criminal nature.” In re Ruffalo, 390
U.S. at 551; In re Abrams, 521 F.2d at 1099. Although
attorneys are not entitled to the full panoply of protections
afforded to criminal defendants, they are “entitled to
procedural due process, which includes fair notice of the
charge.” In re Ruffalo, 390 U.S. at 550; Comm. on Prof ’l
Ethics and Grievances of V.I. Bar Ass’n v. Johnson, 447
F.2d 169, 173 (3d Cir. 1971). These procedural safeguards
22
ensure that the nature of the state’s allegation is known
before the commencement of a disciplinary hearing so that
the accused attorney might meet the charges of
misconduct. In re Ruffalo, 390 U.S. at 551.
These same concerns are reflected in the Supreme
Court’s decision in Rogers v. Tennessee, which limited the
retroactive application of judicial alterations of common law
criminal doctrines. Rogers holds that while courts have
substantial interpretive leeway, the Due Process clause
limits “unjustified and unpredictable breaks with prior law”
to protect against “vindictive or arbitrary judicial
lawmaking.” Id. 532 U.S. at 462. These concerns are
heightened in the highly charged context of attorney
disciplinary hearings, where “sensitive personal,
institutional and societal interests” converge into a “jural
environment that is fraught with tension and devoid of
decisional and precedential guideposts.” In re Abrams, 521
F.2d at 1100. Therefore, judicial alteration of a state rule of
professional conduct may not be applied retroactively
“where it is ‘unexpected and indefensible by reference to the
law which had been expressed prior to the conduct at
issue.’ ” Rogers, 532 U.S. at 462 (quoting Bouie v. City of
Columbia, 378 U.S. 347, 354 (1964)).
III.
Against this background, I consider the retroactive
application of the recklessness standard to Surrick’s
misstatements. Pennsylvania Rule of Professional Conduct
8.4(c) states that “[i]t is professional misconduct for a
lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation.” The plain language of RPC
8.4(c) does not specify a relevant state of mind, and the
comments accompanying the rule are similarly silent.1 At
the time of Surrick’s action in 1992, no decision of the
Pennsylvania Supreme Court had interpreted the mental
state required for sanctions under the rule. Office of
1. Disciplinary Rule 1-102(A)(4), the precursor to RPC 8.4(c), also lacked
a mental standard. Office of Disciplinary Counsel v. Anonymous Attorney
A, 714 A.2d 402, 404-05 & n.7 (Pa. 1998).
23
Disciplinary Counsel v. Anonymous Attorney A, 714 A.2d
402, 405-06 (Pa. 1998).
Citing the text of RPC 8.4(c) and the absence of any
interpretive authorities, the Special Hearing Committee of
the Disciplinary Board in this case concluded that only
knowingly false statements violate the rule. App. at 160.
The Special Committee explained that Pennsylvania “did
not adopt the language of the Model Rules which contained
a more objective ‘knew or should have known’ standard.”
App. at 160. Given this distinction, the use of an objective
recklessness standard would “disregard[ ] the plain
language of the Rule as promulgated in this
Commonwealth.” App. at 162. The Special Committee
concluded that because there was “no evidence whatsoever
presented that Mr. Surrick knew that the accusations made
were false,” no violation of RPC 8.4(c) was established.2
App. at 162-63.
The Disciplinary Board adopted these conclusions. The
Board explained that “negligent or careless conduct was not
sufficient to constitute a violation of Rule 8.4(c).” App. at
183. Significantly, the Board based this holding on its then
recent decision in Office of Disciplinary Counsel v. Rebert,
No. 28 D.B. 95 (April 23, 1997) which also found no
misconduct for merely mistaken, rather than intentional,
misrepresentations.3 The Disciplinary Board’s reliance on
Rebert is significant because that decision, recaptioned as
Anonymous Attorney A, was reversed by the Pennsylvania
Supreme Court while Surrick’s case was on appeal. As I
shall discuss, the Disciplinary Board’s reliance on Rebert to
exonerate Surrick reveals that the Commonwealth’s
designated disciplinary authority did not anticipate the
2. Despite this ruling, the Special Committee went on to opine that the
evidence failed to show Surrick was unreasonable in his allegations.
App. at 163. Although the Special Committee’s statement that “we
cannot conclude that he . . . did not have a reasonable basis [ ] to make
the assertions that he did” was unnecessary given its interpretation of
RPC 8.4(c), its analysis of the evidence at the hearing is nonetheless
notable.
3. The unpublished decision of the Disciplinary Board in Rebert is
available at http://www.courts.state.pa.us/OpPosting/disciplinaryboard/
dboardopinions/28DB95.OP.pdf.
24
standard that would be announced in Anonymous Attorney
A. I thus turn to the facts, reasoning, and holding of that
decision.
The Pennsylvania Supreme Court began its opinion in
Anonymous Attorney A by noting that no prior decision of
either the Supreme Court or the Disciplinary Board had
examined the requirement of intent under RPC 8.4(c). The
Court explained that while an earlier case did address
attorney misrepresentations under DR 1-102(A)(4) (the
predecessor rule to RPC 8.4(c)), the case did not “address
the mental culpability standard for an attorney’s alleged
misrepresentations which Petitioner must meet in order to
establish a violation . . . .” Anonymous Attorney A, 714 A.2d
at 405 (discussing Office of Disciplinary Counsel v. Geisler,
614 A.2d 1134 (Pa. 1992)). The Court concluded that
because “Geisler focused on the discipline to be imposed
. . . rather than . . . mental culpability, that opinion is of
limited value in resolving the question presently before us.”
Id.The Court then turned to In re Anonymous, 126 D.B. 92,
26 Pa. D. & C. 4th 427 (1995), “[t]he sole Disciplinary
Board decision addressing a mental culpability standard”
under RPC 8.4(c) or DR 1-102(A)(4). Id. In re Anonymous
involved a disciplinary charge arising out of an attorney’s
failure to abide by the terms of an informal admonition. In
exchange for an informal sanction, the attorney twice
agreed to return a client’s file. Despite these
representations to the Disciplinary Board, the attorney
failed to return the materials, leading to an additional
disciplinary charge for his false statement. The Disciplinary
Board held that while RPC 8.4(c) “does not attach an
independent state of mind requirement,” the common
meaning of “misrepresentation” includes “an assertion not
in accordance with the facts.” In re Anonymous, 26 Pa. D.
& C. 4th at 436 (quoting Black’s Law Dictionary 903 (5th
ed. 1979)). Based on this definition, the Disciplinary Board
concluded that the attorney’s negligent misrepresentation
to the Board was “an assertion not in accordance with the
facts,” and a violation of RPC 8.4(c). Id. The Pennsylvania
Supreme Court viewed “the egregiousness of the facts in In
re Anonymous” as the basis for the discipline. Anonymous
25
Attorney A, 714 A.2d at 405. Given the severity of the facts,
the Court concluded “that this decision is of no
precedential value regarding the issue sub judice.” Id. at
405-06.
The Pennsylvania Supreme Court thus found no
authorities explaining the mental state required under RPC
8.4(c), and “given the absence of precedent in Pennsylvania
on the issue,” proceeded to canvass the case law from other
jurisdictions. Id. at 406. After reviewing the decisions of
four other states, the Supreme Court adopted the
interpretation of Colorado’s analogous disciplinary rule and
held that “no actual knowledge or intent to deceive” is
necessary to prove a violation of RPC 8.4(c). Id. at 407.
Instead, misconduct is established by recklessness, “the
deliberate closing of one’s eyes to facts that one had a duty
to see or state as fact things of which one was ignorant.” Id.
The Court concluded that this holding “clarifies” the finding
in Geisler. Id.
Anonymous Attorney A reveals three facts regarding the
state of Pennsylvania law prior to 1998: 1) the text of RPC
8.4(c) does not contain a state of mind requirement; 2) the
prior decision of the Pennsylvania Supreme Court in Geisler
—the only Supreme Court decision to even consider
attorney misrepresentations under DR 1-102(A)(4) or RPC
8.4(c)—did not impose a state of mind requirement; and 3)
the prior decision of the Disciplinary Board in In re
Anonymous had “no precedential value” regarding the state
of mind requirement. These facts reveal a complete lack of
Pennsylvania authority on the meaning of RPC 8.4(c), and
explain the Supreme Court’s examination of cases outside
the Commonwealth.
The Pennsylvania Supreme Court’s opinion in Office of
Disciplinary Counsel v. Surrick, 749 A.2d 441 (Pa. 2000)
essentially accepts these conclusions, and acknowledges
that no case addressed the mental standard of RPC 8.4(c)
before Anonymous Attorney A. Id. at 444. Nonetheless, the
Pennsylvania Supreme Court viewed the glass as half-
empty, reasoning that because “[n]o precedent had declared
only intentional conduct would violate” the rule, attorneys
must have assumed that some lesser degree of conduct
might be actionable. Id. at 445. To support this conclusion
26
the Supreme Court pointed to the outcome in Geisler, the
case that it previously characterized as offering “limited
value” to this issue, and requiring the “guidance” offered by
Colorado law. Id. at 444. Thus, with no more than a
citation to Geisler and the unsupported statement that the
recklessness standard was not unforeseeable, the
Pennsylvania Supreme Court determined that Anonymous
Attorney A governed Surrick’s conduct some eight years
before the decision. Given this thin reasoning, the original
District Court panel to review Surrick’s case
understandably found it “hard to escape the conclusion”
that Anonymous Attorney A decided an issue of first
impression. App. at 82.
The majority labors to bolster the Supreme Court’s scant
analysis in an attempt to argue that given “the state of the
law” in 1992, Surrick should reasonably have anticipated
the decision in Anonymous Attorney A. First, the majority
finds it “well-settled” that reckless conduct satisfied DR 1-
102(A)(4), the predecessor to RPC 8.4(c). This assertion,
however, lacks any citation to Pennsylvania law. Nor could
any citation be included, given “the absence of precedent in
Pennsylvania on the issue.” Anonymous Attorney A, 714
A.2d at 406. Instead, the majority cites to an opinion of the
American Bar Association interpreting Model DR 1-
102(A)(4). But as stated by the Special Committee,
Pennsylvania did not adopt the language of the ABA Model
Rule in promulgating RPC 8.4(c), and looking to the ABA’s
interpretations of a objective standard would “disregard[ ]
the plain language of the Rule as promulgated in this
Commonwealth.” App. at 162.
The majority then offers six state court opinions
interpreting the disciplinary rules of their individual
jurisdictions to extend to reckless misstatements. That fact
seems to prove only that forty-four states, or more than
three-quarters of the nation, had not extended their rules
to include reckless conduct. Thus, while this survey might
indeed prove some “general state of the law,” it does not
support the majority’s conclusion that recklessness was a
well-settled standard. More importantly, the majority does
not accompany these citations with any principle of law
that requires attorneys to conform their behavior not only
27
to the rules of their jurisdiction, but to those promulgated
in all others.
Next, the majority offers several decisions holding that
misrepresentations are actionable as torts in Pennsylvania
if made with a reckless disregard for the truth. See, e.g.,
Berda v. CBS, Inc., 881 F.2d 20, 27 (3d Cir. 1989)
(discussing tort claims for fraud and negligent
misrepresentation). But as the majority agrees, this Court
has already held that a disciplinary proceeding “has
consequences which remove it from the ordinary run of civil
case.” In re Abrams, 521 F.2d at 1099. Using a common
law doctrine to expand the meaning of a criminal statute is
generally prohibited in Pennsylvania. 1 Pa. Cons. Stat. Ann.
§ 1928(b)(1) (West 2003) (stating that penal provisions shall
be strictly construed). Strict construction is also required
for the interpretation of retroactive laws. Id. § 1928(b)(2).
The civil laws cited by the majority to justify the
Pennsylvania Supreme Court’s retroactive application of a
new disciplinary ruling have little, if any, application to
such a quasi-criminal proceeding.
Finally, the majority views the Pennsylvania Supreme
Court’s decision to remand the case in Anonymous Attorney
A as evidence that the recklessness standard was not new
law. The correctness of the Supreme Court’s decision to
remand that case, in light of the Disciplinary Board’s
understanding that only intentional misrepresentations
satisfied RPC 8.4(c) and the requirements of 1 Pa. Cons.
Stat. Ann. § 1928(b)(2), is not before this Court. As
succinctly stated by the District Court panel, the
Pennsylvania Supreme Court’s decision in Anonymous
Attorney A, as in Surrick, “settles the issue as a matter of
Pennsylvania law.” App. at 82.
But it does not settle for this court the federal due
process question whether it was fundamentally unfair
for the Commonwealth of Pennsylvania, through its
highest court, in 2000, to suspend Mr. Surrick from
the practice of law for five years because of actions
taken at a time—nearly eight years before the court’s
decision—when there was an ‘absence of precedent in
Pennsylvania’ that his actions were sanctionable.
28
App. at 82. Our focus on this appeal is whether the
application of Anonymous Attorney A was unexpected or
indefensible by reference to prior law. The Pennsylvania
Supreme Court’s interpretation of Commonwealth law does
not, therefore, substitute for our own independent Due
Process analysis.
The majority’s reasoning does not support the conclusion
that the recklessness standard of Anonymous Attorney A
was foreseeable. More fundamentally, however, it is
unhelpful to examine the general “state of the law” in other
jurisdictions, or in other substantive areas, instead of the
law of Pennsylvania regarding attorney misrepresentations.
It is clear from Anonymous Attorney A that no prior law
explained the application of RPC 8.4(c). It is clear from the
record that the Special Hearing Committee and the full
Disciplinary Board both believed that RPC 8.4(c) did not
embrace objectively reckless misstatements. And it is clear
from the Disciplinary Board’s citation to Rebert, the very
case that would later announce the recklessness standard,
that the Board did not anticipate the Pennsylvania
Supreme Court’s decision. Given the text of RPC 8.4(c), and
the absence of any interpretive authority, it is not
surprising that even the professional experience and
institutional learning of Pennsylvania’s highest disciplinary
authority was insufficient to predict the Supreme Court’s
decision.
For these reasons, I am left with the same conclusion as
the District Court panel: Anonymous Attorney A announced
a new standard for attorney misconduct, one that was not
obvious from the text of RPC 8.4(c), foreshadowed by prior
decisions, or even suggested by the state of Pennsylvania
disciplinary law. The better reading of that decision is the
one offered by the Pennsylvania Supreme Court itself: a
new professional standard drawn from a Colorado Supreme
Court decision. The decision to alter RPC 8.4(c) is, without
question, entrusted to the Pennsylvania Supreme Court. It
is not ours to dispute that decision, or its retroactive
application to Surrick’s misstatements. It is, however, the
role of this Court to determine whether some grave reason
exists to reject the District Court’s reliance on those
judgments. The recklessness standard of Anonymous
29
Attorney A was unexpected and indefensible under the law
prior to Surrick’s conduct. Relying on the retroactive
application of that holding to impose reciprocal federal
discipline was clearly erroneous.
IV.
Similar concerns support my conclusion that the
retroactive application of the burden-shifting framework
announced in Office of Disciplinary Counsel v. Price, 732
A.2d 599 (Pa. 1999) constitutes a grave reason to depart
from the Commonwealth’s sanctions. I begin by outlining
the elements of RPC 8.4(c) and the burden of proof applied
by the Disciplinary Board at Surrick’s hearing. As explained
by the Special Hearing Committee, RPC 8.4(c) required the
Office of Disciplinary Counsel to prove that Surrick knew
his allegations were false. App. at 163 (“The focus of the
inquiry, in this case, was to Mr. Surrick’s state of mind in
making these allegations and not to the ultimate truth or
falsity of the allegations.”). The Disciplinary Board further
explained that the Office of Disciplinary Counsel must
prove Surrick’s actual subjective knowledge by clear and
satisfactory evidence. App. at 178. Anonymous Attorney A
changed the first of these requirements by adding an
objective recklessness standard. Thus, under the new
formulation, the Office of Disciplinary Counsel could prove
Surrick actually knew his statements were false, or that he
made the statements with reckless ignorance of the facts.
Office of Disciplinary Counsel v. Price then changed the
second requirement. In Price, the Pennsylvania Supreme
Court affirmed that “the burden of proving misconduct lies
with the Office of Disciplinary Counsel,” that misconduct
must be shown “by a preponderance of the evidence,” and
that proof of the misconduct must be clear and satisfactory.
Price, 732 A.2d at 603. The Supreme Court then noted that
every fact asserted in a court pleading must be based on
either the pleader’s personal knowledge, or the results of a
reasonably diligent inquiry. Id. Synthesizing these
requirements, Price held that the Office of Disciplinary
Counsel may satisfy its burden to prove the alleged
misconduct simply by demonstrating that the statements at
issue were false. Id. at 604. After this initial showing, “[t]he
30
burden then shifts to the respondent to establish that the
allegations are true or that he had an objective reasonable
belief that the allegations were true, based upon a
reasonably diligent inquiry.” Id.
The majority views this second alteration as
unexceptional given that the burden of proof remains on
the Office of Disciplinary Counsel, and that the relevant
quantum of evidence remains clear and satisfactory. This
explanation, however, does not consider that what the
Office must prove is no longer the attorney’s subjective
knowledge, or the objective unreasonableness of the
attorney’s belief. Instead, the Office need only prove the
objective falsity of the statement, after which the attorney
carries the burden to either prove the statement true, or to
prove a reasonably diligent inquiry supported the erroneous
belief. By formulating the burdens in this manner, the
Office of Disciplinary Counsel is no longer required to prove
(by any measure of evidence) that the attorney actually
knew the statements were false, as was the practice before
Anonymous Attorney A. And the Office need not even prove
that the attorney failed to conduct a reasonable inquiry, as
seemed to be the requirement after Anonymous Attorney A.
Under Price, therefore, the Office of Disciplinary Counsel is
relieved of proving the state of mind requirement added to
RPC 8.4(c), and permitted to rest its case solely on the
falsity of the statements at issue.
It bears repeating that as with the new recklessness
standard, the Pennsylvania Supreme Court’s decision in
Price is relevant only to this Court’s consideration of
whether to afford Surrick’s Commonwealth discipline
presumptive force. That question turns, as before, on
whether the change in Price was unexpected or
indefensible. The majority contends that it was not, quoting
the Pennsylvania Supreme Court’s view that “the pleader in
a court proceeding bears the burden of establishing a
factual basis upon which his allegations are based.” Price,
732 A.2d at 603. However, Price itself does not cite any
authority for this claim, making its presumptive force
suspect. Moreover, the relevant issue is not whether
Surrick had a duty to verify the contents of his pleading.
That duty is unquestionably established by Pa. R. Civ. P.
31
10234 and 1024, and Pennsylvania courts are authorized to
impose appropriate sanctions for bad faith violations.
Surrick’s misstatements might have been the basis for
penalties before the Superior Court.
Price goes a step further, allowing an attorney’s duty of
verification under the civil rules to automatically satisfy the
Office of Disciplinary Counsel’s case under RPC 8.4(c), if
the attorney’s statements are false. Whether that is a
desirable rule is of no moment. That it was an unexpected
departure from prior practice is acknowledged by the
Pennsylvania Supreme Court’s explanation that Price “set
forth an objective standard” based on a newly crafted
shifting burden of production. Surrick, 749 A.2d at 445.5
The process required during disciplinary proceedings
includes, at a minimum, fair notice of the misconduct
alleged. In re Ruffalo, 390 U.S. at 550; Johnson, 447 F.2d
at 173. Knowledge of the violation charged, and hence the
accompanying elements and burdens, is critical to
mounting a proper defense. More importantly, adequate
notice protects attorneys from the specter of vindictive and
arbitrary discipline. Rogers, 532 U.S. at 462. Like the
District Court panel, I do not find it necessary to determine
whether the retroactive application of Price to Surrick’s
conduct violated federal Due Process. Instead, I would hold
that the Due Process concerns implicit in the retroactive
application of a new burden of proof provide a grave reason
to reject the District Court’s reliance on the Pennsylvania
Supreme Court’s decision. Price was unexpected and
indefensible under prior law, and the retroactive application
of its framework “should not be accepted as adequate for
the purposes of disbarment from a federal court.” In re
4. Rule 1023 was rescinded effective July 1, 2002. New Rules 1023.1-
1023.4 continue the requirements of the old rule, and provide additional
instruction on remedies for violations.
5. The majority also views the Pennsylvania Supreme Court’s decision to
apply this new framework to the conduct at issue in Price as evidence
that the burden allocation was not new law. I find this reasoning
irrelevant for the same reasons I disagree with majority’s reliance on the
Supreme Court’s decision to remand Anonymous Attorney A.
32
Ruffalo, 390 U.S. at 552 (Harlan, J., concurring). So viewed,
the District Court’s decision was clearly erroneous.6
V.
I note finally that my disagreement with the majority’s
analysis implies no view on the substance of Surrick’s
allegations. With that observation, and for the foregoing
reasons, I must dissent from the majority’s decision.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
6. Because I would hold that the retroactive application of Price is a
sufficiently grave reason to reject the Commonwealth’s decision, I need
not address Surrick’s additional Due Process arguments, or the
majority’s analysis of those issues.