2003 Decisions

Opinions of the United

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Precedential or Non-Precedential: Precedential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. 
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

2
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. 

3
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.” 

4
(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”. 

5
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)).

6
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

7
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. 

8
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

9
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. 

10
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

11
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

12
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 ‘quasicriminal,’ 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

13
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. 

14
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

15
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.”). 

16
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

17
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). 

18
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. 

19
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

20
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

21
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). 

22
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. 

23
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

24
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 halfempty, 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

25
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

26
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.

27
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

28
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

29
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.

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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. 

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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. 

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