1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 09-2361

 

In Re: FRANK J. MARCONE,

 Appellant

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No. 2-08-mc-00164

District Judge: The Honorable Harvey Bartle, III

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

March 11, 2010

Before: AMBRO, SMITH, and ALDISERT, Circuit Judges

(Filed: September 23, 2010 )

 

 OPINION

 

SMITH, Circuit Judge.

By order dated April 30, 2009, the United States District Court for the Eastern

District of Pennsylvania suspended Frank J. Marcone from the practice of law in its court

for a period of two years. Marcone filed an appeal of that order on May 6, 2009, raising
 Marcone also identifies as a third issue whether the District Court had subject matter 1

jurisdiction. This argument lacks merit as a district court “has the inherent authority . . . to

discipline attorneys who appear before it.” In re Surrick, 338 F.3d 224, 229 (3d Cir. 2003).

Appellate jurisdiction exists under 28 U.S.C. § 1291. Id. Because Marcone’s first two

arguments raise issues of law, our review is plenary. Id. 

2

two arguments for reversal. 

1

Prior to Marcone’s suspension by the District Court, the Pennsylvania Supreme

Court had suspended him from the practice of law. During this period of suspension, in

early 2006, Marcone provided legal services to a real estate broker regarding a real estate

transaction that fell apart. These services included the preparation of a release regarding

the escrow, and a conference with and letter to the buyer’s counsel. These efforts to

resolve the dispute regarding the return of the escrow were not productive, and the buyer

of the real estate initiated a civil action in the latter part of 2006 against the broker in the

United States District Court for the District of Columbia. Subsequently, in September of

2007, the civil action was transferred to the Eastern District of Pennsylvania, which was

the situs of the real estate. At this point, in light of the Pennsylvania Supreme Court’s

suspension of Marcone’s license to practice law, the Magistrate Judge presiding over the

case questioned the propriety of Marcone’s representation of the broker prior to the

initiation of litigation and before the action was transferred to the Eastern District of

Pennsylvania. Marcone claimed that he was entitled to render legal services to the broker

because he had a “federal license” by virtue of his admission to practice law in the

Eastern District of Pennsylvania. The District Court did not dispute that Marcone had

been admitted to practice in the Eastern District of Pennsylvania and was entitled to
3

provide legal services to clients involved in litigation in that court. The Court concluded,

however, that Marcone’s license to practice law before the Eastern District of

Pennsylvania did not authorize him to render legal services to clients who are neither

parties to an action in the Eastern District nor intending to prosecute an action in that

court. As a result, the Court decided that Marcone had engaged in the unauthorized

practice of law, determined that discipline was warranted, and suspended Marcone from

the practice of law before it for a two year period.

Relying on Sperry v. State of Florida, 373 U.S. 379 (1963), Marcone contends that

the District Court erred because his “federal license” to practice in the Eastern District of

Pennsylvania provided him with a “safe pass” to practice law even though his

Pennsylvania license had been suspended. In Sperry, the Supreme Court determined that

the Supremacy Clause precluded the State of Florida from enjoining a nonlawyer, who

was registered to practice before the United States Patent Office, from engaging in certain

activities associated with patent law. 373 U.S. at 385. The Supreme Court vacated

Florida’s injunction insofar as it “prohibit[ed] [the registered practitioner] from

performing tasks which are incident to the preparation and prosecution of patent

applications before the Patent Office.” Id. at 404. 

In Surrick v. Killion, 449 F.3d 520 (3d Cir. 2006), we observed that Sperry “stands

for the general proposition that where federal law authorizes an agent to practice before a

federal tribunal, the federal law preempts a state’s licensing requirements to the extent

that those requirements hinder or obstruct the goals of federal law.” Id. at 530. Here, the
4

federal law authorized Marcone to practice law only before the District Court for the

Eastern District of Pennsylvania. Yet Marcone relied on his admission to the Eastern

District bar to provide legal services in a matter that had no connection with litigation

either pending in the Eastern District or intended to be prosecuted before that Court. 

Accordingly, we conclude that the District Court did not err in applying Sperry and in

determining that Marcone engaged in the unauthorized practice of law when he rendered

the legal services to the real estate broker. 

Marcone also contends that the District Court proceedings violated his right to due

process in several respects. First, he asserts that his right to due process was violated

because the District Court panel that recommended his suspension merged its

investigative and judicial functions. As support for his contention, Marcone relies on

Lyness v. State Board of Medicine, 605 A.2d 1204, 1210 (Pa. 1992). Lyness is not helpful

as it addresses due process under the Pennsylvania Constitution. Under the federal

Constitution, however, the “combination of investigative and adjudicative functions does

not, without more, constitute a due process violation[.]” Withrow v. Larkin, 421 U.S. 35,

58 (1975). Here, Marcone has failed to adduce any evidence of a due process violation. 

Id. Second, Marcone complains that he was not afforded an opportunity to be heard. The

record before us confirms, however, that there was a hearing in this matter on December

28, 2008. Third, Marcone submits that he was deprived of a fair and unbiased hearing

because Judge Padova did not recuse himself. Yet Marcone’s request for Judge Padova’s

recusal was withdrawn by counsel at the December 28th hearing. Moreover, we discern
5

no basis for recusal on this record. In light of the foregoing, we conclude that Marcone’s

due process rights were not violated.

We will affirm the District Court’s order dated April 30, 2009.