2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-2-2006

Surrick v. Killion

Precedential or Non-Precedential: Precedential

Docket No. 05-2615

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Surrick v. Killion" (2006). 2006 Decisions. Paper 806.

http://digitalcommons.law.villanova.edu/thirdcircuit_2006/806
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 05-2615

 

ROBERT B. SURRICK

v.

PAUL J. KILLION, CHIEF COUNSEL, PENNSYLVANIA

OFFICE OF DISCIPLINARY COUNSEL, IN HIS

OFFICIAL CAPACITY; RALPH J. CAPPY, CHIEF

JUSTICE OF THE SUPREME COURT OF

PENNSYLVANIA, IN HIS OFFICIAL CAPACITY;

RONALD D. CASTILLE; RUSSELL M. NIGRO; SANDRA

SCHULTZ NEWMAN; THOMAS G. SAYLOR; J.

MICHAEL EAKIN; MAX BAER, JUSTICES OF THE

SUPREME COURT OF PENNSYLVANIA, ALL IN THEIR

OFFICIAL CAPACITY

Paul J. Killion, 

Appellant

_________

Appeal from Judgment of the United States District Court 

for the Eastern District of Pennsylvania
2

 (D.C. Civ. No. 04-CV-05668)

District Judge: Honorable James T. Giles

Submitted under Third Circuit LAR 34.1(a)

May 9, 2006

Before: BARRY, SMITH and ALDISERT, Circuit Judges.

(Filed June 2, 2006 )

____________

OPINION OF THE COURT 

 

A. Taylor Williams, Esq.

Administrative Office of the Pennsylvania Courts

1515 Market Street, Suite 1414

Philadelphia, PA 19102

Counsel for Appellant Paul Killion, et al.

David Rudovsky, Esq.

Jonathan H. Feinberg, Esq.

Kairys, Rudovsky, Epstein & Messing

924 Cherry Street, Suite 500

Philadelphia, Pennsylvania 19107

Seth F. Kreimer, Esq.

3400 Chestnut Street

Philadelphia, PA 19104
3

Counsel for Appellee Robert Surrick

ALDISERT, Circuit Judge:

Paul J. Killion, Chief Counsel of the Commonwealth of

Pennsylvania’s Office of Disciplinary Counsel (“Office of

Disciplinary Counsel”), appeals from the United States District

Court for the Eastern District of Pennsylvania’s order granting

summary judgment to Robert Surrick in this declaratory

judgment action. The District Court declared that Surrick, an

attorney authorized to practice before the Eastern District of

Pennsylvania but suspended by the Bar of the Supreme Court of

Pennsylvania (“Pennsylvania Bar”), is permitted to maintain a

law office in the Commonwealth of Pennsylvania for the sole

purpose of supporting his practice before the federal court,

subject to certain conditions. The Office of Disciplinary

Counsel raises two challenges to our jurisdiction. First, it

contends that this appeal has been rendered moot by Surrick’s

alleged failure to comply with the conditions imposed by the

District Court. Second, it argues, as it did before the District

Court, that this case is not ripe for adjudication. As to the

merits, the Office of Disciplinary Counsel argues that the

District Court erred in determining that Surrick is permitted to

maintain a law office in Pennsylvania to support his federal

practice, and urges us to adopt the Supreme Court of

Pennsylvania’s analysis in Office of Disciplinary Counsel v.

Marcone, 855 A.2d 654 (Pa. 2004).

Although we conclude that we have jurisdiction over this

appeal and will affirm the judgment for the reasons stated

below, we believe that Surrick has not complied with the
4

conditions imposed by the District Court. Specifically, the

District Court ordered Surrick to “commence an application for

reinstatement to the Bar of the Supreme Court by April 15,

2005,” later extended to May 15, 2005, emphasizing that:

the requirement that Plaintiff apply for

reinstatement to the Bar of the Supreme Court of

Pennsylvania while being permitted to maintain

an office for its practice before the Eastern

District, reflects this Court’s understanding that

by reinstating the Plaintiff to practice before the

Eastern District before his suspension from

practice in the courts of Pennsylvania expires,

Plaintiff was given a temporary pass to resume his

Federal law practice and not a permanent

absolution from requirements and oversight of the

Commonwealth.

(D. Ct. Op. at 25 (emphasis in original).)

 

Surrick has not complied in good faith with this order and

has ignored the District Court’s admonition that he was only

granted a temporary pass. Although Surrick went through the

motions of reapplying to the Pennsylvania Bar, he has thus far

refused to comply with the requirements for reinstatement, to

wit, paying the costs of the disciplinary proceedings and

enrolling in required Continuing Legal Education (“CLE”)

courses. Nonetheless, Surrick has asserted to this Court that he

will pay the costs and enroll in the courses if he prevails on

appeal. Although we do not excuse his dilatory conduct, we

decline to impose the draconian punishment of vacating the
5

District Court’s carefully crafted order and determining the

question of federal preemption to be moot. Instead, as detailed

in Part VI, we will direct Surrick to satisfy forthwith the

requirements for reinstatement to the Pennsylvania Bar. 

I.

Surrick was admitted to the Pennsylvania Bar in 1961

and to the Bar of the United States District Court for the Eastern

District of Pennsylvania (“Eastern District of Pennsylvania

Bar”) in 1966. On March 24, 2000, following disciplinary

proceedings, Surrick was suspended from the Pennsylvania Bar

for five years. The Eastern District of Pennsylvania ordered a

reciprocal suspension of thirty months. In re Surrick, 2001 WL

1823945 (E.D. Pa., June 21, 2001), aff’d, 338 F.3d 224 (3d Cir.

2003). 

The offense that led to suspensions in the two

jurisdictions was the determination that he “acted with reckless

disregard of the truth when he leveled accusations of case fixing

against certain jurists in a pleading filed in the Superior Court of

Pennsylvania.” Office of Disciplinary Counsel v. Surrick, 749

A.2d 441, 442 (Pa. 2000). In its order imposing the suspension,

the Pennsylvania Supreme Court noted:

The respondent uses his self-aggrandized role as

a crusader for justice as a shield from any liability

for his actions while simultaneously arguing that

any judicial decision in contravention of his

position proves that he is a victim of a judicial

conspiracy. Respondent’s personal views on
6

judicial reform cannot excuse his reckless conduct

in bringing unsubstantiated claims against

individual members of the judiciary. 

* * *

Respondent’s predilection to unprovoked

character assassination whenever he receives an

adverse ruling exhibits conduct that calls into

question his ability to continue practicing law in

a fit manner. 

* * *

When a lawyer holds the truth to be of so little

value that it can be recklessly disregarded when

his temper and personal paranoia dictate, that

lawyer should not be permitted to represent the

public before the courts of this Commonwealth.

Id. at 447, 449.

Surrick was readmitted to the Eastern District of

Pennsylvania Bar on May 17, 2004. On August 16, 2004, the

Pennsylvania Supreme Court issued its decision in Marcone,

which involved disciplinary proceedings against another

Pennsylvania attorney. Therein, the Pennsylvania Supreme

Court held that an attorney suspended from practice in the

Pennsylvania courts but readmitted to the federal district court

could not maintain a law office in the Commonwealth so long

as he remains unauthorized to practice in the Pennsylvania state

courts. Marcone, 855 A.2d at 668.
7

On December 7, 2004, Surrick initiated this declaratory

judgment action against Paul Killion, Chief Disciplinary

Counsel of the Office of Disciplinary Counsel, and the named

justices of the Pennsylvania Supreme Court, alleging that the

decision in Marcone was contrary to federal law and that he

reasonably feared that the Office of Disciplinary Counsel would

administer sanctions if he were to open a law office. Surrick

sought a declaration that he is permitted to open a law office in

Pennsylvania for the exclusive purpose of supporting his

practice before the Eastern District of Pennsylvania and a

preliminary injunction enjoining the Office of Disciplinary

Counsel and the named justices from disciplining him for

maintaining such an office. Surrick’s claims were predicated on

the Supremacy Clause of the United States Constitution and the

First Amendment. The Office of Disciplinary Counsel

subsequently moved to dismiss Surrick’s complaint, arguing,

inter alia, that his claims were not ripe and that his complaint

failed to state a claim upon which relief could be granted. 

The District Court held hearings on January 24 and

March 7, 2005. At those hearings, Surrick testified that he

intends to open and maintain an office to support his practice

before the federal courts. He testified that he intends to practice

in the medical malpractice field, suing those who bring

“frivolous” malpractice lawsuits against doctors. He testified

that such lawsuits would be brought in federal court pursuant to

federal diversity jurisdiction. The Office of Disciplinary

Counsel responded by presenting expert testimony that, using

modern technology, attorneys are now able to practice law

without a traditional law office.
 The District Court later amended its order to provide 1

Surrick until May 15, 2005, to commence an application.

8

On April 20, 2005, the District Court granted limited

declaratory relief in Surrick’s favor, declaring that Surrick “may

open a legal office for the practice of law before the United

States District Court for the Eastern District” of Pennsylvania

subject to eight conditions:

(a) Plaintiff is authorized by the Eastern

District’s reinstatement Order to open and

maintain a law office located at 1332

Ritter Street in Philadelphia, PA solely for

the practice of law before this court;

(b) Plaintiff shall commence an application for

reinstatement to the Bar of the Supreme

Court of Pennsylvania by April 15, 2005

[sic];1

(c) There shall not be any signs on the outside

of plaintiff’s office building reflecting his

federal practice and plaintiff shall not

advertise his practice by way of outdoor

advertisement or posters;

(d) Plaintiff shall provide an inscription on all

stationary [sic], business cards, files,

websites or other documents or

correspondence clearly delineating that his

practice of law is strictly limited to cases

or controversies within the jurisdiction of

the United States District Court for the
9

Eastern District of Pennsylvania;

(e) Plaintiff shall not provide legal advice or

consultation on state law matters and

where appropriate will refer to other

attorneys any state court cases or inquiries;

(f) Pursuant to his status as an admitted

attorney before the Eastern District,

plaintiff is authorized to represent clients

on all matters within the jurisdiction of this

court;

(g) Plaintiff shall promptly inform all persons

seeking his legal services that he is only

admitted to practice before the U.S.

District Court of the Eastern District of

Pennsylvania and is under suspension from

practice in, and respecting legal matters to

be filed in, the state courts of

Pennsylvania.

(h) Plaintiff shall advise clients that if they

have a[] complaint[] regarding the ethics

of his legal representation . . . they may

contact the Chief Judge for the Eastern

District as well as the Office of

Disciplinary Counsel.

The District Court denied Surrick’s request for injunctive

relief, and declined to reach his First Amendment arguments.

On May 13, 2005, Surrick submitted an application for

reinstatement to the Pennsylvania Bar. The application was

subsequently returned for being incomplete and defective.
10

According to the Office of Disciplinary Counsel, Surrick

refused to pay the costs of his underlying disciplinary

proceedings and to apply for the requisite 36 hours of CLE

courses. Surrick disputes the costs of the proceedings and

contends that he does not need to enroll in CLE courses until the

resolution of this matter on appeal. 

On May 24, 2005, the Office of Disciplinary Counsel

filed a motion seeking relief from judgment under Rule 60(b) of

the Federal Rules of Civil Procedure or, alternatively, a stay of

the order pending appeal. On May 25, 2005, the District Court

denied the motion “for lack of jurisdiction in light of the

appeal.” The District Court also stated that even if it had

jurisdiction, the motion would be denied as premature because

Surrick had not been given adequate opportunity to cure any

defects in his application.

II. 

As an initial matter, the Office of Disciplinary Counsel

argues that Surrick has failed to comply with the conditions

imposed by the District Court’s order and that his

noncompliance renders this appeal moot. Specifically, it

contends that although the period of Surrick’s suspension from

the Pennsylvania Bar expired on March 24, 2005, and he was

eligible to reapply eight months in advance of that date, to wit,

June 24, 2004, Surrick has failed to comply in good faith with

the critical requirement that he “commence an application for

reinstatement to the Bar of the Supreme Court of Pennsylvania

by [May 15, 2005].” According to the Office of Disciplinary

Counsel, Surrick has yet to pay the costs of the disciplinary
11

proceedings and has failed to enroll in the required CLE

courses. The Office of Disciplinary Counsel contends that

Surrick’s excuse – that the amount of costs is in dispute and that

he is awaiting the outcome on appeal – is not valid and that he

should have contested the amount of costs before the

Pennsylvania Supreme Court. 

The starting point for our mootness analysis is the

familiar proposition that “‘federal courts are without power to

decide questions that cannot affect the rights of litigants in the

case before them.’” DeFunis v. Odegaard, 416 U.S. 312, 316

(1974) (quoting North Carolina v. Rice, 404 U.S. 244, 246

(1971)). Article III requires that an actual, live controversy “be

extant at all stages of review, not merely at the time the

complaint is filed.” Steffel v. Thompson, 415 U.S. 452, 459 n.10

(1974); see also DeFunis, 416 U.S. at 316 (“The inability of the

federal judiciary to review moot cases derives from the

requirement of Art. III of the Constitution under which the

exercise of judicial power depends upon the existence of a case

or controversy.”) (quotation omitted). “A central question in

determining mootness is whether a change in circumstances

since the beginning of the litigation precludes any occasion for

meaningful relief.” Old Bridge Owners Co-op. Corp. v. Twp. of

Old Bridge, 246 F.3d 310, 314 (3d Cir. 2001); see also 13A C.

Wright, et al., Federal Practice and Procedure § 3533, at 261

(1984). The “burden of demonstrating mootness ‘is a heavy

one.’” County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)

(quoting United States v. W.T. Grant Co., 345 U.S. 629, 633

(1953)). 

As discussed in more detail in Part VI, we agree with the
12

Office of Disciplinary Counsel that Surrick has not complied in

good faith with the District Court’s order. Nonetheless, we

conclude that this case is not moot at this stage. What

determines mootness here is whether the District Court’s order

is still in effect and whether Surrick is still maintaining a law

office without having been reinstated by the Pennsylvania Bar.

Both of these conditions are met. The District Court’s order is

now before this Court, and we have jurisdiction to decide not

only the legal issues presented in the briefs, but the appropriate

courses of action for the parties. Although we do not excuse

Surrick’s dilatory conduct, it is not sufficiently egregious to

merit voiding the District Court’s carefully crafted judgment at

this stage. Rather, to insure total compliance with the District

Court’s order, we will require that Surrick pay the disputed costs

and enroll in the required CLE courses within 10 days of the

date of this judgment. In light of this resolution, we are satisfied

that the parties still have a concrete interest in the outcome of

this case. See Ellis v. Brotherhood of Ry., Airline and S.S.

Clerks, 466 U.S. 435, 442 (1984) (“[A]s long as the parties have

a concrete interest, however small, in the outcome of the

litigation, the case is not moot.”). 

III. 

The Office of Disciplinary Counsel next contends that

Surrick’s complaint failed to assert a justiciable case or

controversy as required by Article III of the United States

Constitution and the Federal Declaratory Judgment Act, 28

U.S.C. § 2201. Specifically, it argues that this case is not ripe

for adjudication because the Office of Disciplinary Counsel has

never threatened Surrick with discipline. The District Court
13

disagreed, concluding that “the threat of potential contempt

sanctions against [Surrick] is clear given any reasonable reading

of the Marcone decision” and that Surrick has presented

sufficient evidence “that the threat of contempt sanctions has

caused him to forego his intended plans to open a law office

within the Commonwealth of Pennsylvania.” Our review of the

District Court’s ripeness analysis is plenary. Taylor Inv. Ltd. v.

Upper Darby Twp., 983 F.2d 1285, 1289 (3d Cir. 1993).

Ripeness prevents courts from “entangling themselves in

abstract disagreements.” Abbott Labs. v. Gardner, 387 U.S.

136, 148 (1967). Ultimately, a case must involve “a real and

substantial controversy admitting of specific relief through a

decree of a conclusive character, as distinguished from an

opinion advising what the law would be upon a hypothetical

state of facts.” Rice, 404 U.S. at 246 (quotation omitted). In

determining whether a case is ripe, we generally examine: “(1)

‘the fitness of the issues for judicial decision,’ and (2) ‘the

hardship of the parties of withholding court consideration.’”

Khodara Env’t, Inc. v. Blakey, 376 F.3d 187, 196 (3d Cir. 2004)

(quoting Abbott Labs., 387 U.S. at 149). In Step-Saver Data

Systems, Inc. v. Wyse Technology, 912 F.2d 643 (3d Cir. 1990),

however, we established a more refined test to determine

whether we will engage in pre-enforcement review in the

context of a declaratory judgment action: (1) the parties must

have adverse legal interests; (2) the facts must be sufficiently

concrete to allow for a conclusive legal judgment, and (3) the

judgment must be useful to the parties. Id. at 647. With these

three factors in mind, we turn to our analysis of whether the

District Court erred in concluding that this case is ripe for

adjudication.
Specifically, the Pennsylvania Supreme Court rejected the 2

argument that “relevant federal statutes and rules establish that

the regulation of federal practice is within the authority of the

federal courts and the right to practice ‘logically’ includes the

maintenance of a law office for that practice.” Id. at 663-666. 

14

A. 

In assessing the adversity of the parties’ interest, courts

look to “[w]hether the claim involves uncertain and contingent

events, or presents a real and substantial threat of harm.” NE

Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333,

342 n.9 (3d Cir. 2001). It is not necessary for the party seeking

review to have suffered a completed harm in order to establish

adversity of interest so long as there is a substantial threat of real

harm that remains throughout the course of the litigation.

Presbytery, 40 F.3d at 1463.

The District Court was correct in determining that the

adversity of interest prong is satisfied here. In Marcone, the

stated issue was “whether an attorney who has been suspended

from the practice of law by the Pennsylvania Supreme Court

may nevertheless maintain a law office in the Commonwealth of

Pennsylvania for purposes of practicing before the United States

District Court for the Eastern District of Pennsylvania.” 855

A.2d at 656. Answering this question in the negative, the

Supreme Court of Pennsylvania concluded that maintaining an

office would constitute “engag[ing] in . . . law-related activities

in the Commonwealth” in violation of Rule 217(j) of the

Pennsylvania Rules of Disciplinary Enforcement, and rejected

the argument that any federal law preempts Rule 217(j). 

2
The court determined that preventing an attorney from

establishing an office for the purpose of engaging in

representation before a federal court does not “significantly

frustrate” the exclusive authority of a federal court to determine

who may practice law before it. Id. at 665. 

 The Office of Disciplinary Counsel simultaneously 3

contends that there is no conflict between Marcone and the

District Court’s order and that the District Court erred in

rejecting Marcone’s preemption analysis. In addition to being

contradictory, the Office of Disciplinary Counsel misreads both

15

Although, as with any case, the holding of Marcone is

necessarily limited to the specific facts and arguments presented

there, we agree with the District Court that Surrick faces a

substantial threat of sanctions under any reasonable reading of

Marcone. Like the attorney in Marcone, Surrick is a lawyer

suspended from the Pennsylvania Bar who desires to open a

legal office for the sole purpose of supporting his practice

before the Eastern District of Pennsylvania. In the words of the

District Court, “[Surrick] fits the prescription.” Moreover, the

District Court made a factual determination that Surrick’s fear

of sanctions has actually deterred him from opening an office,

and we perceive no reason to disturb this finding. Finally, we

find it significant that the Office of Disciplinary Counsel has

repeatedly refused to assure either the District Court or this

Court that Surrick will not be subject to the same penalties as

the attorney in Marcone should he open a law office within the

Commonwealth for the purpose of representing clients before

the Eastern District of Pennsylvania. See Presbytery, 40 F.3d 3
the District Court’s order and Marcone. Although the District

Court did its best to fashion an order that would address the

Commonwealth’s concerns, many of which were expressed in

Marcone, its decision is nevertheless in clear conflict with

Marcone. The only significant factual difference between this

case and Marcone is that the attorney in Marcone had a sign

outside his office that said, “Frank J. Marcone, Attorney at

Law,” without any qualification. There was therefore a greater

risk of public confusion in Marcone. This, however, was clearly

not the ratio decidendi of the court’s holding.

16

at 1458 (finding significant that the state “expressly refused to

offer any assurances” that it would not prosecute plaintiff).

Accordingly, we conclude that the threat of sanctions is

sufficiently real and substantial to satisfy the first prong of the

Step-Saverinquiry. As the Supreme Court has repeatedly stated,

“‘[one] does not have to await the consummation of threatened

injury to obtain preventative relief. If the injury is certainly

impending, that is enough.’” Babbitt v. United Farm Workers

Nat’l Union, 442 U.S. 289, 298 (1979) (quoting Pennsylvania

v. West Virginia, 262 U.S. 553, 593 (1923)).

B. 

The second Step-Saver factor requires us to consider the

fitness of the issue for adjudication to ensure that the declaratory

judgment would in fact determine the parties’ rights, as

distinguished from an advisory opinion based on a hypothetical

set of facts. Presbytery, 40 F.3d at 1468. Cases presenting
17

predominantly legal questions are particularly “amenable to a

conclusive determination in a preenforcement context,” and

generally require less factual development. Id. As the District

Court observed, we have previously found federal preemption

to be predominantly legal for purposes of the conclusiveness

prong of the Step-Saver analysis. See Armstrong World Indus.,

Inc. by Wolfson v. Adams, 961 F.2d 405, 421 (3d Cir. 1992)

(“[W]here the question presented is ‘predominantly legal,’ such

as one of federal preemption, the need for factual development

is not as great.”); see also NE Hub Partners, 239 F.3d at 344

(“[A] determination of whether there is preemption primarily

raises a legal issue, a circumstance which facilitates entry of

declaratory judgment.”). Nonetheless, a plaintiff raising a

predominantly legal claim must still meet the minimum

requirements for Article III jurisdiction. Armstrong, 961 F.2d at

421. 

Here, we perceive no reason why disposition of this case

could not conclusively determine the legal issues in dispute.

Surrick’s sole legal contention is that the Office of Disciplinary

Counsel’s policy and practice of disciplining attorneys conflicts

with the Eastern District of Pennsylvania’s exclusive authority

to regulate its own attorney admissions in violation of the

Supremacy Clause of the United States Constitution. See U.S.

Const. Art. VI, cl. 2. The question presented is therefore one of

federal preemption, which is predominantly legal. See

Armstrong, 961 F.2d at 421. 

As to the factual record, Surrick testified as to the

specific parameters he would follow were he to open a law

office. He assured the District Court that he would not place a
18

sign or other advertisement outside his office, that any stationary

would specifically indicate that he is only licensed to practice in

the Eastern District of Pennsylvania, and that he would not

provide any legal advice on state law matters. Moreover, the

District Court made these assurances conditions of its order. We

fail to see how any further factual development, short of waiting

for Surrick to open an office and the Office of Disciplinary

Counsel to then take action, could aid our resolution of the

preemption question. We therefore conclude that the second

Step-Saver prong is satisfied.

C. 

The final Step-Saver prong requires us to consider

whether a declaratory judgment will affect the parties’ plans of

actions by alleviating legal uncertainty. Step-Saver, 912 F.2d at

649 n.9; see also NE Hub Partners, 239 F.3d at 342 n.9. This

prong is undoubtedly satisfied here. The District Court found

that fear of sanctions has effectively deterred Surrick from

opening a law office. A declaration of rights would permit

Surrick to open a law office within the Commonwealth without

fear of governmental sanctions, and also inform him of any

guidelines he must follow in operating his practice. A grant or

denial of relief would therefore materially affect the parties and

serve the purpose of the Declaratory Judgment Act –

“clarify[ing] legal relationships so that plaintiffs . . . [can] make

responsible decisions about the future.” See Step-Saver, 912

F.2d at 649. 

D. 
19

All three Step-Saver factors have been met in this case.

Surrick faces a real and substantial threat of sanctions in light of

Marcone, further factual development would not be helpful in

resolving the predominantly legal question presented here, and

a declaratory judgment will materially affect the actions of the

parties. We therefore agree with the District Court that this case

is ripe for adjudication. We turn now to the merits.

IV.

 Although federal courts have traditionally used

admission to the bar of a state court as a standard for initial

admission to their bars, admission to practice law before a

state’s courts and admission to practice before the federal courts

in that state are separate, independent privileges. See Theard v.

United States, 354 U.S. 278, 281 (1957) (“The two judicial

systems of courts, the state judicatures and the federal judiciary,

have autonomous control over the conduct of their officers,

among whom . . . lawyers are included.”). Consistent with this

settled proposition, the United States Supreme Court “has

repeatedly emphasized . . . that disqualification from

membership from a state bar does not necessarily lead to

disqualification from a federal bar.” Frazier v. Heebe, 482 U.S.

641, 647 n.7 (1987); see Theard, 354 U.S. at 282 (“[D]isbarment

by federal courts does not automatically flow from disbarment

from state courts.”); Selling v. Radford, 243 U.S. 46, 49 (1917).

Although the federal courts are empowered with absolute

authority to grant privileges and impose restrictions on their

members, the dictates of comity must never be ignored.

Accordingly, we acknowledge the Pennsylvania Supreme
20

Court’s conclusion in Marcone and the Commonwealth’s

compelling interest in regulating the practice of law within its

borders. Nonetheless, we believe that under the unique

circumstances presented here – the Pennsylvania period of

suspension was coming to a close and Surrick was permitted to

maintain an office for an extremely limited period – the solution

arrived at by the District Court, although bottomed on a federal

court’s undeniable right to impose privileges and restrictions on

its members, is not unduly offensive to a sister sovereign’s

absolute prohibition of maintaining an office under the facts and

circumstances in Marcone. 

The question in this case is whether a state may prohibit

an attorney admitted to the bar of a federal district court, but

suspended from the state bar, from maintaining a legal office for

the sole purpose of supporting a practice before the federal

court. The starting point for our analysis is the seminal case of

Sperry v. State of Florida, in which the United States Supreme

Court held that the State of Florida could not enjoin a local

patent practitioner, who was not admitted to the State Bar of

Florida, from preparing patent applications and other legal

instruments that are filed solely in the United States Patent and

Trademark Office. 373 U.S. 379, 385 (1963). The Supreme

Court began its analysis by recognizing that the state had a

substantial interest in regulating the practice of law within its

borders and that, in the absence of federal legislation, it could

validly prohibit non-lawyers from preparing and filing patent

applications. Id. at 383. Under the Supremacy Clause,

however, “‘the law of the State, though enacted in the exercise

of powers uncontroverted, must yield’ when incompatible with

federal legislation.” Id. at 384 (quoting Gibbons v. Ogden, 22
21

U.S. (9 Wheat) 1 (1824)). The Court reasoned that if the state

were permitted to enforce licensing requirements contrary to

federal law, the state would then have the power of review over

federal licensing requirements:

[a] State may not enforce licensing requirements

which, though valid in the absence of federal

regulation, give “the State’s licensing board a

virtual power of review over the federal

determination” that a person or agency is

qualified and entitled to perform certain

functions, or which impose upon the performance

of activity sanctioned by federal license additional

conditions not contemplated by Congress. “No

State law can hinder or obstruct the free use of a

license granted under an act of Congress.” 

Id. at 385 (citations and footnotes omitted). 

Sperry therefore 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.; see also In re Desilets,

291 F.3d 925, 930 (6th Cir. 2002) (“When state licensing laws

purport to prohibit lawyers from doing that which federal law

entitles them to do, the state law must give way.”). 

The Office of Disciplinary Counsel contends that Sperry

is distinguishable for two reasons. First, the enabling

congressional statute in Sperry expressly allowed for the
22

prosecution of patents by non-lawyers, whereas here no

Congressional statute expressly permits Surrick to maintain a

law office. Second, that because Surrick intends to litigate

federal diversity actions, he is for all practical matters practicing

state law. Cf. Marcone, 855 A.2d at 654 (“State law concerns

are the foundation of federal diversity actions. . . . Thus, to

suggest that because maintenance of an office is limited to

federal practice, it does not constitute the practice of law within

the borders of a state, is to ignore the realities of current legal

practice.”). We reject these arguments.

A.

Under the Supremacy Clause, when state law conflicts or

is incompatible with federal law, the federal law preempts the

state law. Preemption generally occurs in three ways: (1) where

Congress has expressly preempted state law; (2) where Congress

has legislated so comprehensively that federal law occupies an

entire field of regulation and leaves no room for state law; or (3)

where federal law conflicts with state law. See Barnett Bank of

Marion County v. Nelson, 517 U.S. 25, 31 (1996). This case

indisputably involves “conflict preemption,” which arises when

“state law stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress.” Fid.

Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 152, 153

(1982) (internal quotations and citations omitted). 

As discussed above, it is well established that “a federal

court has the power to control admission to its bar and to

discipline attorneys who appear before it.” Chambers v. NASCO,

Inc., 501 U.S. 32, 43 (1991); In re Poole, 222 F.3d 618, 620 (9th

Cir. 2000) (“[A]s nearly a century of Supreme Court precedent

makes clear, practice before federal courts is not governed by

state court rules.”). This power is rooted in both statute, see 28

U.S.C. § 2071(a) (“The Supreme Court and all courts
 Rule 83.6 VII(I) of the Eastern District Rules of Civil 4

Procedure states:

Any attorney who is reinstated may practice

before this court notwithstanding the refusal or

failure of any state court to reinstate said attorney

to practice. However, reinstatement to practice

before this court does not authorize an attorney to

practice in any other jurisdiction, and no attorney

shall hold himself or herself as authorized to

practice law in any jurisdiction in which the

attorney is not admitted.

Local Rule 83.6 VII(I) (2005).

23

established by Act of Congress may from time to time prescribe

rules for the conduct of their business.”); 28 U.S.C. § 1654 (“In

all courts of the United States the parties may plead and conduct

their own cases personally or by counsel, as, by the rules of such

courts, respectively, are permitted to manage and conduct causes

therein.”); Rule 83, Federal Rules of Civil Procedure, and the

inherent authority of the federal courts, Chambers, 501 U.S. at

43 (using federal courts’ control over admission to their bars as

an example of an inherent power “governed not by rule or

statute but by the control necessarily vested in courts to manage

their own affairs so as to achieve the orderly and expeditious

disposition of cases”) (citation and quotation omitted). Pursuant

to its exclusive authority over members of its bar, Poole, 222

F.3d at 621, the Eastern District of Pennsylvania promulgated

Rule 83.6 VII(I) of the Eastern District Rules of Civil

Procedure, which expressly permits attorneys suspended from a

state bar to practice before the Eastern District of Pennsylvania.4

It is therefore beyond dispute – and the Office of Disciplinary

Counsel does not question this point – that the Commonwealth

lacks the authority to prohibit Surrick from practicing law before
24

the Eastern District of Pennsylvania. See In re Desilets, 291

F.3d at 929 (observing that although the enabling Congressional

statute in Sperry expressly authorized federal authorities to

determine who may practice law and 28 U.S.C. §§ 1654 & 2071

do not, this is a “distinction without a difference”); cf. United

States v. Hvass, 355 U.S. 570, 575 (1958) (holding that rules

and regulations promulgated by a district court that have been

lawfully authorized and have a clear legislative base qualify as

“a law of the United States,” as that phrase is used in a perjury

statute).

The more difficult question is whether a state law

prohibiting Surrick from maintaining a law office is preempted

by this exclusive authority of the Eastern District of

Pennsylvania to determine who may practice law before it. The

Office of Disciplinary Counsel argues that conflict preemption

does not apply here because, unlike in Sperry, where the federal

statute specifically authorized non-lawyers to prepare and

prosecute patents, there is no federal statute or local rule

expressly setting forth the right of federal courts to determine

who may maintain an office in a state. 

This argument is based on both a misreading of Sperry

and a misapprehension of the preemption doctrine. Federal law

preempts not only state laws that expressly prohibit the very act

the federal law allows, but those that “stand as an obstacle to the

accomplishment of the full purposes and objectives” of federal

law. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248 (1984).

Thus, federal and state law need not be contradictory on their

faces for preemption to apply. It is sufficient that the state law

“impose[s] . . . additional conditions” not contemplated by

Congress. Sperry, 373 U.S. at 385.

In Sperry, for example, the State Bar of Florida argued

that the federal license to practice before the Patent Office was
25

a narrow one, only conferring the right to practice in the

physical presence of the Patent and Trademark Office and the

District of Columbia. Id. The Supreme Court rejected this

contention, stating that Sperry had to be permitted to “perform[]

tasks incident to the preparation and prosecution of patent

applications.” Id. at 404. Although the Court expressly

declined “to determine what functions are reasonably within the

scope of the practice authorized” by federal law, it noted that a

practitioner “must of course render opinions as to the

patentability of the inventions brought to him, and . . . it is

entirely reasonable for a practitioner to hold himself out as

qualified to perform his specialized work, so long as he does not

misrepresent the scope of his license.” Id. at 402 n.47. 

The reasons for the broad construction of the Supremacy

Clause are plain. If preemption only applied to state laws that

directly contradict federal laws, federal laws could be effectively

nullified by state laws prohibiting those acts that are incident to,

but not specifically authorized by, federal law. Under such a

regime, state officials would have a “virtual power of review”

over federal laws. See id. at 385 (quotation marks omitted).

Accordingly, the question here is not whether any federal law

expressly confers the right to maintain an office, but whether the

maintenance of an office is “reasonably within the scope” of the

federally-conferred license to practice law. Id. at 402 n.47. 

We agree with the District Court that maintaining a law

office is “reasonably within the scope of the practice authorized”

by 28 U.S.C. §§ 1654 & 2071 and the local rules and that the

state’s regulation of such conduct hinders Surrick’s federal

license to practice law. We recognize that the Pennsylvania

Supreme Court reached a contrary conclusion in Marcone. See

855 A.2d at 665 (“While regulation of the maintenance [of] a

law office through which one holds himself out to the public and

counsels clients may place some burden on one who has been
26

suspended from the practice of law in a particular state but who

is nevertheless admitted before a federal court, our regulation of

those who maintain a law office within our borders simply does

not, without more, result in conflict pre-emption.”). In all

candor, we have extreme difficulty in accepting the notion that

maintaining an office constitutes engaging in the practice of law

but prohibiting one from maintaining an office does not burden

the right to practice law. Perhaps the explanation lies in the

difference in the record before us and that which was before our

colleagues on the Pennsylvania Supreme Court. Here, the

District Court heard expert testimony on the ability of an

attorney to practice law without a physical office and concluded

that:

[d]espite technological advances in the practice of

law – such as electronic filing and case research

through internet subscriptions – physical space

remains necessary for the representation of

clients. A physical office space provides a

location for confidential counseling with clients

as well as room to store the necessary equipment,

such as fax machines, legal text, telephones, paper

files, typewriters and computers, association with

proper management of legal matters. Without a

physical office location the plaintiff would be

effectively prohibited from “performing [those]

tasks which are incident to” litigating cases before

the Eastern District.

(D. Ct. Op. at 21 (quoting Sperry, 373 U.S. at 404).)

We agree with these findings. As both a practical and

historical matter, the maintenance of a law office is incident to

the practice of law. Although there is no precise formula for

determining when a state regulation goes too far in burdening
 The Office of Disciplinary Counsel contends that Marcone 5

would not prohibit Surrick from maintaining a home office. As

an initial matter, we are dubious of this reading of Marcone. If

maintaining a separate law office is engaging in “law-related

activities,” see Marcone, 855 A.2d at 662, we see no reason why

maintaining a home office would not be. Moreover, we refuse

to require the District Court to dissect each attorney’s personal

living situation to determine whether it would be feasible for

him or her to establish a home office. It is sufficient that

maintaining a separate law office is, as a general matter, incident

to the practice of law.

 The Office of Disciplinary Counsel implies that Marcone 6

relied on this argument in determining that federal preemption

does not apply. (ODC Br. at 16.) It did not. Marcone only

discussed the overlay of state and federal law in concluding that

27

federal goals, see NW Cent. Pipeline Corp. v. State Corp.

Comm’n of Kansas, 489 U.S. 493, 515-519 (1989) (observing

that some burden on federal goals does not result in

preemption), the direct effect of a state regulation prohibiting an

attorney from maintaining a law office is the frustration of his

or her ability to practice before a federal court. Accordingly, 5

we respectfully disagree with the Pennsylvania Supreme Court,

and conclude that the Eastern District of Pennsylvania’s power

to determine who may practice law before it preempts

Pennsylvania law barring an unlicensed attorney from

maintaining a law office.

B.

We reject the Office of Disciplinary Counsel’s additional

argument that the District Court ignored “the overlay of federal

with state practice” and that Surrick’s intention to practice solely

diversity cases should influence our decision. (ODC Br. at 16.) 6
the maintenance of a legal office for the purpose of practicing

before a federal court constitutes “law-related activities” that the

Commonwealth has an interest in regulating. See Marcone, 855

A.2d at 661. We do not question this determination. Absent

conflicting federal law, the Commonwealth of Pennsylvania

would be free to prohibit suspended attorneys from maintaining

offices for the purpose of practicing before the federal courts.

See Sperry, 373 U.S. at 383 (“We do not question the

determination that under Florida law the preparation and

prosecution of patent applications for others constitutes the

practice of law. . . . Nor do we doubt that Florida has a

substantial interest in regulating the practice of law within the

State and that, in the absence of federal legislation, it could

validly prohibit nonlawyers from engaging in this circumscribed

form of patent practice.”).

It goes without saying that the Office of Disciplinary 7

Counsel’s proposed distinction is overly simplistic. Many

diversity cases involve the law of states other than the forum

state, and many federal question cases turn on questions of state

law. If we were to adopt the Office of Disciplinary Counsel’s

reasoning, whether an attorney is admitted to the bar of a federal

court would have to depend on the facts and law of each case.

28

Although we acknowledge that federal cases, and especially

diversity cases, often involve questions of Pennsylvania law, and

that the Commonwealth has a legitimate interest in preventing

suspended attorneys from practicing state law, preemption

analysis does not involve a balancing of state and federal

interests. Once it is determined that there is a conflict between

a valid federal law and a state law, the state law must give way.

See Sperry, 373 at 385. The Office of Disciplinary Counsel

cannot point to any authority indicating that a federal court’s

power to determine who may practice law before it depends on

the type of cases a lawyer intends to practice. Under 28 U.S.C. 7
29

§§ 1654 & 2071 and the local rules, the Eastern District of

Pennsylvania has the authority to determine who may practice

law before it regardless of the extent to which a lawyer’s

practice might involve questions of state law. We therefore

reject the argument that the intertwining of state and federal law

somehow “preclude[s] a finding of federal preemption.” (ODC

Br. at 16.)

V.

It is difficult to conceive of a matter that appears to

jeopardize concepts of comity more than the case presently

before us. It could be considered that the holding here is on

collision course with the highest court of a separate sovereign –

an important state that contains three judicial districts in the

Third Circuit – in a matter that concerns the Commonwealth of

Pennsylvania no less than the Eastern District of Pennsylvania.

But there are three jurisprudential considerations present here

that demonstrate a felicity of respect to the Pennsylvania

Supreme Court.

First, we note that our holding does not overrule

Marcone. Only the United States Supreme Court has the power

to overrule a decision of the highest court of a state on a

question of federal law. See Rooker v. Fidelity Trust Co., 263

U.S. 413, 415-416 (1923); see also 28 U.S.C. § 1257 (“Final

judgments or decrees rendered by the highest court of a State in

which a decision could be had, may be reviewed by the Supreme

Court . . ..”).

Second, decisions of the Pennsylvania Supreme Court do

not bind this Court with respect to federal law, and, conversely,

“decisions of the federal district courts and courts of appeal[s],

including those of the Third Circuit Court of Appeals, are not

binding on Pennsylvania courts, even when a federal question is

involved.” Chiropractic Nutritional Assoc, Inc. v. Empire Blue
30

Cross and Blue Shield, 669 A.2d 975, 979-980 (Pa. Super. Ct.

1995) (collecting Pennsylvania cases refusing to follow

precedents of the lower federal courts); see also Hall v.

Pennsylvania Bd. of Probation and Parole, 851 A.2d 859, 865

(Pa. 2004) (declining to adopt conflicting interpretation of

federal law by this Court); see generally Allegheny County Gen.

Hosp. v. NLRB, 608 F. 2d 965, 969-970 (3d Cir. 1979) (defining

precedent as “a specific legal consequence [arising from] a

detailed set of facts in an adjudged case or judicial decision,

which is then considered as furnishing the rule for the

determination of a subsequent case involving identical or similar

material facts and arising in the same court or a lower court in

the judicial hierarchy.”) (emphasis added and footnote omitted).

Although consistency between state and federal courts is

desirable in that it promotes respect for the law and prevents

litigants from forum-shopping, there is nothing inherently

offensive about two sovereigns reaching different legal

conclusions. Indeed, such results were contemplated by our

federal system, and neither sovereign is required to, nor

expected to, yield to the other.

Third, recent action by the Eastern District of

Pennsylvania eliminates the possibility that this will be a

recurring problem. While this case was pending, the Eastern

District of Pennsylvania adopted Local Rule 83.6 VII(C), which

requires federal reinstatement to be held in abeyance until

reinstatement to state practice has been decided. 

VI.

As emphasized before, in declaring the legal rights of the

parties before it, the District Court severely restricted the

temporal scope of the rights granted to Surrick, granting him

only a brief absolution from requirements and oversight of the

Commonwealth of Pennsylvania. He was required to apply for
31

reinstatement to the Pennsylvania Bar no later than May 15,

2005. According to the Office of Disciplinary Counsel, Surrick

has not fully complied with the District Court’s order. Although

he made the application for reinstatement to the Pennsylvania

Bar, he refused to pay the costs of his underlying disciplinary

proceedings and to apply for the requisite 36 hours of CLE

courses. 

To us this is very disturbing. For more than one year

Surrick has had a free ride in maintaining a limited law office

without respecting critical time constraints of the declaratory

judgment order. Surrick’s delay in paying reinstatement costs

and enrolling in the requisite CLE courses is not justified.

Because his Pennsylvania suspension period expired on March

24, 2005, it made not a whit of difference which party would

prevail in this appeal. So long as he remains intent on practicing

law, Surrick would have to reapply to the Pennsylvania Bar and

enroll in the required CLE courses regardless of whether he or

the Office of Disciplinary Counsel prevailed in this appeal.

Moreover, the question of costs of the disciplinary proceedings

is not a matter within the jurisdiction of the federal judiciary.

This is a purely state issue that comes solely within the

jurisdiction of the Pennsylvania courts.

We will not permit any further delay. We hereby affirm

the declaratory judgment of the District Court with the following

conditions: not later than ten days after the mandate of this

Court issues, Surrick will file a completed application for

reinstatement to the Pennsylvania Bar, pay all costs required for

reinstatement, enroll in the requisite number of CLE courses,

and perfect all other requirements for reinstatement. Should he

have any problem with the amount owed to the Commonwealth,

he shall nevertheless pay the amount requested and then seek

reimbursement of any amounts he deems excessive only in the

appropriate Pennsylvania administrative agencies or its Supreme
32

Court, and not in any federal court. If Surrick chooses not to

follow these conditions, he will be considered in violation of a

critical portion of the declaratory judgment and without any

further order of this Court, he will be required to close his law

office until he is reinstated to practice law as a member of the

Pennsylvania Bar. 

Because this order emanates from this Court, no other

court in the Third Judicial Circuit has the power or authority to

amend or modify it in any respect. 

The mandate of this Court will issue forthwith.