Surrick v. Killion

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit

6-2-2006

Surrick v. Killion
Precedential or Non-Precedential: Precedential

Docket No. 05-2615

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 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
 (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

2
 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

3
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

4
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

5
 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.

6
 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.

7
 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

1
The District Court later amended its order to provide
Surrick until May 15, 2005, to commence an application.

8
 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.

9
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

10
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

11
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

12
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.

13
 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

2
Specifically, the Pennsylvania Supreme Court rejected the
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
 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.3 See Presbytery, 40 F.3d

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.
3
The Office of Disciplinary Counsel simultaneously
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
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-Saver inquiry. 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

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
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

17
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.

18
 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

19
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

20
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

21
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

22
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

4
Rule 83.6 VII(I) of the Eastern District Rules of Civil
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
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

24
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

25
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

26
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.5 Accordingly,
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.6 (ODC Br. at 16.)

5
The Office of Disciplinary Counsel contends that Marcone
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.
6
The Office of Disciplinary Counsel implies that Marcone
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
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.7 Under 28 U.S.C.

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.”).
7
It goes without saying that the Office of Disciplinary
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
§§ 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

29
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

30
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

31
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.

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