Opinion
MISCELLANEOUS No. 00-86.
May 17, 2004
ROBRENO, BRODY, and DAVIS, JJ.
REPORT AND RECOMMENDATION
Before the Court is Robert B. Surrick's petition for reinstatement to practice before this court. The court imposed reciprocal discipline upon Mr. Surrick suspending him from practice for thirty months. The suspension period has now expired. For the reasons that follow, we recommend that the petition be granted.
(i)
On March 24, 2000, as a result of alleged violations of the Pennsylvania Rules of Professional Conduct, Mr. Surrick was suspended from practice by the Supreme Court of Pennsylvania for a period of five years. The Supreme Court of Pennsylvania found that Mr. Surrick had acted with reckless disregard for the truth when he leveled accusations of case fixing against certain state court jurists in a pleading filed in the Superior Court of Pennsylvania. On June 12, 2001, this court imposed reciprocal discipline upon Mr. Surrick, suspending him from practice in this court but reducing the period of suspension to thirty months. Mr. Surrick appealed this court's decision to the Third Circuit where a panel affirmed by a two to one vote. Mr. Surrick's certiorari petition to the Supreme Court was denied.
The procedural history before the District Court was summarized by the Third Circuit as follows:
Pursuant to Rule II(B)(2) of the Rules of Attorney Conduct (RAC) for the Eastern District of Pennsylvania, the District Court, in response to the decision of the Pennsylvania Supreme Court, issued an order on May 20, 2000, requiring Surrick to show cause why reciprocal discipline should not be imposed upon him pursuant to RAC II(D). In his reply, Surrick asserted that reciprocal discipline was inappropriate because the decision of the Pennsylvania Supreme Court lacked proof and violated his rights of procedural due process and free speech. On February 7, 2001, a three judge panel of the District Court, following its review of the state disciplinary proceedings and the arguments of the parties, issued a Report and Recommendation concluding that no reciprocal discipline should be imposed on Surrick. See Surrick II, 2001 WL 120078. This recommendation was rejected by a majority of the non-recused active and senior judges of the Eastern District of Pennsylvania, and the matter was referred to a new three judge panel for consideration of the proper punishment. Following a hearing, this second panel issued an Amended Report and Recommendation on June 12, 2001, concluding that Surrick should be suspended for a period of thirty months retroactive to April 24, 2000.
On June 21, 2001, by a vote of seventeen to nine, the twenty-six non-recused active and senior district judges adopted the second panel's Amended Report and Recommendation. See In re Surrick, No. MISC. 00-086, 2001 WL 1823945 (E.D.Pa. June 21, 2001) ( Surrick III). Surrick's thirty month suspension was made retroactive to April 24, 2000, the date of his state court suspension. The suspension expired on October 24, 2002.In re Surrick, 338 F.3d 224, 229 (3d Cir. 2003) (footnote omitted).
The thirty-month suspension has now expired and Mr. Surrick seeks immediate reinstatement to the bar of this court. By Order of Chief Judge Giles dated February 6, 2004, a three judge panel (the "Panel") was convened and charged with providing the court "with a Report and Recommendation on the matter [of Mr. Surrick's application of reinstatement.]"
On March 3, 2004, the Panel held a hearing at which Mr. Surrick, appearing pro se, testified under oath, offered evidence, and made legal argument. The sole issue before the court is whether the reinstatement of Mr. Surrick to the bar of this court is appropriate at this time.
The Office of Disciplinary Counsel was also invited to participate in the hearing but declined to do so.
(ii)
Reinstatement to the practice of law in this court is governed by Local Rule of Procedure 83.6.VII(C). The Rule provides, in pertinent part:
[at a hearing on reinstatement], the petitioner shall have the burden of demonstrating by clear and convincing evidence that the petitioner has the moral qualifications, competency and learning in the law required for admission to practice law before this court and that the petitioner's resumption of the practice of law will not be detrimental to the integrity and standing of the bar or to the administration of justice, or subversive of the public interest.
An attorney may be reinstated to practice before this court even if prohibited from practice by an order of the state court.
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 out himself or herself as authorized to practice law in any jurisdiction in which the attorney is not admitted.
Local Rule, 83.6.VII(I).
(iii)
At the hearing before the Panel, Mr. Surrick testified that prior to the suspension by the Supreme Court of Pennsylvania, he had practiced in both the federal and the state court for thirty-five years, that for a good portion of this time, he had achieved an "av" rating in Martindale Hubbell, and that he had successfully litigated a number of high profile cases in the federal court.Mr. Surrick also explained that since the state suspension, he had kept current with legal developments by reading the Legal Intelligencer and other legal periodicals. During this period, petitioner also assisted licensed attorneys with legal research. Mr. Surrick professed a sincere desire to return to practice as a general civil attorney limiting his practice to the federal court.
Mr. Surrick also appears contrite about the statements he made in the pleading filed in the Superior Court which formed the basis of the underlying discipline. When asked by the court "whether [he] would accept the judgment of the court [in the underlying disciplinary action] . . . or whether or not [he] stood by the statements," Mr. Surrick replied:
[in connection with the litigation in Delaware County which formed the basis of the statements about the judicial officers], the special hearing committee said and found as a fact, that what happened was so outside the range of ordinary error, Mr. Surrick had a right to believe that "something" had happened. Now having said that, I would like to say this. I was hot, the language was hot, and, you know, hindsight and in retrospect, I look at it and I could have said the same thing with more moderate language and to that extent, yes, I am sorry I did what I did.
Tr. 3/4/04 at 14-15.
(iv)
Before the suspension by the Supreme Court of Pennsylvania, petitioner was a competent practitioner in the federal and the state courts of Pennsylvania for thirty-five years. Since his suspension, he has kept current with legal developments.The events which lead to his suspension by the Supreme Court of Pennsylvania and to the imposition of reciprocal discipline by this court did not involve dishonesty or moral turpitude nor were clients harmed. While the conduct which led to the suspension is serious and was found to implicate the public's confidence in the administration of justice, a result we do not revisit here, petitioner now professes, "in hindsight and in retrospect," to be sorry for it.
Although the period of suspension imposed by the Supreme Court of Pennsylvania has not yet expired, the suspension imposed by this court has. Under our rules, an attorney may be reinstated to practice in this court although subject to a prohibition against practicing in another jurisdiction. Local Rule of Procedure 83.6.VII(I). Therefore, that the suspension imposed by the Supreme Court of Pennsylvania has not yet expired does not compel that we forbear from acting favorably upon this petition at this time.
The court has, on at least two occasions, reinstated an attorney to practice before this court, although the attorney had not yet been reinstated to practice in Pennsylvania, the jurisdiction which imposed the original discipline. See In re Robert F. Simone, 93-mc-180 (Order of Chief Judge Giles, dated Aug. 6, 2001); In re Frank J. Marcone, 95-mc-71 (Order of Chief Judge Giles, dated July 17, 2001).
Under the totality of circumstances present here, we conclude by clear and convincing evidence that petitioner possesses the moral qualifications, competency, and learning required to practice in this court. We further agree that Mr. Surrick's return to practice will not be detrimental to the integrity and standing of the bar or to the administration of justice or subversive of the public interest. See Local Rule 83.6.VII(C).
We offer no view as to whether Mr. Surrick should be readmitted to practice in Pennsylvania or admitted to practice in any other jurisdiction.
(v)
For the reasons set forth above, we recommend Mr. Surrick's immediate reinstatement to practice before this court.ORDER
AND NOW, this day of April 2004, it is Ordered that:1. Pursuant to the majority vote of the non-recused active and senior judges of the court the Report and Recommendation is ADOPTED;
2. Petitioner Robert B. Surrick is REINSTATED to practice before this Court.
AND IT IS SO ORDERED.