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In re Surrick

August 1, 2003

IN RE: ROBERT B. SURRICK, APPELLANT


Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 00-mc-00086) District Judge: Honorable James T. Giles

Before: Roth, Fuentes and Cowen, Circuit Judges

The opinion of the court was delivered by: Roth, Circuit Judge

PRECEDENTIAL

Argued December 18, 2002

OPINION OF THE COURT

This appeal arises out of reciprocal attorney disciplinary proceedings in the United States District Court for the Eastern District of Pennsylvania. The Pennsylvania Supreme Court had suspended appellant Robert Surrick from the practice of law for a period of five years after it concluded that he had violated a provision of the Rules of Professional Conduct by falsely accusing two lower court judges of "fixing" cases. Following an independent review of the state disciplinary proceedings, the en banc District Court held that reciprocal discipline was warranted but limited the term of Surrick's suspension to thirty months, or half that imposed by the state court. On appeal, Surrick argues that the imposition of reciprocal discipline was inappropriate because the state proceedings upon which the District Court relied violated his rights of due process and free speech. Because we conclude that the District Court did not abuse its discretion in electing to suspend Surrick for a period of thirty months, we will affirm the judgment of the District Court.

I. Factual Background and Procedural History

The facts relevant to Surrick's underlying state court suspension are drawn from the opinion of the Pennsylvania Supreme Court and the Report and Recommendation issued by the initial District Court panel. See Office of Disciplinary Counsel v. Surrick, 749 A.2d 441, 442-443 (Pa. 2000) ( Surrick I ); In re Surrick, No. MISC. 00-086, 2001 WL 120078 (E.D. Pa. Feb. 7, 2001) ( Surrick II ). Surrick and his wife were defendants in Leedom v. Spano, Case No. 89-12977 in the Court of Common Pleas of Delaware County, a case which involved the foreclosure of a mortgage for which they were sureties. By stipulation of the parties, the issue of liability was submitted to the court. Judge Harry J. Bradley entered judgment against Surrick and his wife in July 1992.

On appeal to the Superior Court, Surrick entered an appearance as co-counsel and, in August 1992, filed a motion for the recusal of certain judges prior to the designation of the appellate panel. This motion stated, in relevant part:

It is believed and averred by Movant Surrick that Judge Bradley was "fixed" by the Delaware County Republican Organization as a result of a deal between that organization and Justice Larsen whereby Justice Larsen would again exert his political influence on behalf of Judge McEwen who was again seeking to fill a vacant Supreme court seat and, in return, the Delaware County Republican Organization, through its control of the Delaware county Judges, would fix this case.

In litigation arising out of the termination of the Surrick/Levy law practice... Upon appeal to the superior court, judge Olszewski dismissed the appeal not on the basis of anything in the record or any issue raised by opposing counsel but on the basis of an alleged procedural defect in the record. Even the most cursory examination of the record will reflect that the alleged defect in the Record relied upon by Judge Olszewski does not and did not exist. It is the belief of Movant Surrick that the decision of Judge Olszewski was based upon outside intervention, as it could not have resulted from any rational legal analysis of the Record.

749 A.2d at 443 (ellipses and emphasis in original).*fn2 The Office of Disciplinary Counsel investigated Surrick's allegations and, as a result, filed charges against him and convened a Special Hearing Committee of the Disciplinary Board. After due deliberation, the Special Hearing Committee issued a Report and Recommendation concluding that all charges should be dismissed. The Office of Disciplinary Counsel objected to the Report and Recommendation and sought oral argument before the Disciplinary Board. On October 17, 1997, the Board issued an opinion and order rejecting the arguments asserted by the Office of Disciplinary Counsel and dismissing the charges against Surrick.

The Office of Disciplinary Counsel filed a petition for allowance of appeal with the Pennsylvania Supreme Court. The court remanded the case to the Disciplinary Board on April 14, 1998, with instructions that the Board reconsider its prior recommendation in light of the then-recent decision in Office of Disciplinary Counsel v. Anonymous Attorney A, 714 A.2d 402 (Pa. 1998).

On remand, the Disciplinary Board determined that Surrick had violated Rule 8.4(c)*fn3 of the Rules of Professional Conduct (RPC) in making his allegations against Judge Olszewski but found no violation in the allegations against Judge Bradley. The Pennsylvania Supreme Court then granted the parties' cross-petitions for review and directed both sides to file briefs addressing the applicability of its more recent decision in Office of Disciplinary Counsel v. Price, 732 A.2d 599 (Pa. 1999). After consideration of the parties' arguments, a unanimous Pennsylvania Supreme Court held that Surrick had violated RPC 8.4(c) with respect to his charges against both Judge Olszewski and Judge Bradley. Surrick I, 749 A.2d at 447-49. The court therefore suspended Surrick's license to practice law in the Commonwealth for a period of five years, effective March 24, 2000. Id. at 449.

Pursuant to Rule II(B)(2) of the Rules of Attorney Conduct (RAC) for the Eastern District of Pennsylvania,*fn4 the District Court, in response to the decision of the Pennsylvania Supreme Court, issued an order on May 10, 2000, requiring Surrick to show cause why reciprocal discipline should not be imposed upon him pursuant to RAC II(D). In his reply, Surrick asserted that reciprocal discipline was inappropriate because the decision of the Pennsylvania Supreme Court lacked proof and violated his rights of procedural due process and free speech. On February 7, 2001, a three judge panel of the District Court, following its review of the state disciplinary proceedings and the arguments of the parties, issued a Report and Recommendation concluding that no reciprocal discipline should be imposed on Surrick. See Surrick II, 2001 WL 120078. This recommendation was rejected by a majority of the non-recused active and senior judges of the Eastern District of Pennsylvania, and the matter was referred to a new three judge panel for consideration of the proper punishment. Following a hearing, this second panel issued an Amended Report and Recommendation on June 12, 2001, concluding that Surrick should be suspended for a period of thirty months retroactive to April 24, 2000.

On June 21, 2001, by a vote of seventeen to nine, the twenty-six non-recused active and senior district judges adopted the second panel's Amended Report and Recommendation. See In re Surrick, No. MISC. 00-086, 2001 WL 1823945 (E.D. Pa. June 21, 2001) ( Surrick III ). Surrick's thirty month suspension was made retroactive to April 24, 2000, the date of his state court suspension. The suspension expired on October 24, 2002.

Surrick appealed his District Court suspension.

II. Jurisdiction and Standard of Review

The District Court has the inherent authority to set requirements for admission to its bar and to discipline attorneys who appear before it. See In re Mitchell, 901 F.2d 1179, 1183 (3d Cir. 1990); In re Abrams, 521 F.2d 1094, 1099 (3d Cir. 1975). We have jurisdiction to review the final order of the District Court pursuant to 28 U.S.C. § 1291. We review district courts' decisions regarding the regulation of attorneys who appear before them for abuse of discretion. Richardson v. Hamilton Int'l Corp., 469 F.2d 1382, 1386 (3d Cir. 1972). Our review of the District Court's interpretation of legal precepts is plenary. Epstein Family Partnership v. Kmart Corp., 13 F.3d 762, 765-66 (3d Cir. 1994).

III. Discussion

A. Mootness

Because " '[t]he existence of a case or controversy is a prerequisite to all federal actions,' " Philadelphia Fed'n of Teachers v. Ridge, 150 F.3d 319, 322-23 (3d Cir. 1998) (quoting Presbytery of N.J. of Orthodox Presbyterian Church v. Florio, 40 F.3d 1454, 1462 (3d Cir. 1994)), we must begin by examining our jurisdiction to consider the matter before us. Although it is well-established that "bar admissions, bar disciplinary actions, and disbarments are essentially judicial in nature and thus present a case or controversy under Article III," In re Calvo, 88 F.3d 962, 965 (11th Cir. 1996), we must determine whether Surrick's appeal was mooted when the term of his District Court suspension expired on October 24, 2002.

As we have previously held, "[a] case will be considered moot, and therefore non-justiciable as involving no case or controversy, if the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." In re Kulp Foundry, Inc., 691 F.2d 1125, 1128 (3d Cir. 1982) (citation and internal quotation omitted). Our analysis of whether a case is moot "traditionally begins with 'the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.' " International Bhd. of Boilermakers v. Kelly, 815 F.2d 912, 914 (3d Cir. 1987) (quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971)).

The existence of a case or controversy, in turn, requires " '(1) a legal controversy that is real and not hypothetical, (2) a legal controversy that affects an individual in a concrete manner so as to provide the factual predicate for reasoned adjudication, and (3) a legal controversy with sufficiently adverse parties so as to sharpen the issues for judicial resolution.' " Id. at 915 (quoting Dow Chem. Co. v. United States Envtl. Protection Agency, 605 F.2d 673, 678 (3d Cir. 1979)).

Furthermore, "[i]n addition to its threshold constitutional dimension, mootness doctrine incorporates prudential considerations as well." International Bhd. of Boilermakers, 815 F.2d at 915. "Thus, in applying the mootness doctrine, courts, in addition to satisfying the requirements of Article III, 'must answer the more policy-oriented question whether the parties before it have, at the time for decision sufficient functional adversity to sharpen the issues for judicial resolution.' " Id. (quoting Dow Chem., 605 F.2d at 677-78). Accordingly, " 'the central question of all mootness problems is whether changes in circumstances that prevailed at the beginning of the litigation have forestalled any occasion for meaningful relief.' " Id. (quoting Jersey Cent. Power & Light Co. v. State of N.J., 772 F.2d 35, 39 (3d Cir. 1985)).

In addressing such questions, we have recognized three exceptions that should be considered prior to any determination of mootness:

(1) whether the appellant has expeditiously taken all steps necessary to perfect the appeal and to preserve the status quo before the dispute becomes moot, (2) whether the trial court's order will have possible collateral consequences, and (3) whether the dispute is ...


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