In Re: Robert B. Surrick

COWEN, Circuit Judges.

OPINION OF THE COURT ROTH, Circuit Judge.

This appeal arises out of reciprocal at- torney disciplinary proceedings in the United States District Court for the East- ern District of Pennsylvania. The Penn- sylvania Supreme Court suspended had appellant Robert Surrick from practice of law period years five after it concluded that he had violated a provision 1. The appreciates Court the fine per- service request, Court's in presenting the brief for formed by Bashman, Howard J. Esq., at the Amicus support Curiae in of affirmance. for the and, filed a motion August Professional Conduct Rules to the des- judges prior recusal of certain judges of lower court accusing two falsely This mo- appellate panel. ignation of independent Following an “fixing” cases. stated, part: in relevant tion proceed- the state review by Movant held that and averred It is believed banc the en District ings, Bradley was “fixed” Judge but warranted Surriek reciprocal Or- Republican County the Delaware suspension of Surrick’s the term limited deal between as a result of a ganization months, imposed by or half thirty Larsen organization Justice argues appeal, Surriek On court. ex- again Larsen would whereby Justice reciprocal discipline imposition on behalf of political influence ert his pro- the state inappropriate because seeking again who was Judge McEwen the District Court which ceedings upon and, court seat Supreme to fill vacant a process of due rights his violated relied return, County Republi- in the Delaware we conclude Because speech. free and through its control of Organization, can its not did abuse the District Court would fix county Judges, the Delaware suspend Surriek in electing discretion this months, af- case. we will thirty of period for a the termi- arising the District Court. of judgment of In out litigation

firm the law Surrick/Levy practice nation of the Background and I. Factual court, superior to the appeal ... Upon History Procedural appeal the dismissed judge Olszewski in the anything rec- on the basis of not underly to Surrick’s facts relevant The by opposing any ord or issue raised from are drawn suspension ing court alleged of an the counsel but on basis Pennsylvania of the opinion the in record. Even defect the procedural and Recommenda Report and the Court rec- of the cursory examination the most initial District by the Court issued tion alleged defect in ord will reflect Disciplinary Counsel panel. See of Office by Judge Olsz- the relied Record 442- Surrick, A.2d Pa. 749 It not exist. not and ewski does did Surrick, (Surrick I); No. the of Movant Surriek (E.D.Pa. belief 00-086, 2001 WL MISC. was based Olszewski Judge of decision II). 2001) (Surriek his Feb.7, and Surriek intervention, as it could not upon outside in Leedom v. Spano, were defendants wife legal rational from have resulted Com No. 89-12977 Case of the Record. analysis County, a case Pleas of Delaware mon of a mort emphasis the foreclosure (ellipses involved and which at 443 749 A.2d By were sureties. they for which gage original).2 lia the issue of

stipulation parties, in- Disciplinary Counsel Office Judge to the court. submitted bility was and, as a vestigated allegations judgment Bradley entered Harry J. him and result, against charges filed July 1992. his wife against Surriek Hearing Committee Special convened due de- After Disciplinary Board. Court, Sur- Superior to the appeal On liberation, Hearing Commit- Special as co-counsel appearance an entered rick in detail facts are these discussed history as Because a well-documented has Surriek Court, see Surriek judi- outspoken critic of 446-49, I, unnecessary we find it appointment A.2d ciary dating back to his repeat them here. Board in 1980. Inquiry and Review Judicial Report and tee issued a Recommenda- practice Surrick’s license to law concluding charges that all tion should Commonwealth period years, for a of five be The Office of Disciplinary dismissed. effective March 2000. Id. at 449. objected Report Counsel to the and Rec- 11(B)(2) Pursuant to Rule of the Rules of sought ommendation and oral argument (RAC) Attorney Conduct for the Eastern Disciplinary before the Board. On Octo- Pennsylvania,4 District of the District 17, 1997, ber the Board an opin- issued Court, in response to the decision of the ion and order rejecting arguments Court, Pennsylvania Supreme issued an asserted of Disciplinary Office 10, 2000, order May on requiring Surrick dismissing Counsel and charges why to show reciprocal cause discipline against Surrick. should not imposed upon him pursuant The Office of Disciplinary Counsel filed 11(D). to RAC reply, his Surrick as- petition for allowance appeal with the serted reciprocal inap- Pennsylvania Supreme Court. The court propriate because the decision of the remanded the case to the Disciplinary Pennsylvania Supreme proof Court lacked April Board on with instructions rights violated his procedural Board reconsider its recom- process speech. 7, and free February On mendation in light of the then-recent deci- 2001, a judge panel three of the District Disciplinary sion Counsel v. Office of Court, following its review of the state A, 223, Attorney 552 Pa. 714 disciplinary proceedings argu- and the (1998). A.2d 402 parties, ments of the Report issued a remand, On the Disciplinary Board de concluding Recommendation recip- that no termined that Surrick had violated Rule rocal imposed should be on Sur- 8.4(c)3 of the Rules of Professional Con II, rick. See Surrick 2001 WL 120078. (RPC) duct in making allegations his This recommendation rejected by a against Judge Olszewski but found no vio majority of the non-recused active and lation in the allegations against Judge senior judges Eastern District of Bradley. The Pennsylvania, and the matter was referred granted Court then parties’ cross-peti ato new three judge panel for consider- tions for review and directed both sides to ation of the proper punishment. Follow- file addressing briefs applicability ing a hearing, this second panel issued an its more recent decision in Disci Office of Amended Report and Recommendation on Price, plinary 166, Counsel v. 557 Pa. 732 12, 2001, June concluding that Surrick (1999). A.2d 599 After consideration of should be suspended for a period thirty parties’ arguments, a unanimous Penn 24, months April retroactive to 2000. sylvania Supreme Court held that Surrick 8.4(c) had violated 21, 2001, with respect to his On June by a vote of seventeen charges against nine, both Judge to twenty-six Olszewski and non-recused active I, Judge Bradley. Surrick 749 A.2d at and senior judges district adopted the sec- 447-49. The court suspended therefore panel’s ond Report Amended and Recom- 8.4(c) 3. RPC professional states that Pennsylvania's "[i]t is Local Rules of Civil Proce- lawyer engage misconduct for a to reference, conduct dure. For Pennsylvania's ease of fraud, involving dishonesty, misrep- deceit or Rules of Professional Conduct will be referred resentation.” "RPC”, throughout Opinion this as and the Attorney Rules of Conduct contained in Local (RAC) 4. The Rules of Conduct are Rule 83.6 bewill referred to as "RAC”. codified in Rule 83.6 of the Eastern District of

229 (11th Surrick, Cir.1996), 962, we deter- 965 must No. MISC. See In re mendation. (E.D.Pa. 00-086, appeal June Surrick’s was mooted WL mine whether 2001 1823945 (Surrick III). 2001) thirty 21, term District when the of his Court sus- 24, made retroactive suspension pension expired on October month 2000, 24, of his court the date April held, previously As we have “[a] expired on suspension The suspension. moot, there case will considered 24, 2002. October nonjusticiable involving fore no case District sus- appealed his Surrick controversy, presented if are no the issues pension. parties legally ‘live’ or the a longer lack in the In re cognizable interest outcome.” and Standard II. Jurisdiction Inc., Foundry, 691 F.2d 1128 Kulp of Review (3d Cir.1982) (citation quota and internal au has inherent The District Court omitted). analysis of whether tion Our for admission thority requirements to set “traditionally begins moot with ‘the case is who discipline attorneys and to its bar III of requirement Article the Constitu Mitchell, it. 901 before See appear judicial tion under which the exercise of (3d Cir.1990); re F.2d 1183 power depends upon existence of (3d Cir.1975). Abrams, 1094, 1099 ’ controversy.” case or International Bhd. final jurisdiction to review the We have Kelly, v. Boilermakers F.2d pursuant to 28 of the District Court order (3d Cir.1987) (quoting North Carolina courts’ § 1291. review district U.S.C. We Rice, 404 U.S. S.Ct. regulation of attor regarding the decisions (1971)). of a L.Ed.2d existence appear them for abuse of neys who before “ ‘(1) turn, controversy, in requires case or v. Int’l Richardson Hamilton discretion. controversy that is real and not legal a (3d Cir.1972). 1382, 1386 469 F.2d Corp., that, (2) controversy a hypothetical, legal inter Our review of the District Court’s in a manner an individual concrete affects legal plenary. Ep is pretation precepts of factual for provide predicate as to so Partnership Corp., v. Family Kmart stein (3) adjudication, legal and con reasoned Cir.1994). (3d 762, 13 F.3d 765-66 sufficiently troversy parties with adverse judicial sharpen the issues for so as to III. Discussion ” Dow (quoting Id. at 915 resolution.’ A. Mootness Protec v. United States Envtl. Chem. Co. “ existence of ‘[t]he Because (3d 673, F.2d Cir. Agency, tion 605 678 prerequisite to all controversy is a case or 1979)). ” actions,’ Philadelphia Fed’n federal of Furthermore, to its 319, “[i]n addition F.3d 322-23 Ridge, v. 150 Teachers dimension, (3d Cir.1998) moot constitutional Presbytery N.J. threshold (quoting of prudential con incorporates Presbyterian Church v. Flo ness doctrine Orthodox of (3d Cir.1994)), Bhd. rio, as well.” International we siderations 40 F.3d 1462 “Thus, Boilermakers, F.2d at 815 by examining jurisdiction our begin must of doctrine, courts, Al the mootness applying the matter before us. to consider satisfying requirements to that “bar ad addition though is well-established III, poli actions, ‘must answer the more missions, and dis- of Article disciplinary bar parties whether the judicial question in nature essentially cy-oriented are barments have, time decision at the for controversy before it present thus a case and adversity sharpen Calvo, functional to III,” re F.3d Article In sufficient under ” statement); judicial resolution.’ Id. for Kirkland v. National Mort issues 677-78). Chem., Network, Inc., 605 F.2d at (quoting Dow gage 884 F.2d Accordingly, question (11th Cir.1989) “‘the central of all (holding attorney’s ap changes is whether problems mootness of peal pro the revocation of his hac vice prevailed begin- at the circumstances status not moot following dismissal of have ning litigation any forestalled underlying case because “the ‘brand of ” meaningful for relief.’ Id. occasion disqualification’ grounds dishonesty on Jersey & (quoting Light Cent. Power Co. v. hang and bad faith could well over his (3d N.J., State Cir. come”); years name for to and career 1985)). Atlanta, Kleiner v. First Nat’l Bank of (11th Cir.1985) (not addressing questions, such we have F.2d 1200 n. 14 exceptions that recognized three should be ing disqualification “the brand of considered to determination of proceedings. not lifted at the close of the mootness: consequent action and dis

(1) appellant expedi- whether has qualification may expose counsel to further tiously steps necessary per- taken all portends sanctions the bar and adverse preserve fect appeal sta- effects public counsel’s careers and quo dispute tus before the becomes image. disqualification The effects of will (2) moot, whether the trial court’s order linger long closing after the of the case. possible will have collateral conse- The controversy thus remains live and de quences, dispute whether the consideration.”). Further, mands Sur- a nature that it is capable such suspension continuing rick’s has a effect on repetition yet evading review. ability practice his before the District Kulp Foundry, 691 F.2d at 1129. Court, VII(A) as provides RAC that attor neys suspended more than three applicability

We need not address the above, apply months must first for reinstatement.5 exceptions and third noted Thus, we conclude that continuing stigma resulting from Surrick’s claim sat his suspension places appeal square- consequences isfies the collateral exception ly Dailey within second. See to the doctrine of mootness and that we Co., (5th 224, Vought 141 jurisdiction F.3d 228 have to consider the merits of Aircraft Cir.1998) (finding that appeal of an appeal. his attorney who and was disbarred then rein- stated was not moot even tempo- because Reciprocal Disciplinary Proceedings B.

rary lawyer’s disbarment is harmful to a starting point for our of reputation, review and “the mere possibility of disciplinary proceed federal district court consequences adverse collateral suffi- is mootness”) ings recognition cient is the preclude finding to of that individual dis (citation courts, courts, quotation omitted); trict “like all and internal federal ha[ve] Hancock, 1083, see the power prescribe also In re both to requirements 192 F.3d (7th Cir.1999) 1084 (citing Dailey for practice for the admission to before that court proposition attorney’s to suspended discipline attorneys” that a and ap- who appear peal Abrams, 1099; was not payment mooted his before them. 521 F.2d at imposed Kramer, subsequent sanction and rein- 1131, see also In re 193 F.3d 1132 living 5. Surrick presently is Florida and return to and to law resume his law, but, practicing not attorney as his stated practice. argument, at may day oral he some decide to

231 (1957)). Instead, they Cir.1999) 1 L.Ed.2d 1342 (9th proposi- for the (citing cases proceeding state must “examine the but that question little is “[t]here tion that consistency requirements with the of due authority super- to courts have district and adequacy proof absence process, attorneys conduct of discipline the vise and imposing discipline indication that them.”)- “This includes before appear who injustice.” In re grave result would suspend or dis- authority to inherent Cir.1994) (2d Jacobs, 84, (citing 44 F.3d 88 is “ex- power lawyers,” provided such bar 46, 51, 37 Selling Radford, U.S. due pro- parameters within the ercised (1917)). More 61 L.Ed. S.Ct. (citations Kramer, at 1132 cess.” Court has specifically, as omitted). quotations internal held, impose recipro- federal courts should pro disciplinary reciprocal A discipline unless “an intrinsic consider- cal here, in the one at issue ceeding such as indicates one of ation of the state record” action court initiates a federal which infirmities: following on the bar based a member of its against procedure, 1. That from want disciplinary proceeding of a state outcome heard, to opportunity of notice or federal attorney, requires against process; 2. that there wanting review of independent to conduct courts to facts infirmity proof was such an as to proceeding prior disciplinary the state the want of found to have established Indeed, it is well- punishment. imposing private professional character fair that, bar member although state settled on give to rise to a clear conviction seeking admission of those ship required part court] [it] of the federal [the district the federal practice to before not, duty, with consistent[] [its] could state, by the “disbarment given courts of a on that the conclusion accept as final disbar in automatic does not result [s]tate grave other subject; or 3. that some Ruffalo, federal court.” ment should convince reason which exist[s] 88 S.Ct. 390 U.S. the nat- that to allow court] federal [the (1968). Rather, although the L.Ed.2d judgment consequences of ural in such matters of state courts decisions conflict with the their effect would have they are “not respect,” are “entitled not duty [the court] which rests binding the federal courts.” conclusively on that, upon the conviction except disbar Id. justice, right and principles under so to do. constrained [it is] However, striking appro “[i]n 377; ... courts must not see Selling, district at 37 S.Ct. priate balance U.S. Theard, If in a vacuum. operate also action, 11(D), proceed- the governed from state court which derive RAC

proceedings below, the basis of ignore enacted on totally ings are not free federal courts Pawlak, 94-211, Abrams, No. ruling. See In re proceedings.” this original state (E.D.Pa. Dec.l, *4 at (citing Theard v. 1995 WL F.2d at 1099-1100 1995).6 States, 278, 77 S.Ct. United Judge, this court 11(D) designated by the Chief provides as follows:

6. RAC discipline unless impose the identical shall days Upon expiration of 30 from D. demonstrates, or respondent-attorney pursuant to the issued service of the notice finds, upon the face of (B) this court oppor- provisions above and after prohi- discipline upon or record which contesting impo- any attorney tunity for predicated jurisdiction is in another discipline prohibi- bition or of the identical sition appears: clearly it judges by one or more tion to be heard Moreover, attorneys subject may to re tion to the extent circumscribed ciprocal discipline federal court bear the depends or in part whole on a demonstrating, “by clear and actions, burden state’s either for the commence- evidence, convincing that one of the Sell ment of the disciplinary proceedings or ing precludes reciprocal elements disci for a stated basis in the determination of Kramer, pline.” In re 282 F.3d 724- imposed. sanction (9th Cir.2002) cases). Thus, (citing It against Id. backdrop this that we there is no entitlement to a de trial novo consider the proceedings at issue here. before the District Court. See In re Alk C. Surrick’s Due er, (3d Process and First Cir.1962); see Arguments Amendment Calvo, Rather, also 88 F.3d at 967. only District Court need “determine The issue before appeal us on this underlying predi

whether the record is whether the en banc District Court cate state disbarment reveals the kind of abused its in relying discretion on the ” Calvo, Selling. infirmities identified in 88 state court proceedings as the basis for its (citation quota F.3d at 967 and internal impose reciprocal decision to omitted). tions upon rejecting Surrick. the conclusion Abrams, Finally, as we noted in “we of the initial panel and adopting the perceive our role in reviewing the district Report Recommendation, Amended extremely court’s action to be limited.” the District Court noted that it was re particular, F.2d at 1101. In it consists quired to impose reciprocal discipline “un of the following: ‘clearly’ less it appeared to the court” that

(1) recognize To and reinforce an abso- at least one of the four elements of RAC 11(D) lute power III, and unfettered of the district was satisfied. Surrick 2001 WL court to admit and to discipline mem- 1823945 *1.

bers of independently its bar of and Following its review of the state disci- separately from admission and disciplin- plinary proceedings, the District Court de- (a) ary procedures of the state courts 11(D) termined that none of the RAC con- (b) this court. ditions were met in this case. In support ^ conclusion, of this the District Court noted (3) (1) To recognize that an absolute and not even the first District Court power unfettered panel, the district court to opposed which imposition of re- discipline lawyers may be ciprocal circumscribed discipline, concluded that the state court, to the extent the district in impos- disciplinary proceedings violated Surrick’s ing sanctions, its disciplinary relies right process; there was no legal state’s or factual infirmity determinations. of proof, particularly in view of otherwise, Stated the district ac- court’s the fact that Surrick during admitted procedure 1. that the lacking was so imposition 3. of the same disci- pline opportunity prohibition by notice or or to be heard as to this court would grave injustice; result in deprivation constitute a or process; of due that the misconduct or other basis discipline prohibi- established for the or that infirmity there was such of by tion is deemed this court to warrant proof give toas rise to the clear convic- substantially different action. not, tion that this court could consistent Where this court that determines of duty, accept with its as final the conclu- exist, said elements it shall enter such other subject; sion on that order appropriate. as it deems

233 1993) that, attorney (holding “[although “that he had proceedings disciplinary state proceedings have been called discipline for the accusa objective factual basis no ‘quasi-criminal,’ Ruffalo, the In re in affidavit to made his sworn tions he 1222, 1226, 20 L.Ed.2d con corrupt purportedly court about state (1968), process 117 due of an rights the the judge”; a state by duct Recommendation, attorney disciplinary proceeding in a ‘do is Report and Amended full panel, guarantee not extend so far as to the District Court sued the second rights afforded to an accused in panoply fact that the five of into account the took ”) (quoting state a criminal case.’ Razatos v. Col meted out year suspension Court, 1429, F.2d comparable Supreme orado that of other court exceeded (10th Cir.1984)); Rosenthal v. Justices cases, a sus and therefore recommended of Cal., Supreme that duration. Sur Court 910 F.2d only half pension Cir.1990) (9th III; (holding lawyer that “[a] at *1. rick 2001WL proceeding is not a criminal disciplinary asserting that the District Court In result, protec As a normal proceeding. concluding, by so abused its discretion tions afforded a criminal defendant do not that the District contends first Surrick (citations omitted). apply.”) failing process in to find a due erred mind, background in we con- Pennsylvania Supreme in With this violation In Anony- process argument. sider Surrick’s due application retroactive A, Price to his case. Attorney A and of mous that, although held it had Supreme Court argues He next that the District Court’s expressly decided the issue of the men- evidentiary hear- not conclusion that a second necessary culpability im- on an tal state establish would be futile was based ing made in violation of Report for misstatements reading panel’s of the initial proper 8.4(c), it follow the lead of Finally, would Recommendation. Surrick with identical versions of the reciprocal other states imposition asserts rejected requirement a rule that had violates his First Amendment 714 A.2d at 406-07. grave knowledge. actual and therefore constitutes rights Court, in Thus, Pennsylvania Supreme argument each injustice. We address in other existing accordance with decisions turn. mental jurisdictions, culpable held that “a pro considering In necessary negligence than is greater by reiterating our argument, begin we cess prima violation of to establish facie that, although attorney prior observation 8.4(c),” requirement and that [RPC] “[t]his proceedings conse “ha[ve] misrepresentation is met where the which remove from quences [them] made, it is made with knowingly or where case[s],” “not they run of civil are ordinary falsity truth or ignorance of the reckless Abrams, 521 F.2d criminal nature.” asserts Id. at 407. Surrick now thereof.” protec follows that the 1099. It therefore failing District Court erred normally afforded criminal defen tions conclude that required are not here. See dants this rul- application of Court’s retroactive (7th Cir.1995) Palmisano, 70 F.3d a violation of due ing to his case was Court’s decision (noting imposition of precluded process em require not courts to “does Buffalo reciprocal discipline. law in of the criminal ploy procedures It is well-settled matters”); disagree. re We Cordova0 disbarment (1st law of a common -Gonzalez, judicial “that a alteration Cir. 234 —8.4(c) princi

doctrine of criminal law violates the prohibited misconduct by RPC ple warning, of fair hence must not be included statements made with reckless effect, given only retroactive See, where is disregard for e.g., the truth. Berda v. ‘unexpected by Inc., (3d Cir.1989) indefensible reference 20, CBS 27 expressed to which had prior the law been (noting that reckless are statements suffi- ” Rogers to the conduct in issue.’ v. Ten cient to maintain a claim for misrepresen- nessee, 451, 462, 1693, 532 121 U.S. S.Ct. law); tation under Highmont (2001) 149 697 (quoting L.Ed.2d Bouie v. Co., Corp. Music v. J.M. 397 Hoffmann Columbia, City 84 345, 363, Pa. 155 A.2d 366 (holding 1697, (1964)).7 12 S.Ct. L.Ed.2d 894 Al that “[a] material misrepresentation may though Surrick contends that “no one be found whether actually [Defendant] could reasonably anticipated” have the le not, where, knew the truth or especially as gal applied standards by his case here, it was bound to ascertain the truth Court, Pennsylvania Supreme a cur even before making representation.”). sory review of the state of the law the reject We therefore Surrick’s contention time of the in question conduct reveals A, Anonymous Attorney Indeed, otherwise. while it is true that 8.4(c) nothing history in the of RPC had Pennsylvania Supreme Court had not stated or even foreshadowed that reckless formally addressed the issue prior to its Indeed, conduct could violate it. in view of A, in Anonymous Attorney decision it was the foregoing, nevertheless well-settled at the time of Court’s decision in Anonymous Attorney conduct that liability under the A was “unexpected” neither nor “indefen- 1-102(A)(4), of DR standards prede sible reference to the law which had 8.4(c), cessor to RPC extended to reckless been expressed prior to the in conduct Comm, misstatements. See ABA Eth on Rogers, 462, issue.” 532 U.S. at ics and Professional Responsibility, For 1693. This is perhaps best illustrated (Revised) Op. (1982); mal 346 see also the fact that the Pennsylvania Supreme Rader, (Colo. People 950, 822 P.2d 953 Court remanded Attorney A’s ap- case for 1992); Legal Committee on Ethics plication of the purportedly new standard Farber, 522, W.V. State Bar v. 185 W.Va. that, despite here, the fact the conduct 274, 408 (1991); S.E.2d 284-85 Dowling v. plainly at issue occurred prior to its ruling Bar, 149, Alabama State 539 So.2d A, that case. See (Ala.1989); Silverman, 193, 113 N.J. Thus, 714 A.2d at 407. we hold that the (1988); 549 A.2d In re Zang, District Court did not err in concluding (1987); Ariz. 741 P.2d application ruling in Anony- Committee on Ethics and Professional mous Attorney A to Surrick’s case was Conduct the Iowa State Bar Ass’n v. consistent with the requirements of due Hurd, (Iowa 1985). 360 N.W.2d process. Further, it was well-established in Penn sylvania at that time that the term “mis Similarly, we conclude that — representation” one of the types of District Court did not err rejecting Sur- 7. The ruling Rogers, by torney Thus, its proceedings. it nec- terms, applies only proceedings. to criminal essarily attorneys follows that involved in dis- However, we refusing see no ciplinary basis for proceedings are not entitled to noted, apply the same greater rationale here. As we protection appli- from the retroactive supra, panoply the full rights provided judicial rulings cation of than that afforded to proceedings criminal required are not in at- criminal defendants. in allegations plead- for contained the al basis” regarding argument process due rick’s to the courts of the Com- ings case of the submitted to his application in Price. Sur- Id. decision monwealth. Supreme Court’s in Price decision that the

riek contends Indeed, justices differed although the as that is proof burden of a new established Penn- punishment, the the appropriate to — design in because both unconstitutional in Supreme was unanimous sylvania presumption violates purportedly rul- purportedly new application its — as entitled he is innocence to which that, despite the fact ing to Price himself case. Howev- to his retroactively applied case, record in Price had as in this to note that er, was careful the Price court developed prior to the been by a misconduct proving the burden articulation of express Court’s rests, as it of the evidence preponderance production. See id. at 604- this burden of Disciplinary has, the Office of always with OS.8 Price, A.2d at 603. See Counsel. — that argument next fact clear the simply in Price made ruling in Court abused its discretion the District of false alle- that, a facie case prima once evidentiary hear concluding that a second estab- has been pleading in a court gations — closely futile related. ing would be lished, respondent burden shifts to that, in view of the Specifically, are he asserts allegations “that the demonstrate to requisite mental objective changes reasonable purported or that he had true true, based allegations proof were burden of that resulted belief that state and Id. at reasonably diligent inquiry.” Pennsylvania Supreme upon from the Attorney A and 604. decisions Price, provided he should have been way was in no holding in Price This he hearing at which evidentiary second by reference or “indefensible “unexpected” the issues raised could have addressed prior expressed been the law which had However, despite having these decisions. issue,” Rogers, the conduct in Price ruling advance notice that already it was 462, 121 S.Ct. case, never to his Surriek might applied decision in to the “well-established” evidentiary hearing or either an requested contain- pleading court every Price “that during the of the record reopening of record is of fact not ing an averment Thus, any process proceedings. is true state that the assertion required to have resulted from might violation knowl- personal pleader’s based hearing was to hold a second failure belief,” and that such information or edge, Olano, 507 United States waived. See supported by oath averments must “be 123 L.Ed.2d U.S. to certain subject” made affirmation or “ procedural (holding ‘[n]o Thus, Price, at 603. 732 A.2d penalties. ... than that a familiar is more principle allegations made the at the time Surriek any other right or a motion, right,’ constitutional Pennsyl- in the recusal contained sort, as well in criminal ‘may be forfeited attorneys to already required vania law timely to make by the failure a factu- as civil cases establishing the burden “bear[ ] II, (holding at *14 2001 WL 120078 Surriek Surriek asserts that To the extent that Price, questioning the ground which involved see no "[w]e decision 8.2(b), 3.3(a)(1) applied may not be judgment and RPC [Pennsylvania Court's] 8.4(c), reject we this of RPC properly his violation regime was procedural that the Price District Court argument. Not even the first 8.4(c) proceedings.”). transferable to RPC See panel for this claim. found basis right assertion the of before a original tribunal the three panel member which ”) jurisdiction having to determine it.’ recommended that reciprocal no discipline United, — States, (quoting Yakus imposed concluded that the state 660, (1944)). 88 L.Ed. 834 disciplinary proceedings failed to satisfy process minimal due requirements. See Further, even if this claim had not III, (“The Surrick 1823945, 2001 WL *1at waived, been Surrick has failed to identify court determined that there was no clear any presented evidence not in the first deprivation process of due of law. Signifi- hearing that have led would to a conclusion cantly, while critical of approach of the that he had objectively reasonable basis Pennsylvania Supreme Court, Judge even allegations for the in contained his recusal Poliak, the panel author of report of Indeed, motion. despite his claim that he February 7,-2001, acknowledged that the production bore no prior burden of to the report had not concluded that Mr. Surrick Price, in ruling voluntarily Surrick offered deprived of his federal constitutional testimony extensive during the three-day right process.”). to due proceedings regarding purported his bases for the statements contained We further note recusal that Surrick’s reliance this, motion. light In of it is misplaced. difficult to In Ruffalo, an Ruffalo imagine that he could or would charge have additional come of misconduct was forward with additional brought against information if attorney in question provided opportunity following do so in the completion of his testimony addition, second hearing. the state disciplinary both Dis proceedings. See ciplinary Board and the District Court U.S. 88 S.Ct. 1222. That 546— found, based testimony on the new charge and evi served as the sole basis for the record, dence already in the Sixth that Surrick’s Circuit Court of Appeals’ decision to impose statements were unsupported. reciprocal See Sur discipline. Id. The Su- III, (“Mr. rick preme 2001 WL at *1 Court reversed judgment of the Surrick admitted at court disciplinary pro appeals, state concluding that the addi- ceedings that objective he had no tion charge factual new at that stage of the basis for the accusations he state court made his proceedings violated Ruffalo’s sworn right affidavit to the process, state court about due thereby making the purportedly corrupt imposition conduct aby reciprocal discipline inappro- judge.”); Report priate. 550-551, Id. at Recommendations of S.Ct. 1222. the Disciplinary Bd. of Supreme Contrary contention, to Surrick’s we of Pennsylvania at 29-30 (noting Surrick’s conclude that admission charges against leveled Court’s application of its rulings in Anony Judge conjecture Olszewski were based on mous Attorney A and Price did not and theory). In view of the foregoing, we amount to a new charge, and therefore is simply cannot conclude that the District not functionally equivalent to the actions Court abused its discretion in electing to held violative of process in Ruffalo. impose reciprocal discipline despite the ab Committee on 'l Ethics and Griev Cf. Prof sence of a second state court hearing, par ances the Virgin Bar Islands Ass’n v. ticularly hearing when such a was never Johnson, (3d 172-74 Cir. requested by Surrick the first instance. 1971) (applying to situation in Ruffalo Moreover, we note with respect to each which disciplinary charges were amended of Surrick’s first two arguments that no based on the testimony of the attorney in — member of the District Court including question); see also In Slattery, re 767 A.2d brief, (D.C.2001) have the record and that “we we reviewed (noting 210-11 find no of discretion. holding that due abuse understood Ruffalo the bar asso- was violated because process Finally, question we note that Ruffalo notice give failed to ciation imposition whether the of either state or to, in amount that his conduct would appropri- reciprocal federal Court, a ‘disbar- words ate under the circumstances of this case is offense,’ consequence that ment with the jurists clearly one over which reasonable admitting into that he trapped Ruffalo was However, may disagree. conceding even violation.... disciplinary committed a had argu- that we would view some of Surrick’s premise on the that rests Ruffalo if presenting ments as close issues called charges imper- created an amendment of instance, in upon to examine them the first since, at the time of trap missible difficulty concluding we have no attorney could not have proceedings, en banc did not abuse its District Court he would that the defense asserted known reciprocal discipline. in imposing discretion disbarment”) (citations and subject him to omitted). quotations internal IV. Conclusion For the reasons stated above we will Thus, the District we hold that the District judgment affirm the of Court. that the state concluding not err in did with proceedings complied disciplinary COWEN, Judge, dissenting. Circuit requirements. As a process minimal due majority’s framing I with the agree it not abuse its discretion consequence, did presented appeal: on this question reciprocal discipline as re- imposing the District Court abused its whether a rules in the absence of quired its local 11(D). by relying discretion on the decision violation. See RAC process due Pennsylvania Supreme Court to im- I reciprocal discipline. further pose not address the merits of We need — jurisdiction that have to con- argument agree we third and final Surrick’s and concur with the appeal, violates his First sider this ruling the state court’s majority’s review of Surrick’s belated consti rights Amendment and therefore However, I challenge. injustice to First Amendment grave pursuant RAC tutes —11(D) majority’s analy- with the part company adequately as he failed to raise concerns raised sis of the Due Process the District See Brenner v. before Court. District countenance Carpenters Court’s Local United Bhd. of (3d Am., proof and burden the mental standard 927 F.2d Joiners of Cir.1991). Further, to Common- ultimately applied Surrick’s to the extent Sur charge. The Penn- may challenge read wealth reply rick’s brief to expansion of sylvania Supreme Court’s finding of waiver with the District Court’s Pennsylvania Rules of Professional argument Amendment respect to the First below, reckless misstate- prohibit to asserted we conclude Conduct that was clearly under the unexpected was identify argue or this issue ments his failure law of the Commonwealth. expressed waiver of this opening his brief constitutes Likewise, appeal. on Kost v. Kozak argument See (3d Cir.1993).

iewicz, proof sufficient to changes to the ma- Moreover, attorney misrepresentations objection if establish even Surrick’s evidentiary burdens terially altered the finding of waiver had the District Court’s hearing. The retroac- opening in his used properly presented been newly procedure, of both crafted application tive where the state “from want of impinged guarantees heard, standards opportunity notice or to be 2) applicable Due Process to Surrick’s wanting process”; where there hearing, presented grave reason infirmity was such an of proof give “as to reject the Commonwealth’s decision. rise to a clear conviction” that the state’s flaws, final; Given these the use of the Com- judgment accepted cannot be as 3) discipline monwealth’s basis for grave where some other reason exists to reciprocal federal unwar- reject the decision of state court. Sell ranted, and an abuse of the District ing Radford, Accordingly, I (1917); Court’s discretion. re- 61 L.Ed. 585 see also R. of (codified spectfully majority’s dissent from the Attorney Conduct II.D at R. of 83.6). reasoning and its decision. Civ. P. for the E.D. Pa. This Court must examine the Commonwealth disci I. plinary proceedings to determine whether demonstrated, by Surrick has clear and majority, begin by noting Like the I this evidence, convincing that one of these fac extremely limited role in reviewing departure tors warranted a pre from the disciplinary decisions of the District sumptive imposition of federal discipline. Abrams, 1094, Court. In F.2d re 521 1101 Kramer, 721, (9th In re 282 F.3d 724-25 (3d Cir.1975). Court, The District like all Cir.2002); (2d Jacobs, 84, In re 44 F.3d 88 courts, enjoys power federal a broad Cir.1994); Rosenthal, 1187, In re regulate attorneys. admitted (9th Cir.1988). 1188 634, 643, In re Snyder, 472 U.S. 105 S.Ct. (1985). 2874, However, 86 L.Ed.2d 504 II.

the District Court’s “absolute and unfet tered” disciplinary authority “may be cir Like the I majority, apply also Rogers v. court, cumscribed to the extent the district Tennessee, 451, 1693, 532 U.S. 121 S.Ct. sanctions, in imposing disciplinary its re 149 L.Ed.2d 697 in evaluating lied legal state’s or factual determi whether Pennsylvania Supreme Abrams, nations.” re In 521 F.2d at 1101. Court’s retroactive decisions satisfied fed “[wjhile recognizes This limitation eral Due Attorney Process. disciplinary lawyer is admitted into a federal court hearings “are adversary proceedings of a court, way of a state he not automatical quasi-criminal Ruffalo, nature.” In re 390 ly sent out of the federal court 551, 1222; Abrams, U.S. at 88 S.Ct. In re States, same route.” Theard v. United 354 521 F.2d at 1099. Although attorneys are 1274, U.S. 77 1 S.Ct. L.Ed.2d not panoply entitled to the full protec (1957). Thus, disciplin while a state tions defendants, afforded to criminal they ary decision “is respect, entitled to it is not are “entitled to procedural process, conclusively binding on the federal courts.” which includes fair notice charge.” of the 544, In re Ruffalo, 547, 88 S.Ct. 550, In re Ruffalo, 390 U.S. at 88 S.Ct. 1222, (1968); Theard, 20 L.Ed.2d 117 Comm, 1222; on 'l Ethics and Griev Prof 282, 1274; Abrams, U.S. at Johnson, ances V.I. Bar Ass’n v. 521 F.2d at 1099-1100. (3d Cir.1971). 169, F.2d proce These The Court has outlined three dural safeguards ensure that the nature of areas of constitutional concern where a allegation the state’s is known before the federal court give should not controlling commencement of a hearing so weight 1) to a state disciplinary decision: attorney the accused might meet the Ruffalo, 390 representation.” plain of misconduct. re charges language of 8.4(c) does not 551, specify a relevant at 88 S.Ct. 1222. U.S. mind, state of and the accompa comments These same concerns are reflected nying the rule are similarly silent.1 At the Rogers Court’s decision time of Surrick’s action in no decision Tennessee, which limited the retroactive Supreme Court had judicial application of alterations of com interpreted the mental required Rogers mon law criminal doctrines. holds sanctions under the rule. Disci Office of interpre that while courts have substantial plinary Counsel v. leeway, the Due Process clause limits tive A, 552 Pa. 714 A.2d 405-06 “unjustified unpredictable breaks with (1998). protect against law” to “vindictive or 8.4(c) Citing the text of RPC and the arbitrary judicial lawmaking.” Id. 532 authorities, interpretive absence at 121 S.Ct. 1693. These con U.S. Special Hearing Committee of the Disci- heightened highly charged in the cerns are plinary Board this case concluded that attorney disciplinary hearings, context of only knowingly false statements violate the personal, where “sensitive institutional and App. rule. Special 160. The Commit- “jural converge societal interests” into a tee explained “did not fraught environment that is with tension adopt language of the Model Rules and devoid of decisional and precedential objective which contained a more ‘knew or Abrams, In re at guideposts.” should have known’ standard.” App. at Therefore, judicial 1100. alteration of a distinction, 160. this Given the use of an professional may rule of conduct not objective recklessness standard would applied retroactively “where it is ‘unex “disregard[] plain language the pected by and indefensible reference to the promulgated Rule as in this Common- expressed prior law which had been to the wealth.” at App. Special 162. The Com- ” Rogers, conduct at issue.’ U.S. mittee concluded that because there was (quoting City 121 S.Ct. 1693 Bouie v. “no presented evidence whatsoever that Columbia, Mr. knew Surrick that the accusations (1964)). 1697, 12 L.Ed.2d 894 false,” made were no violation RPC 8.4(c) was App. established.2 at 162-63.

III. Disciplinary adopted The Board these Against background, this I the consider explained conclusions. The Board that application retroactive of the recklessness “negligent or not careless conduct was suf- standard misstatements. ficient to constitute a violation of Rule Pennsylvania Rule of Professional 8.4(c).” Conduct App. Significantly, at 183. 8.4(c) professional states that mis- “[i]t holding Board based this on its then recent lawyer engage conduct for a in conduct Disciplinary decision Counsel Office of 1997) fraud, Rebert, involving dishonesty, or mis- (April deceit v. No. 28 D.B. 95 102(A)(4), Disciplinary precursor App. Although Special Rule tions. at 163. 1. 1— 8.4(c), to RPC also lacked a mental standard. Committee's statement that "we cannot con- Anonymous Disciplinary Counsel clude that he ... did not have a reasonable Office of A, Attorney Pa. 404-05 714 A.2d basis to make the that he did” [] assertions (1998). & n. 7 unnecessary given interpretation its 8.4(c), analysis at the RPC its of the evidence Despite ruling, Special this Committee hearing is nonetheless notable. opine went on to failed to evidence allega- show Surrick was unreasonable his an merely attorney’s by found no misconduct for failure to abide which also mistaken, intentional, misrep- than rather terms of an informal admonition. In ex- Disciplinary sanction, The Board’s change resentations.3 for an informal the attor- significant Rebert is because ney agreed reliance on twice to return a client’s file. decision, recaptioned Despite these representations to the Disci- A, Attorney Pennsyl- reversed Board, plinary attorney failed to re- Supreme vania Court while Surrick’s case materials, leading turn the to an additional discuss, I appeal. was on As shall charge his false statement. reliance on Disciplinary Board’s Rebert to Disciplinary The Board held that while exonerate Surriek reveals that the Com- 8.4(c) RPC not attach indepen- “does au- designated disciplinary monwealth’s requirement,” dent state of mind the com- thority anticipate did not the standard that meaning “misrepresentation” mon in- in Anonymous would be announced Attor- cludes “an not in assertion accordance with facts, ney A. I thus turn to the reasoning, Anonymous, facts.” In re 26 Pa. D. & holding of that decision. 4th (quoting C. at 436 Black’s Law Dictio- (5th ed.1979)). nary 903 Based on this Pennsylvania Supreme began Court definition, Disciplinary Board conclud- opinion Anonymous its A attorney’s negligent misrepre- ed noting that no decision of either the sentation to the Board was “an assertion Disciplinary Court or the Board facts,” not in accordance with the and a requirement had examined the of intent 8.4(c). violation of Pennsyl- Id. The 8.4(c). explained under RPC The Court vania viewed egre- “the an earlier case while did address at giousness of Anony- the facts torney misrepresentations under DR 1- mous” as the basis for the discipline. (the 102(A)(4) predecessor rule to RPC Anonymous Attorney 714 A.2d at 405. 8.4(c)), the case did not “address A the men facts, severity Given the the Court culpability tal standard an attorney’s concluded “that this prec- decision is of no alleged misrepresentations which Petition edential regarding judi- value the issue sub er must meet in order to establish a viola ce.” Id. at 405-06. A, Anonymous tion. ...” Attorney 714 (discussing A.2d at 405 Disciplin The Pennsylvania Supreme Office of Court thus Geisler, ary Counsel v. 532 Pa. 614 found no explaining authorities the mental (1992)). A.2d 1134 The Court concluded 8.4(c), required state under “giv- RPC and “Geisler focused on because the disci en the absence of in precedent Pennsylva- pline imposed to be ... rather than ... issue,” nia proceeded on the to canvass the culpability, mental that opinion of limit jurisdictions. case law from other Id. at ed value in resolving question the present 406. reviewing After the decisions of four ly before us.” Id. states, other Supreme adopted the Court the interpretation

The Court then Anony analogous turned to In re Colorado’s mous, 427, disciplinary 126 D.B. rule and Pa. D. & 4th held “no actual C. (1995), knowledge WL 864102 or intent to “[t]he sole Disci deceive” is neces- 8.4(c). plinary sary Board decision to addressing prove a violation of men RPC 8.4(c) culpability Instead, tal standard” under Id. at RPC 407. misconduct is estab- 1-102(A)(4). or DR recklessness, Id. In Anonymous re lished “the deliberate involved a charge arising out closing eyes of one’s to facts that one had a unpublished 3. The Disciplin- decision of the www.courts.state.pa.us/OpPosting/discipIin- ary Board http:// in Rebert is aryboard/dboardopinions/28DB95.0P.pdf. available at A things Attorney governed as fact of which mous duty to see or state Surrick’s con- years Id. The conclud- duct some ignorant.” eight one was Court before the decision. finding the thin holding reasoning, original ed that this “clarifies” Given this the Dis- trict panel in Id. Court to review Surrick’s Geisler. case understandably found it “hard to escape Attorney A three Anonymous reveals Anonymous the conclusion” that Attorney Pennsylvania the state of regarding facts A decided an issue of impression. first 8.4(c) 1) the text of prior law 1998: RPC at App. 82. require- not contain a state of mind does 2) ment; Pennsyl- prior majority the decision the The labors to bolster the Su- n — in preme analysis vania Geisler the Court’s scant in an attempt only Supreme argue given Court decision to even con- “the state of the law” in attorney misrepresentations sider under reasonably Surrick should have 102(A)(4) 8.4(c)-did DR not im- anticipated Anonymous RPC the decision in At- 1— 3) First, requirement; torney of mind A. pose majority and the finds “well- Disciplinary decision of the settled” that reckless conduct satisfied DR 1-102(A)(4), 8.4(c). Anonymous prece- predecessor Board had “no to RPC assertion, however, regarding dential value” the state of mind This any lacks citation requirement. Pennsylvania These facts reveal a com- law. Nor could cita- included, plete Pennsylvania authority lack of on the tion given “the absence of 8.4(c), meaning explain precedent on the issue.” A, Court’s examination of cases out- 714 A.2d at 406. Instead, majority opinion side Commonwealth. cites to an Bar interpreting American Association Pennsylvania Supreme 1-102(A)(4). DR Model But as stated opinion Disciplinary Counsel Office Committee, Special did Surrick, Pa. 749 A.2d adopt language not of the ABA Model conclusions, essentially accepts these 8.4(c), Rule in promulgating RPC and look- acknowledges that no case addressed the ing objec- to the ABA’s of a interpretations 8.4(c) mental standard of RPC before “disregard! tive standard plain ] would A Anonymous Attorney Id. language promulgated of the Rule as Nonetheless, Pennsylvania Supreme App. this Commonwealth.” at 162. glass rea- half-empty, Court viewed soning that had precedent majority “[n]o because The then offers six state court only opinions declared intentional the interpreting conduct would vi- rules rule, attorneys jurisdictions olate” the have as- of their individual to extend must degree sumed that some lesser of conduct to reckless misstatements. That fact states, at 445. that might sup- prove only forty-four be actionable. Id. To seems to nation, port Supreme three-quarters this conclusion the or more than of the Geisler, in pointed to the outcome the case had not extended their rules to include Thus, previously offering survey that it as reckless conduct. while this characterized issue, requiring might “general “limited value” to this indeed some state of prove law,” “guidance” by majority’s the offered law. the it not the support Colorado does Thus, Id. at 444. with no more than a conclusion that recklessness was a well- importantly, the unsupported citation to Geisler and the settled standard. More majority accompany that cita- statement the recklessness standard does not these unforeseeable, that Pennsylvania any principle was not the tions with of law re- Anony- quires attorneys to their behavior Supreme Court determined that conform jurisdiction, Pennsylvania, through rules of their monwealth of its only to the not court, highest suspend in all others. in Mr. promulgated but to those practice Surrick from the of law for five Next, majority offers several deci- years because of taken at a actions misrepresentations that are holding sions time-nearly eight years before the if made actionable as torts court’s deeision-when there was an ‘ab- for the truth. disregard with a reckless precedent Pennsylvania’ sence of Inc., See, CBS, e.g., Berda v. F.2d his actions were sanctionable. (3d Cir.1989) (discussing tort claims App. appeal 82. Our focus on this is negligent misrepresentation). fraud and application Anonymous At- whether the majority this Court has agrees, But as the A torney unexpected was or indefensible already disciplinary proceeding held that a prior Pennsylva- reference law. The which it from consequences “has remove nia interpretation Court’s run of civil case.” ordinary not, therefore, Commonwealth law does Abrams, Using F.2d at 1099. a com- our independent substitute for own Due expand meaning mon law doctrine to analysis. Process generally prohibited a criminal statute is Pennsylvania. Pa. Cons.Stat. Ann. majority’s reasoning sup- does not 2003) 1928(b)(1) (West (stating pe- § port the conclusion that the recklessness construed). strictly provisions nal shall be Anonymous Attorney A standard of required for the Strict construction is also fundamentally, foreseeable. More howev- Id. interpretation of retroactive laws. er, unhelpful general to examine the 1928(b)(2). § The civil laws cited jurisdictions, “state of the law” in other majority justify Pennsylvania Su- areas, in other substantive instead of the preme application Court’s retroactive of a law of regarding attorney little, if disciplinary ruling any, new have misrepresentations. It is clear from application quasi-criminal pro- to such a Anonymous Attorney A that no law ceeding. 8.4(c). explained application of RPC It is clear from the Special record that the

Finally, majority Pennsyl- views the Hearing Committee and the full Disciplin- vania decision to remand 8.4(c) ary Board both believed that RPC A case objectively did not embrace reckless mis- evidence that the recklessness standard statements. And it is clear from Disci- not new law. The correctness of the Rebert, plinary Board’s citation to very Supreme Court’s decision to remand that case that would later announce the reck- case, in light Disciplinary Board’s standard, lessness not Board did understanding only intentional mis- anticipate the Pennsylvania Supreme 8.4(c) representations satisfied RPC Court’s decision. Given the text requirements 1 Pa. Ann. Cons.Stat. 8.4(c), and the absence of interpretive 1928(b)(2), § is not Court. before this As authority, it is not surprising that even the succinctly by stated the District Court professional experience and institutional panel, Pennsylvania Supreme Court’s learning of Pennsylvania’s highest disci- A, in Anonymous Attorney decision inas authority plinary was insufficient to pre- Surrick, “settles the issue as a matter dict the Court’s decision. Pennsylvania App. law.” at 82. reasons, But it does not settle for court the this For these I am left with the federal process question whether it same conclusion as the District Court pan- was fundamentally unfair for the Anonymous Attorney A Com- el: a announced misconduct, edge by satisfactory clear and evidence. attorney new standard from the text of App. Anonymous Attorney not obvious at 178. A one that was 8.4(c), deci- by prior foreshadowed requirements by RPC the first of these changed sions, by the state of suggested or even adding objective recklessness standard. law. The better Pennsylvania disciplinary Thus, formulation, under the new the Of- is the one offered of that decision reading Disciplinary prove fice of Counsel could itself: Supreme Court by actually Surrick knew his statements were drawn from a professional a new standard false, or that he made the statements with decision. The Supreme Court Colorado ignorance of the facts. reckless 8.4(c) is, alter RPC without decision to Disciplinary v. Counsel Price to the Office of question, entrusted changed requirement. the second then dispute It not ours to Supreme Court. is Price, Pennsylvania Supreme decision, application that or its retroactive proving affirmed that “the burden of mis- is, It howev- misstatements. Surrick’s Disciplinary conduct lies with the Office of er, to determine the role of this Court Counsel,” that misconduct grave reason exists to re- must be shown whether some evidence,” ject “by District reliance on those of the preponderance and The recklessness standard judgments. proof of the misconduct must be clear unexpected A Price, satisfactory. A.2d at 603. under the law and indefensible every The Court then noted that Relying on the retro- conduct. pleading fact asserted in a court must be holding to im- of that application active on pleader’s personal based either federal pose reciprocal knowledge, reasonably of a the results erroneous. clearly diligent inquiry. Synthesizing Id. these Price held that the Office of requirements,

IV. may Disciplinary satisfy Counsel its bur- my conclusion support concerns Similar alleged prove simply den to misconduct of the bur application that the retroactive by demonstrating that the statements at den-shifting framework announced Of 604. After issue were false. Id. at this Price, Disciplinary Counsel then showing, “[t]he fice of initial burden shifts 166, 732 A.2d 599 constitutes a Pa. respondent allega- to establish that the from the grave depart reason to Common objective or that he had an tions are true begin by outlining I wealth’s sanctions. allegations belief that the were reasonable 8.4(c) the elements of RPC and the bur true, reasonably diligent in- based proof Disciplinary den of applied quiry.” Id. explained hearing. Board at Surrick’s As majority views this second altera- The Committee, Hearing Special unexceptional given that the bur- tion 8.4(c) Disciplinary required the Office proof on the Office of Disci- den of remains knew his prove Counsel to that Surrick Counsel, the relevant plinary (“The at 163 allegations App. were false. remains clear and quantum of evidence case, was to inquiry, focus of the this however, explanation, This satisfactory. mind in making Mr. Surrick’s state of does not consider that what Office allegations and not to the ultimate these attorney’s no prove longer must falsity allegations.”). truth or objective subjective knowledge, or the un- Disciplinary explained Board further attorney’s of the belief. reasonableness Disciplinary Counsel must Office Instead, only prove the subjective the Office need prove actual knowl- statement, falsity objective after That duty is unquestionably established attorney carries the burden Pa. R. which to Civ. P. 10234 and and Penn- true, prove sylvania either the statement or to courts are authorized to impose reasonably diligent a prove inquiry sup- appropriate sanctions bad faith viola- By belief. ported the erroneous formulat- tions. Surrick’s might misstatements have manner, ing the burdens this been the penalties Office basis for before the of Disciplinary longer Superior Counsel is no re- Court. (by any quired prove measure of evi- goes further, Price step a allowing an dence) attorney actually knew the attorney’s duty of verification under the false, as practice statements were was the civil rules automatically satisfy the Of- Anonymous Attorney before A. And the fice of Disciplinary Counsel’s case under need not even prove Office that the attor- 8.4(c), if attorney’s statements ney failed to conduct a inquiry, reasonable are false. Whether is a desirable rule requirement as seemed to be the after is of no moment. That it was an unexpect- Price, A. Under departure ed from practice is ac- therefore, the of Disciplinary Office Coun- knowledged by the Pennsylvania Supreme

sel is relieved of proving the state of mind Court’s explanation that Price “set forth 8.4(c), requirement per- added RPC objective standard” based on newly mitted to solely rest its case on the falsity crafted shifting burden production. of the statements at issue. Surrick, 749 A.2d at 445.5 It repeating bears that as with the new process The required during disciplinary standard, Pennsylvania recklessness includes, proceedings minimum, at a fair Supreme Court’s decision in Price is rele- notice of the misconduct alleged. only vant to this Court’s consideration of Ruffalo, 1222; U.S. whether to afford Surrick’s Common- Johnson, 447 F.2d at 173. Knowledge of wealth discipline presumptive force. That the violation charged, and hence the ac- question turns, before, on whether the companying burdens, elements and is criti- change in unexpected Price inde- cal to mounting a proper defense. More fensible. majority contends importantly, adequate protects notice at- not, quoting Su- torneys from specter of vindictive and preme pleader Court’s view that “the in a arbitrary discipline. Rogers, 532 U.S. at court proceeding bears the burden of es- 462, 121 S.Ct. 1693. Like the District tablishing a factual basis which his Court panel, I do not find it necessary to allegations Price, are based.” 732 A.2d at determine whether the applica- retroactive However, Price itself does not cite tion of Price to Surrick’s conduct violated claim, authority for this making its federal Instead, Due Process. I would presumptive Moreover, suspect. force hold that the Due Process concerns implic- relevant issue is not whether Surrick had a it in the retroactive application of a new duty to verify the contents of his pleading. burden of proof provide grave reason to 4. Rule 1023 July was rescinded effective framework to the conduct at issue in Price as 2002. New Rules 1023.1-1023.4 continue the evidence that the burden allocation was not requirements rule, provide of the old new reasoning law. I find this irrelevant for additional on instruction remedies for viola- disagree same majority’s reasons I with tions. reliance on the Court's decision to Anonymous Attorney remand A. majority 5. The also views apply Court’s decision to this new reliance on District Court’s reject the decision.

Price un- and indefensible unexpected law, applica- retroactive and the

der not ac- “should framework

tion of its purposes of adequate for the

cepted re court.” a federal from

disbarment

Ruffalo, viewed,

(Harlan, J., concurring). So clearly erro- decision

District Court’s

neous.6

y. with finally my disagreement

I note no view on analysis implies majority’s allegations. of Surrick’s

the substance observation, forego- and for the

With ma- reasons, I dissent from the must

ing

jority’s decision. of America

UNITED STATES Mussay MUSSAYEK, Tsion

Alex a/k/a Mussayel,

ek, Alexander a/k/a a/k/a Mussyev “Alex” Tsion

Alexander

Mussayev, Appellant.

No. 02-1924. Appeals, States Court

United

Third Circuit. 3, 2003.

Argued Feb. 6, 2003. Aug.

Filed Aug.

As Amended Due additional not address Surrick’s retroactive need I would hold that the 6. Because analysis arguments, majority’s or the sufficiently grave Process rea- application of Price is decision, of those issues. I reject the Commonwealth’s son to

Case Details

Case Name: In Re: Robert B. Surrick

Court Name: Court of Appeals for the Third Circuit

Date Published: Aug 1, 2003

Citation: 338 F.3d 224

Docket Number: 01-2783

Court Abbreviation: 3rd Cir.