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A lawyer whose license was suspended by the Pennsylvania Supreme Court but who later won the right to resume practicing in federal court claims he faces an impossible ethical dilemma since Pennsylvania’s highest court has ruled that such lawyers are barred from opening a Pennsylvania office to support that federal practice. Attorney Robert B. Surrick has filed suit in federal court to challenge that ruling, arguing that in those rare cases where the federal courts allow a suspended lawyer to practice, the state courts must allow the lawyer to open an office. Surrick is one of three lawyers — along with Frank Marcone and Robert F. Simone — who have won the right to practice in the U.S. District Court for the Eastern District of Pennsylvania despite the fact that his Pennsylvania license is currently suspended. The status of all three was called into question in August when the Pennsylvania Supreme Court ruled in Office of Disciplinary Counsel v. Marcone that Marcone was violating his suspension by opening an office even though he was limiting his practice to federal cases. “Through the maintenance of a law office within the borders of our commonwealth, Mr. Marcone, a suspended attorney, holds himself out to the citizens of our commonwealth as one competent to exercise legal judgment and competent in the law,” Chief Justice Ralph J. Cappy wrote in the 6-0 decision. “Similarly, through the maintenance of a law office, Mr. Marcone counsels clients as to their legal rights and obligations. Thus, we conclude that he has engaged in the practice of law in this commonwealth. That Mr. Marcone’s maintenance of a law office is limited solely to his practice before the [Eastern District] does not alter our conclusion,” Cappy wrote. Now Surrick has filed suit to challenge the ruling in Marcone’s case. Surrick’s lawyers — David Rudovsky and Jonathan H. Feinberg of Kairys Rudovsky Epstein & Messing and Professor Seth F. Kreimer of the University of Pennsylvania Law School — are seeking a declaratory judgment that the decision in Marcone’s case was wrong and that Surrick must be allowed to open an office. The Marcone decision “is flawed, factually and legally,” they argue, because the constraints that the ruling imposes “effectively eviscerate” the rights conferred by the federal court’s decision to grant readmission. “The court can take judicial notice of the fact that a lawyer without an office — and thus without access to legal reference materials, space to meet with clients and witnesses, administrative support and related resources — cannot effectively or competently engage in the practice of law,” Surrick’s lawyers argue. Named as defendants in the suit are Paul J. Killion, chief counsel in the Pennsylvania Office of Disciplinary Counsel, and all seven justices on the Pennsylvania Supreme Court. In a motion for a preliminary injunction, Surrick’s lawyers argue that the decision in Marcone’s case put Surrick in an impossible ethical bind. “To engage in practice in this court, it is imperative for plaintiff to have an office in Pennsylvania. It is impossible to practice law and to provide competent, professional and effective assistance of counsel without a law office where counsel can meet and consult with clients, prepare necessary documents, access legal authorities and conduct necessary litigation-related activities,” Surrick’s lawyers wrote. “To practice without the services of a law office would constitute the negligent and ineffective practice of law,” they wrote. Killion could not be reached for comment. Chief Justice Cappy, through a spokesman, declined to issue any immediate comment. In their brief, Surrick’s lawyers argue that case law dating back to 1824 supports Surrick’s claim that he must be allowed to open a Pennsylvania office now that the federal courts have reinstated him. “From the founding of the Republic, it has been recognized that the federal courts exercise an inherent and independent authority to admit qualified individuals to the practice of law before them,” they wrote. The federal courts have traditionally used admission to the bar of state courts as a standard for initial admission to their bars, the brief says. “But once admitted, the question of whether an individual remains qualified to practice law as an officer of the federal court is a judgment that federal courts reach independently,” the brief says. In Surrick’s case, the Pennsylvania Supreme Court suspended him for five years, but the judges of the Eastern District federal bench voted to impose a suspension of just 30 months. In May 2004, Surrick was reinstated to practice before the Eastern District after a three-judge panel concluded that he had demonstrated “by clear and convincing evidence” that he “possesses the moral qualifications competency and learning to practice before this court.” Surrick’s lawyers note that the Eastern District’s local rules specifically contemplate the readmission of a lawyer to federal practice despite a continuing suspension by a state court. As a result, they argue, “the Commonwealth of Pennsylvania is constitutionally barred from interfering with Mr. Surrick’s practice of law pursuant to this court’s readmission.” In their brief, Surrick’s lawyers argue that his right to an injunction is grounded in the Supremacy Clause of the U.S. Constitution and case law dating back to the 1824 decision in Gibbons v. Ogden in which Chief Justice John Marshall held that states cannot interpose their regulatory authority to interfere with activities pursued under federal license. Although Gibbons involved shipping rights, Surrick’s lawyers argue that the principles established in that decision were extended to lawyers in the U.S. Supreme Court’s 1963 decision in Sperry v. Florida Bar which unanimously reversed a determination by the Supreme Court of Florida that a layman admitted to practice before the United States Patent Office could be disciplined for unauthorized practice of law because he maintained an office in the state of Florida to give patent advice and held himself out as a patent attorney. The Sperry court acknowledged that Sperry’s actions constituted the practice of law and that Florida’s interest in regulating such practice was “substantial.” But the justices nonetheless concluded that since the patent office was acting within its sphere of legislatively delegated authority when it authorized Sperry to practice before it, Florida could not interfere with that practice. Surrick’s lawyers argue that the Pennsylvania Supreme Court’s decision in Marcone’s case cannot be squared with Sperry. “Just as Florida could not interfere with Mr. Sperry’s practice before the Patent Office, Pennsylvania may not discipline Mr. Surrick for engaging in practice before this court,” they wrote. “The Sperry doctrine prohibits state regulations that directly or indirectly impede the protected federal practice,” they wrote. The case, Surrick v. Killion, has been assigned to U.S. District Judge Charles R. Weiner.

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