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Despite having his license suspended by the Pennsylvania Supreme Court, attorney Frank J. Marcone has for years enjoyed the right to continue practicing in the Eastern District of Pennsylvania federal court. But now one judge on that court has ruled that Marcone cannot handle any cases before him because he is not currently licensed in any state and therefore is not subject to continuing legal education requirements or attorney discipline, and does not make payments to the Pennsylvania Lawyers Fund for Client Security. U.S. District Judge Berle M. Schiller ordered Marcone to withdraw within 15 days from representing the plaintiff in an age discrimination suit or take the issue to the 3rd U.S. Circuit Court of Appeals in a writ of mandamus. “The procedures and rules that licensed attorneys must follow serve to protect clients and the public at large from abuse and unethical conduct at the hands of unfit attorneys. Because Marcone is not subject to those procedures and rules in this Commonwealth — or in any state or commonwealth in this country — his clients and the public are not protected from his actions before this court,” Schiller wrote in his 18-page opinion in Sherman v. Sun East Federal Credit Union. “Allowing Marcone to practice before this court creates an atmosphere wherein unlicensed attorneys may ply their trade here in the Eastern District of Pennsylvania and presents the opportunity for attorneys to take advantage of potentially unsuspecting clients without fear of punishment. Furthermore, the profession, the public and the administration of justice all suffer by permitting unlicensed attorneys to operate in this district without appropriate checks upon their conduct,” Schiller wrote. Schiller’s opinion, handed down Wednesday, came just hours after a hearing in which the judge grilled Marcone about his unusual status and the possible effects it could have on his clients. “I’m concerned about the public, and I can’t — after talking to you and getting the answers that I got — I cannot be sure in my mind that the public is adequately protected because of the things you have failed to do which every lawyer — every lawyer who is licensed by the state of Pennsylvania — is required to do,” Schiller said. Marcone pleaded with Schiller to allow him to remain on the case, saying he would begin taking CLE courses and do whatever else the judge wanted. “I will take care of all of those things which seem to concern you,” Marcone said. “No, I’m requiring that you also be licensed,” Schiller said. After the hearing, Marcone said he was surprised and disappointed by Schiller’s position, and said that several other Eastern District judges have rejected motions seeking to have Marcone disqualified. When asked if he intended to appeal Schiller’s decision, Marcone said he has not yet decided, but he also suggested that he may seek to have the case reassigned to another judge, since Schiller is the only judge so far to rule that he cannot practice before him. In the opinion, Schiller outlined Marcone’s history of disciplinary problems dating back to 1989. According to the opinion, Marcone was admitted to practice in 1963 and was first suspended by the Pennsylvania Supreme Court in October 1989 for allegedly failing to return a $2,000 bail reimbursement to a client. Marcone fought the suspension, and it was lifted in 1990 when the Supreme Court ordered additional testimony. But Marcone ultimately lost, and the suspension was reimposed in 1995. The Eastern District also suspended Marcone, but it ruled in May 1998 that he could be re-admitted to practice in federal court in September of that year when his Pennsylvania suspension was set to expire. Schiller found that Marcone has never applied for re-instatement to the Pennsylvania bar — a prerequisite for the lifting of his suspension. In August 2004, the Pennsylvania Supreme Court found that Marcone was in contempt of its July 1995 suspension order because he was maintaining a law office in Pennsylvania and thereby holding himself out to Pennsylvania citizens as one competent to exercise legal judgment and counsel clients, despite being suspended. In its order, the Supreme Court prohibited Marcone from maintaining an office and said he “shall not hold himself out as an attorney authorized to practice law in this Commonwealth until such time that he is reinstated to the practice of law by our court.” One month later, Marcone was hit with a second five-year suspension that stemmed from his 1999 federal conviction on charges of willful failure to file income tax returns for the years 1990, 1991 and 1992. In 1999, Schiller noted, the 3rd Circuit also suspended Marcone from practicing in that court for four years. In addition to the suspensions, Schiller noted, Marcone has also received four informal admonitions, two private reprimands and a public censure from the Pennsylvania Supreme Court. Schiller concluded that permitting Marcone to practice before him “greatly risks endangering the public.” While the Pennsylvania courts have a “comprehensive system of rules and regulations” for lawyers that are designed to protect the public, Schiller found that the federal courts rely on the states and do not have their own systems for investigating alleged misconduct. “Ironically, Marcone, an attorney whose history of dishonesty demonstrates a need for increased vigilance to protect the public, will actually be subject to less scrutiny than those attorneys with spotless records, because of his limited admission status,” Schiller found. “Marcone’s past and present conduct as an attorney, coupled with the limited ability to punish Marcone for his conduct because he is not licensed to practice anywhere in the United States, poses unacceptable risks to the public, the profession and the administration of justice,” Schiller wrote. As a result, Schiller concluded that he “cannot ensure that the public, the profession and administration of justice will be protected should Marcone, an attorney who has repeatedly failed to properly discharge his duties, be permitted to appear before me.” Schiller also found that, as a suspended lawyer, Marcone is not required to take CLE courses, and that the purpose of requiring continuing education is to protect the public by ensuring that lawyers are competent and up-to-date on developments in the law. Since his 1995 suspension, Schiller found, Marcone has taken a total of 15 hours of CLE credits — far less than the 12 credits required every year by licensed lawyers. In the hearing, Marcone told Schiller that he has not kept up with his CLE because his practice is strictly federal and CLE courses pertain to state law. “Of course, that statement is wrong,” Schiller wrote. “CLE courses are offered on a number of topics relevant to those who practice in federal court.” Schiller concluded that he could not allow Marcone to practice before him due to his failure to take CLE courses and his failure to make annual payments to the Lawyers Fund for Client Security. “I find that an attorney not subject to CLE requirements presents a great risk to the public, the profession and the administration of justice. Furthermore, an unacceptable public danger results when an attorney who has repeatedly been punished for his dishonesty is allowed to escape responsibility for paying annual assessments designed to protect clients from deceitful attorneys,” Schiller wrote.

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