2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

Departing from (although not expressly overruling) the Pennsylvania Supreme Court’spronouncement in Office of Disciplinary Counsel v. Marcone, 855 A.2d 654 (Pa. 2004), cert.denied, 543 U.S. 1151 (2005), that an attorney is not permitted to open a law office in the state ofPennsylvania for the purpose of practicing before the federal courts if his Pennsylvania license issuspended, the Third Circuit Court of Appeals upheld the District Court’s entry of a declaratoryjudgment in favor of Surrick (subject to the conditions noted above), and held that under theSupremacy Clause of the United States Constitution, a state may not prohibit an attorneyadmitted to the bar of a federal district court, but suspended from the state bar, from maintaininga legal office for the sole purpose of handling federal cases.Arriving at this holding, the court explained that the central issue of this case waswhether a state law prohibiting Surrick from maintaining a law office was preempted by theexclusive authority vested in the Eastern District of Pennsylvania, under federal law, todetermine who may practice law before it. The court started with the proposition that theestablishment of a law office is necessary for the effective practice of law. The court held, inturn, that the state law prohibiting Surrick from maintaining a law office in Pennsylvania wouldeffectively prohibit him from practicing before the federal courts in Pennsylvania, and wouldthus place “additional conditions,” not contemplated by congress, on the Eastern District’s abilityto determine who is permitted to practice before it. In other words, the court was concerned thatif the state restriction were upheld, it would be necessary for Surrick to be admitted to practice inPennsylvania before he could be permitted to practice before the federal courts in Pennsylvania,thus undermining the power retained by the District Court under federal law. Under principles offederalism, the Third Circuit thus reasoned that the Commonwealth of Pennsylvania could notwield such power over the United States Congress, and ruled that the Pennsylvania lawprohibiting Surrick from establishing a law office in Pennsylvania, under the facts of this case,was preempted by federal law.It should also be noted that the Third Circuit gave no credence to the ODC’s argumentthat Surrick should be prohibited from maintaining a legal office in Pennsylvania with asuspended Pennsylvania license because Surrick would be handling federal cases basedpredominantly on diversity of jurisdiction and would therefore essentially be practicingPennsylvania law. Rejecting this argument, the court explained that it was not willing to base itsdecision whether or not to allow Surrick to open a law office in Pennsylvania on the particularfacts of each case that Surrick might handle.T. Disqualification of Trial Counsel in Civil Case – Not Immediately AppealableIn Vaccone v. Syken, 899 A.2d 1103 (Pa. 2006), the Pennsylvania Supreme Courtaddressed the issue of whether an order disqualifying trial counsel in a civil case is aninterlocutory order, which is not immediately appealable. In Vaccone, counsel for Plaintiffs inan attorney malpractice action was disqualified by the trial court because he was scheduled toappear as a witness in the case and because he had previously served as co-counsel withDefendant attorney in the underlying matter, thus giving rise to a conflict of interest. Plaintiffsappealed the trial court’s order to the Superior Court, but the Superior Court quashed the appealas interlocutory and unappealable. Plaintiffs then appealed to the Pennsylvania Supreme Court.175