Office of Disciplinary Counsel v. Surrick

ZAPPALA, Justice,

dissenting.

Because I believe the majority ignores existing precedent regarding the disciplining of attorneys in the Commonwealth, thereby creating a serious obstacle for the future of our disciplinary system, I must dissent.

I cannot understand this Court’s new philosophy regarding the characterization of an attorney’s actions. In the past, we have held attorneys accountable for improper acts done apart from the exercise of their professional responsibilities because of the serious impact such improprieties can have on the system of justice as a whole. In Office of Disciplinary Counsel v. Casety, 511 Pa. 177 , 512 A.2d 607 (1986), this Court readily disbarred Casety after he had pled guilty in California to voluntary manslaughter. . In so doing we stated:

*271 We see in Casety’s conduct intemperance, as well as illegality and moral reprehensibility. As lawyers, we are bound to maintain high standards of professional conduct at all times.

Where one who has sworn to uphold the law actively breaches it, his fitness to practice is unquestionably destroyed. (citing Office of Disciplinary Counsel v. Campbell, 468 Pa. 472 , 345 A.2d 616 [1975]). Casety’s repudiation of society’s rules and indulgence in alcohol and drug abuse and homicidal conduct were serious rejections of the oath he undertook to uphold the law. We cannot condone such conduct because it destroys public confidence in the legal profession. An attorney who shows such disrespect for the law has forfeited his privilege to be numbered as an attorney, and is not competent to represent members of the public or to appear before courts.

511 Pa. at 182-183 , 512 A.2d at 610 .

Likewise, in Office of Disciplinary Counsel v. Simon, 510 Pa. 312 , 507 A.2d 1215 (1986) this Court disbared Simon for acting as a middle man for the sale and purchase of four ounces of cocaine, notwithstanding that he received no personal or financial gain. In his defense, Simon argued that his conduct did not affect his ability to practice law and therefore he should not be disbarred. In response to this argument we stated:

We will not accept this distortion of DR 1-102(A)(6). The language of Pa.R.D.E. 203(a) clearly states to the contrary: the violation of the disciplinary rules are misconduct and “shall be grounds for discipline, whether or not the act or omission occurred in the course of an attorney-client relationship.” (Emphasis supplied.) As we stated in Office of Disciplinary Counsel v. Grigsby, 493 Pa. 194 , 425 A.2d 730 (1981), “... we cannot distinguish between dishonesty involving client matters and dishonesty in private matters: the seriousness of respondent’s misconduct is not lessened by the fact that the victims of *272 his fraud were not his clients.” Id., 493 Pa. at 200 , 425 A.2d at 733 .

510 Pa. at 321 , 507 A.2d at 1220 .

Finally, in Office of Disciplinary Counsel v. Stern, 515 Pa. 68 , 526 A.2d 1180 (1987), we refused to accept the recommendation of the Disciplinary Board that Stern be given a public censure but instead ordered his disbarment for delivering funds used to facilitate bribery. The basis for our decision was our perceived responsibility to protect the public from unscrupulous lawyers and to preserve public confidence in both the legal profession and the judicial system.

Now, the majority retreats from the well-reasoned position that we may discipline an attorney notwithstanding the fact that the acts complained of did not arise from or affect his actual practice of law. The majority has chosen this course notwithstanding that the respondent has demonstrated a disregard for one of the most sacred, protected and necessary responsibilities of an attorney — the ability to maintain confidentiality. Can a lawyer who breaches his oath to maintain a confidence mandated by the Constitution be trusted to maintain the confidences of his clients?

The charges levied against the respondent are serious and greatly impact upon his ability to act as a member of the bar of this Court. The evidence clearly supports the allegation that the respondent breached his duty of confidentiality. What circumstance distinguishes this character flaw from that of Casety, Simon and Stern, all of whom we had no problem disbarring? I can find none.

I also reject the majority’s premises that disciplinary jurisdiction of the respondent must either be in the Disciplinary Board or in the JIRB (or elsewhere), but cannot be in both. Were this premise true, the Disciplinary Board would have no power to review the fitness to practice law of a judge who had been removed from the bench after JIRB proceedings. It seems obvious to me that the Board, acting on behalf of this Court, has not only the power but the duty to conduct such a review. See generally, Annot., 57 A.L. *273 R.3d 1150 (1988). We have elsewhere acknowledged that our power to supervise the bar is not exclusive, that an attorney can be subject to the requirements imposed by this Court and to others imposed by the legislature, cf. Maunus v. Commonwealth, State Ethics Commission, 518 Pa. 592 , 544 A.2d 1324 (1988). Even if we accept the notion that another body might have authority to call the respondent to account for his conduct, we need not abjure our own power to do likewise in the protection of interests under our supervision.

Finally, with the stroke of a pen, the majority, in essence, transfers control of all appointed masters, common law arbitrators and statutory civil arbitrators from our Disciplinary Board to JIRB. It would seem that now every attorney who serves as a Master in a divorce proceeding, a hearing officer, a member of the American Arbitration Association or a court appointed civil arbitration board, is no longer subject to discipline by our Disciplinary Board but rather is subject to the JIRB. Like the respondent’s position on the JIRB, each of these positions requires the performance of “judicial functions”. Treating all of these positions as “judicial officers” for the purpose of discipline will impose on the JIRB a result neither prescribed nor intended by our Constitution.

I also cannot agree with the majority’s internal, contradictory approach to the enforcement of ethics code violations in the cases such as that of the respondent. On the one hand, the majority elevates the attorney and lay members of the JIRB to the status of “judges” for purposes of determining jurisdiction for disciplinary matters. On the other hand, the majority (and properly so) indicates that those same members may only be removed (disciplined) by the appointing authority. Thus, the majority protects the respondent from the jurisdictional reaches of the Disciplinary Board and this Court on the basis that he is a “judge” and therefore only subject to the JIRB. However, since the respondent was appointed to the JIRB by the governor, this Court cannot administer any discipline. I cannot imagine a *274 more futile process than for the JIRB to conduct investigations, hold hearings, and recommend appropriate discipline to this Court (for such are its functions as set out in the Constitution), if this Court has no power to act on the recommendation. The majority, however, ignores this absurd result and glosses over it by deeming it satisfactory that the appointing authority can remove any member who commits an inappropriate act.

The majority’s simplistic definitional exercise, whereby one becomes subject to JIRB jurisdiction merely by doing the kinds of things a judge does (“exercising judicial functions” as the majority has it) is hardly satisfactory. Although the term “judicial officers” is broadly defined as “judges, district justices and appointive judicial officers”, 42 Pa.C.S. § 102, the statutory provision implementing the Constitutional provision creating the JIRB, authorizes only the power to discipline or remove judges. 42 Pa.C.S. § 3331(a). Article V, § 18 itself speaks only of the JIRB investigating and recommending action against a justice or judge. The process for removal of district justice is left to be governed by general rule, 42 Pa.C.S. § 3331(b), although we have adopted a rule that, in essence, brings district justices within JIRB jurisdiction by including them within the definition of “judge” for purposes of JIRB rules. See, JIRB Rule 23(b). Whatever positions are covered by the term “appointive judicial officers”, neither the Constitution nor the statute enumerating JIRB’s powers authorizes the JIRB to discipline them. If an attorney serving a judicial function commits an improper act, then under the majority’s rational, that attorney may be barred from serving in a judicial capacity but not as a practicing attorney of this Commonwealth. Such a result is absurd.

I cannot condone this perversion. Accordingly, I must respectfully dissent.