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CANTOR v. SUPREME COURT OF PENNSYLVANIA

January 31, 1973

Gilbert M. CANTOR et al.
v.
SUPREME COURT OF PENNSYLVANIA, et al.


Higginbotham, District Judge.


The opinion of the court was delivered by: HIGGINBOTHAM

I.

 Most lawyers recall with pride the significant day when they took the oath to practice law with fidelity and integrity to their clients, the courts, and in the administration of the state and federal laws and constitutions. Sometimes on such occasions lawyers are reminded of goals such as those expressed so eloquently by Bacon in his extraordinary essay, On Judicature: "The place of justice is the hallowed place, and therefore not only the bench but the footpath and precincts and purpose thereof ought to be preserved without scandal and corruption." *fn1" Hopefully, most lawyers maintain that level of integrity required for the ideal administration of justice. Yet, some have failed to uphold those standards which they were sworn to keep, and then there arises the ancient question, "quis custodiet ipsos custodes" ["Who shall keep the keepers"]. *fn2" In a real sense, the issue here is how should the legal profession keep its own house in order. In their attack on the Pennsylvania Supreme Court's Disciplinary Rules for lawyers, the plaintiffs do not argue that lawyers should be immune from discipline, but rather they attack the present procedure.

 The plaintiffs' multi-faceted attack exemplifies our profession's capacity to proliferate legal labels and categorizations even when their cause is inadequate on substantive grounds. I am confident that they press their claims with sincerity, and they demonstrate creativeness in the breadth of their challenge. Yet, after careful review, I find that from the beginning to the end their arguments have no federal constitutional substance and therefore their complaint must be dismissed. *fn3"

  II

 Historical Perspective

 As Justice Holmes has suggested, ". . . a page of history is worth a volume of logic." *fn4" The history which preceded the present rule must be first understood before delineating the purported constitutional issues.

 In February of 1967, the American Bar Association created the Special Committee on Evaluation of Disciplinary Enforcement "to assemble and study information relevant to all aspects of professional discipline . . ." *fn5" The Committee was privileged to be chaired by the Honorable Tom C. Clark, Retired Associate Justice of the United States Supreme Court. Before the ABA Committee published its final report which said that the failure to have an adequate disciplinary system was a "scandalous situation that requires the immediate attention of the profession," *fn6" the Board of Governance of the Pennsylvania Bar Association adopted a resolution on June 19, 1969 authorizing the appointment of a Committee to study the procedures in Pennsylvania relating to the discipline of lawyers and to submit recommendations for a more effective system. *fn7" Following the completion of both the Clark Report and the Pennsylvania Report, the Supreme Court of Pennsylvania on March 21, 1972 adopted and promulgated The Rules of Disciplinary Enforcement in Rule 17-19, §§ 1-25. *fn8" It is primarily Rule 17-19 which the instant plaintiffs challenge.

 Robert W. Meserve, President of the American Bar Association recently commented:

 
"It is easy to exaggerate the dimensions of the problem as some sensation purveyors have done from time to time. Lawyers know that most of their colleagues do abide by the ethical code and that in relation to the one third of a million members of the profession only a very small number do not. But it is important that the public also know that we have the will and capacity to clean our house and weed out the transgressors.

 Purporting to represent a class consisting of all attorneys in Pennsylvania and also various clients who have allegedly been deprived of chosen counsel by reason of the operation of the suspension provisions of the rules, on August 31, 1972, the plaintiffs filed suit seeking (1) the convening of a three-judge court pursuant to 28 U.S.C. § 2281 *fn10" and § 2284; *fn11" (2) a declaration that the disciplinary rules are unconstitutional on their face and as applied (28 U.S.C. §§ 2201, *fn12" 2202 *fn13" ), and (3) an injunction restraining further enforcement of the rules (28 U.S.C. § 2283 *fn14" ). The plaintiffs allege causes of action under 42 U.S.C. § 1983, Article I, § 2 and Article II, § 4 of the United States Constitution, and the First, Third, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution. The plaintiffs assert jurisdiction under 28 U.S.C. §§ 1331, *fn15" 1343. *fn16"

 The rule challenged by the plaintiffs is Rule 17-19 of the Rules of Disciplining Enforcement which now16a provides as follows:

 
" Periodic Assessment of Attorneys
 
(a) Every attorney admitted to practice in any court of this Commonwealth shall pay an annual fee of $25.00. The annual fee shall be collected under the supervision of the Court Administrator of Pennsylvania, hereinafter referred to as "Court Administrator", who shall send and receive, or cause to be sent and received the notices and statements provided for hereafter. The said fee shall be used to defray the costs of disciplinary administration and enforcement under these Rules, and for such other purposes as the Board shall, with the approval of this Court, from time to time determine.
 
(b) Judges shall be exempt for such time as they serve in office.
 
(c) Any attorney who fails to timely pay the fee required under (a) above shall be summarily suspended, provided a notice of delinquency has been forwarded to him by certified mail, return receipt requested, addressed to his last known address at least 30 days prior to such suspension, unless he shall have been excused on grounds of financial hardship pursuant to procedures to be established by the Board.
 
(d) Any attorney suspended under the provisions of (c) above shall be reinstated without further order upon payment of all arrears due from the date of his last payment to the date of his request for reinstatement.
 
(e) To facilitate the collection of the annual fee provided for in (a) above, all persons required by this Rule to pay an annual fee shall, on or before July 1 of every year, commencing July 1, 1972, file a statement, on a form prescribed by the Court Administrator, setting forth his date of admission to the Supreme Court or, if not admitted in this Court, the dates of admission and courts to which he is admitted, his current residence and office addresses and such other information as the Court Administrator may from time to time direct.
 
In addition to such statement, every attorney shall file a supplemental statement of any change in the information previously submitted within 30 days of such change. All persons first becoming subject to these Rules by admission after July 1, 1972 shall file the statement required by this Rule at the time of admission, but no annual fee shall be payable until the 1st day of July next following such admission.
 
(f) Within 20 days of the receipt of a statement or supplement thereto filed by an attorney in accordance with the provisions of (e) above, receipt thereof shall be acknowledged, on a form prescribed by the Court Administrator, in order to enable the attorney on request to demonstrate compliance with the requirement of (a) and (e) above. The certificate issued shall distinguish between attorneys admitted to this Court and attorneys not admitted to this Court but admitted to another court of this Commonwealth.
 
(g) Any attorney who fails to file the statement or supplement thereto in accordance with the requirements of (e) above shall be summarily suspended, provided a notice of delinquency has been forwarded to him by certified mail, return receipt requested, addressed to his last known business address at least 30 days prior to such suspension, until he shall have complied therewith, whereupon he shall be reinstated without further order.
 
(h) An attorney who has retired or is not engaged in practice shall file a notice in writing that he desires to assume inactive status and discontinue the practice of law. Upon the filing of such notice, the attorney shall no longer be eligible to practice law but shall continue to file the statement required by this Rule for six years thereafter in order that he can be located in the event complaints are made about his conduct while he was engaged in practice. The attorney, however, will be relieved from the payment of the fee imposed by this Rule upon active practitioners.
 
(i) Upon the filing of a notice to assume inactive status, an attorney shall be removed from the roll of those classified as active until and unless he requests and is granted reinstatement to the active rolls. Reinstatement shall be granted, unless the attorney is subject to an outstanding order of suspension or disbarment, upon the payment of any assessment in effect for the year the request is made and any arrears accumulated prior to transfer to inactive status."

 III

 Standards for Convening a Three-Judge Court

 The threshold question before me is whether the plaintiffs' federal constitutional challenge to the disciplinary rules of the Pennsylvania Supreme Court requires the convening of a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284. Initially, there is no question that the disciplinary rules in question are a "statute" of state-wide application thus bringing this case within the ambit of § 2281. *fn17" Accordingly I must decide whether the challenge to the rules in question presents a substantial federal question mandating my convening a three-judge court or whether the federal constitutional issues are insubstantial, thus requiring dismissal of the complaint. *fn18"

  In Ex parte Poresky, 290 U.S. 30, 31, 54 S. Ct. 3, 4, 78 L. Ed. 152 the Supreme Court said that "[a] substantial claim of unconstitutionality" is necessary for the convening of a three judge court, and that the statute "does not require three judges to pass upon this initial question of jurisdiction." The Court further said:

 
"The existence of a substantial question of constitutionality must be determined by the allegations of the bill of complaint. Mosher v. [City of] Phoenix, 287 U.S. 29, 30, 53 S. Ct. 67, 77 L. Ed. 148; Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105, 53 S. Ct. 549, 550, 77 L. Ed. 1062. The question may be plainly unsubstantial either because it is 'obviously without merit' or because 'its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy.' Levering & Garrigues Co. v. ...

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