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decided*fn*: March 7, 1989.


On Review of Report and Order of the Disciplinary Board


Thomas B. Rutter, Philadelphia, for respondent.

Alan J. Davis, Asst. Disciplinary Counsel, Philadelphia, for Disciplinary Bd.

Nix, C.j., and Flaherty, Zappala, Papadakos and Stout, JJ. Larsen and McDermott, JJ., did not participate in the consideration or decision of this case. Zappala and Papadakos, JJ., filed a dissenting opinion.

Author: Flaherty

[ 521 Pa. Page 265]


In this appeal we are asked to review an order of the Disciplinary Board of this Court directing that attorney Robert B. Surrick be subjected to a private reprimand. The pertinent facts are as follows.

In 1980, then Mr. Chief Justice Henry X. O'Brien directed the Judicial Inquiry and Review Board (hereinafter JIRB) to conduct an investigation upon charges that Mr. Justice Larsen had engaged in certain improprieties. Hearings were held over a two year period, after which the members of the JIRB were in disagreement as to whether Mr. Justice Larsen should be removed from judicial office, but a majority voted to dismiss all charges. Immediately thereafter, Surrick, one of the members of the JIRB, filed a petition with this Court seeking leave to file a sealed document, removal of the matter involved from the JIRB, and requesting that plenary jurisdiction be accepted by this Court. This petition, designated as the "XYZ Petition" in order to preserve confidentiality of the JIRB proceedings, was dismissed by the Court. Application of Surrick, 504 Pa. 25, 470 A.2d 447 (1983). Mr. Justice Larsen participated in voting for its dismissal. A dissenting opinion was filed by Mr. Justice Nix (now Chief Justice), joined by Mr. Justice McDermott, criticizing Mr. Justice Larsen's participation in the vote:

At the outset of the Court's deliberation on this subject, objection was made to the participation of Mr. Justice Larsen. The basis of that objection is Article 5, Section 18(i) of the Pennsylvania Constitution which prohibits,

[ 521 Pa. Page 266]

    without qualification, a justice from participating "in any proceeding involving his suspension, removal, discipline or compulsory retirement." It was argued in support of the refusal of Mr. Justice Larsen to recuse himself that it was not apparent the matter under consideration was related to the charges currently pending before the Judicial Inquiry and Review Board against Justice Larsen. In view of all of the information that has been made public through the media and through prior applications to this Court, it is ludicrous to suggest that it was not absolutely obvious that the Petition for Removal was a request in connection with the Larsen inquiry.

504 Pa. at 31, 470 A.2d at 450.

Upon learning that Mr. Justice Larsen failed to recuse himself from voting on the "XYZ Petition," Surrick filed a complaint with the JIRB alleging judicial misconduct. In June of 1983, the JIRB, allegedly without investigating the matter, and in the presence of Surrick, voted to dismiss the complaint. Surrick then proceeded to disclose to the public the fact that the JIRB had dismissed his complaint without an investigation into the propriety of Mr. Justice Larsen's vote. This was done through letters to the presidents of various county bar associations in Pennsylvania, a letter to the legislature's Speaker of the House, and an article published by Surrick in a legal journal.

Also in June of 1983, Surrick sought leave to intervene in litigation in the United States District Court involving the issue of whether records of the earlier investigation of Mr. Justice Larsen, to wit, the investigation commenced in 1980, should be made public. See First Amendment Coalition v. Judicial Inquiry and Review Board, 579 F.Supp. 192 (E.D. Pa. 1984), vacated, 784 F.2d 467 (3rd Cir. 1986). Surrick submitted with his motion to intervene a memorandum, pertaining to that litigation and marked "confidential," that had been prepared for the JIRB by one of its legal counselors. The motion to intervene was, nevertheless, denied.

Soon thereafter, in July of 1983, Mr. Justice Larsen filed with the Disciplinary Board of this Court a complaint

[ 521 Pa. Page 267]

    against Surrick. After extensive review, including a number of evidentiary hearings, the Board ordered in January of 1988 that Surrick be subjected to a private reprimand. The basis for this order was the Board's determination that DR 1-102(A)(5), which prohibits an attorney from engaging in conduct prejudicial to the administration of justice, had been violated in two respects.*fn1 The first of these consisted of Surrick's disclosures to the public regarding the JIRB's disposition of his complaint. The second consisted of the filing of the confidential memorandum of a JIRB legal counselor in connection with Surrick's motion to intervene in federal litigation. The essence of both violations rests upon the Disciplinary Board's perception that confidentiality standards of the JIRB had been transgressed.

The relevant confidentiality standards are set forth in Article V, Section 18(h) of the Pennsylvania Constitution, where it is provided, "All papers filed with and proceedings before the [JIRB] shall be confidential but upon being filed by the [JIRB] in the Supreme Court, the record shall lose its confidential character." Virtually identical language is found in 42 Pa.C.S. § 3334 and in Rule 20 of the Rules of Procedure governing the JIRB. Hence, in the normal case, it is only in the event that the JIRB recommends discipline and forwards its record to this Court that confidentiality expires.

At all times pertinent to this case, Surrick was a member of the JIRB. The JIRB is not, in itself, a "court," but rather is a constitutionally independent body, judicial in character, established by the Judiciary Article of the Pennsylvania Constitution. See Pa. Const. Art. V, § 18; First Amendment Coalition v. Judicial Inquiry and Review Board, 501 Pa. 129, 460 A.2d 722 (1983). It is comprised of nine members, including three judges of the courts of common pleas, two judges of the Superior Court, two nonjudge members of the bar, and two laymen. Pa. Const. Art. V, § 18(a). The JIRB is also funded by and makes its

[ 521 Pa. Page 268]

    recommendations directly to this Court. In the exercise of its constitutionally established role, the JIRB is a part of the judicial system. As an officer of that system, Surrick was subject to the Code of Judicial Conduct, inasmuch as the Code provides,

Anyone, whether or not a lawyer, who is an officer of a judicial system performing judicial functions, including an officer such as a referee in bankruptcy, special master, court commissioner, or magistrate, is a judge for the purpose of this Code. All judges should comply with this Code except as provided [in expressly enumerated exceptions not relevant here.]

(Emphasis added). Violations of the Code of Judicial Conduct are within the jurisdiction of the JIRB, not the Disciplinary Board. Pa. Const. Art. V, § 18(d).

In connection with Surrick's alleged breaches of confidentiality as a member of the JIRB, no disciplinary sanction has been sought by the JIRB. It is of interest to note, too, that the JIRB has filed an amicus brief in this appeal supporting Surrick's position that an attorney serving on the JIRB should not be subjected to jurisdiction of the Disciplinary Board of this Court for transgressions of the rules and mandates governing the JIRB. We agree. The Code of Judicial Conduct provides adequate constraints upon the conduct of JIRB members. Further, when a member of the JIRB has performed in such a manner as to provide cause for his removal, he can be removed from service by the appointing authority. Pa. Const. Art. V, § 18(b). With regard to the two non-judge attorneys having membership in the JIRB, the appointing authority is the Governor. Pa. Const. Art. V, § 18(a). The Governor did not, however, at any time seek to remove Surrick from service on the JIRB. Clearly, to the extent that a member of the JIRB breaches duties pertaining to membership in that body, appropriate remedies, including removal from office, are available. The disciplinary system governing members of the bar of this Court, as administered by the

[ 521 Pa. Page 269]

Disciplinary Board, should not, however, be utilized in such situations.

The Disciplinary Board of the Supreme Court of Pennsylvania is, as its name implies, an instrument of this Court. See Pa.R.D.E. 103, 201, 205. Its members are appointed by us, and serve under our direction. The Board stands, therefore, as a formidable tool that has the potential of being utilized by deficient members of the judiciary as a means of discouraging attorneys from being vigorous in carrying out their JIRB duties. Vigorous independent participation by attorney-members of the JIRB is essential, for they have professional commitment, legal education, necessary perspective, and requisite experience with the court system, all of which provide valuable input into the judicial disciplinary process. An attorney who is obligated to review the conduct of the judiciary must not, even potentially, be subject to discipline in a forum the membership of which is controlled by those the JIRB is required to review, as the fear of disciplinary retribution could obviously act to stifle the free exercise of independent judgment.

The JIRB cannot be permitted to become a mere facade, allowing, or being perceived as allowing, judicial improprieties to go unchecked. To assure the proper functioning of the JIRB as an independent judicial body, see First Amendment Coalition v. Judicial Inquiry and Review Board, 501 Pa. at 132-33, 460 A.2d at 724, it is absolutely necessary that members of that body be immune from even the possibility of reprisals from those whose conduct is being evaluated. Attorney-members of the JIRB must not, and cannot, be placed in jeopardy by the inherent risk of offending members of the judiciary. If the disciplinary system for members of the bar could be invoked by the judiciary as a means of retaliating against attorneys who are members of the JIRB, the ...

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