February 2005

Topic:
A lawyer may not operate a law office within state borders in order to maintain a federal court practice when that lawyer is not authorized to practice within the state due to discipline.

Frank J. Marcone v. Office of Disciplinary Counsel, 2005 WL 406090, 73 USLW 3372, 73 USLW 3482, 73 USLW 3494 (February 22, 2005). The United States Supreme Court denied Marcone’s petition for writ of certiorari to the Supreme Court of Pennsylvania. Marconi was licensed to practice in Pennsylvania in 1963. In 1989, he was suspended for four years after he failed to return a $2,000 bail reimbursement for a client. The following year, the Pennsylvania Supreme Court vacated the suspension and remanded the matter for additional testimony. On July 6, 1995, the Pennsylvania Supreme Court reimposed the suspension with credit for time served and the United States District Court for the Eastern District of Pennsylvania imposed a reciprocal suspension against him. In 1998, the federal district court reinstated Marcone notwithstanding the fact that he never applied for reinstatement in Pennsylvania state. Unlike the practice in most jurisdictions, the Pennsylvania federal court has reinstated a number of Pennsylvania-disciplined attorneys before they were ever reinstated in the state system. There is a local federal court rule requiring that, in reciprocal disciplinary matters, the disciplined lawyer must first petition the state court for reinstatement. United States District Court for the Eastern District of Pennsylvania Local Rules, Rule 83.6, VII (C). The district court apparently ignores the rule. Such a practice causes substantial problems, as the local federal attorney regulatory process has no practical means to investigate properly the content of any reinstatement petition. After he was reinstated in the federal district court, Marcone was sentenced to four months in prison after he was convicted of failure to file federal income tax returns. He was again suspended in the district court and, in 1999, the United States Court of Appeals for the Third Circuit suspended him for four years and until the State of Pennsylvania reinstated him. Again, Marcone never sought reinstatement in the state. Rather, after a time, he sought reinstatement in the federal trial court. The district court reinstated him again in 2001. Marcone then opened a law office in Ridley Park, Pennsylvania, where he met with clients and maintained his practice. In the window of his office, a sign read: "Frank J. Marcone, Attorney at Law" He advised those with whom he met that he had a limited ‘federal practice’. Additionally, the letterhead on his stationery reflected that he limited his business to federal practice. He represented clients in the district court in diversity jurisdiction cases. As of 2003, Marcone was actively engaged in approximately 100 cases within the federal court or other states where he was admitted pro hac vice. Pennsylvania initiated a contempt proceeding against him for maintaining a law office within Pennsylvania borders after he was suspended in that state. He defended himself by arguing that he had a valid federal license and limited his practice to the federal court. The Supreme Court of Pennsylvania in Office of Disciplinary Counsel v. Marcone, 855 A.2d 654, (Penn. August 16, 2004), held him in contempt, holding:

Through the maintenance of a law office, Mr. Marcone, although suspended, holds himself out to the citizens of our Commonwealth as one competent to exercise legal judgment and as one competent in the law, and counsels clients as to their legal rights and obligations, even though for purposes of practicing before the United States District Court for the Eastern District of Pennsylvania. We find that by his maintenance of such a law office, Mr. Marcone has engaged in the practice of law. This is in violation of our Rule 217, and thus, our order of July 6, 1995 prohibiting him from engaging in, inter alia, the practice of law. Therefore, we conclude that Mr. Marcone is in contempt of our prior order. (Footnote 11- We emphasize that the issue before us today is a narrow one. We are in no fashion speaking to Mr. Marcone's ability to be admitted to the United States District Court for the Eastern District of Pennsylvania or to represent clients in that court. The sole issue before us is whether Mr. Marcone's maintenance of a law office within our Commonwealth constitutes contempt of our prior order suspending him from all law-related activities which include, inter alia, the practice of law in our Commonwealth. We find that it does.)

As an interesting aside, a judge of the United States District Court for the Eastern District of Pennsylvania, Hon. Berle M. Schiller, recently barred Marcone from representing anyone other than himself in any proceeding before Judge Schiller, until such time as Marcone is once again licensed to practice law in a State or Commonwealth of the United States.” The judge took this extraordinary action because, in his words, the Court could not ensure that the public, profession, and administration of justice would be protected should Marcone continue to practice before Judge Schiller. Sherman v. Sun East Federal Credit Union, 04-5787 (E.D.Penn, March 16, 2005).