MR. JUSTICE DOUGLAS delivered the opinion of the Court.
Petitioner was ordered indefinitely suspended from the practice of law by the Supreme Court of Ohio on two findings of alleged misconduct. Mahoning County Bar Assn. v. Ruffalo, 176 Ohio St. 263, 199 N.E.2d 396. That order became final and is not here on review. The Federal District Court, after ordering petitioner to show cause why he should not be disbarred, found that there was no misconduct. In re Ruffalo, 249 F.Supp. 432 (D. C. N. D. Ohio). The Court of Appeals likewise ordered petitioner to show cause why he should not be stricken from the roll of that court on the basis of Ohio's disbarment order. The majority held that while one of the two charges might not justify discipline, the other one did; and it disbarred petitioner from practice in that Court. 370 F.2d 447 (C. A. 6th Cir.). The dissenting judge thought that neither charge justified suspension from practice.
In the state court proceedings, upon which the decision of the Court of Appeals relied (see Rule 6 (3) of the United States Court of Appeals for the Sixth Circuit), the Ohio Board of Commissioners on Grievances and Discipline originally charged petitioner with 12 counts of misconduct. Charges Nos. 4 and 5 accused petitioner of soliciting FELA plaintiffs as clients through an agent, Michael Orlando. At the hearings which followed, both Orlando and petitioner testified that Orlando did not solicit clients for petitioner but merely investigated FELA cases for him. It was brought out that some of Orlando's investigations involved cases where his employer, the Baltimore & Ohio Railroad, was defendant. Immediately after hearing this testimony, the Board, on the third day of hearings, added a charge No. 13 against petitioner based on his hiring Orlando to investigate Orlando's own employer. Counsel for petitioner objected, stating:
The State Board found petitioner guilty of seven counts of misconduct, including No. 13. On review, the Supreme Court of Ohio found the evidence sufficient to sustain only two charges, one of them being No. 13, but concluded that the two violations required disbarment. The only charge on which the Court of Appeals acted was No. 13, which reads as follows:
Though admission to practice before a federal court is derivative from membership in a state bar, disbarment by the State does not result in automatic disbarment by the federal court. Though that state action is entitled to respect, it is not conclusively binding on the federal courts. Theard v. United States, 354 U.S. 278, 281-282.
Petitioner, active in the trial of FELA cases, hired a railroad man to help investigate the cases. He was Orlando, a night-shift car inspector for the Baltimore & Ohio Railroad Co. There was no evidence that Orlando ever investigated a case in the yard where he worked as inspector. There was no evidence that he ever investigated on company time. Orlando had no access to confidential information; and there was no claim he ever revealed secret matters or breached any trust. It is clear
One federal guidepost in this field is contained in § 10 of the Federal Employers' Liability Act, as amended, 53 Stat. 1404, 45 U. S. C. § 60, which was enacted to encourage employees of common carriers to furnish information "to a person in interest," as to facts incident to the injury or death of an employee.
The Ohio Supreme Court, however, concluded that "one who believes that it is proper to employ and pay another to work against the interests of his regular employer is not qualified to be a member of the Ohio Bar." 176 Ohio St., at 269, 199 N. E. 2d, at 401.
We are urged to hold that petitioner's efforts to conceal this employment relationship and the likelihood of a conflict of interest require the federal courts to respect the decision of the Ohio Supreme Court as being within the range of discretion.
As noted, the charge (No. 13) for which petitioner stands disbarred was not in the original charges made against him. It was only after both he and Orlando had testified that this additional charge was added. Thereafter, no additional evidence against petitioner relating to charge No. 13 was taken. Rather, counsel for the county bar association said:
There was no de novo hearing before the Court of Appeals. Rather, it rested on the Ohio court's record and findings:
If there are any constitutional defects in what the Ohio court did concerning Charge 13, those defects are reflected in what the Court of Appeals decided. The Court of Appeals stated:
We turn then to the question whether in Ohio's procedure there was any lack of due process.
Disbarment, designed to protect the public, is a punishment or penalty imposed on the lawyer. Ex parte Garland, 4 Wall. 333, 380; Spevack v. Klein, 385 U.S. 511, 515. He is accordingly entitled to procedural due process, which includes fair notice of the charge. See In re Oliver, 333 U.S. 257, 273. It was said in Randall v. Brigham, 7 Wall. 523, 540, that when proceedings for disbarment are "not taken for matters occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made and opportunity afforded him for explanation and defence." Therefore, one of the conditions this Court considers in determining whether disbarment by a State should be followed by disbarment here is whether "the state procedure from want of notice or opportunity to be heard was wanting in due process." Selling v. Radford, 243 U.S. 46, 51.
In the present case petitioner had no notice that his employment of Orlando would be considered a disbarment offense until after both he and Orlando had testified
These are adversary proceedings of a quasi-criminal nature. Cf. In re Gault, 387 U.S. 1, 33. The charge must be known before the proceedings commence. They become a trap when, after they are underway, the charges are amended on the basis of testimony of the accused. He can then be given no opportunity to expunge the earlier statements and start afresh.
How the charge would have been met had it been originally included in those leveled against petitioner by the Ohio Board of Commissioners on Grievances and Discipline no one knows.
MR. JUSTICE BLACK, for reasons stated in the Court's opinion and many others, agrees with the Court's judgment and opinion.
MR. JUSTICE STEWART took no part in the decision of this case.
MR. JUSTICE HARLAN, concurring in the result.
I see no need to decide whether the notice given petitioner of the charge that formed the basis of his subsequent federal disbarment was adequate to afford him constitutional due process in the state proceedings. For I think that Theard v. United States, 354 U.S. 278, leaves us free to hold, as I would, that such notice should not be accepted as adequate for the purposes of disbarment from a federal court. On that basis, I concur in the judgment of the Court.
MR. JUSTICE WHITE, with whom MR. JUSTICE MARSHALL joins, concurring in the result.
The Court reverses petitioner's disbarment by the Court of Appeals for the Sixth Circuit because petitioner had inadequate notice prior to his earlier state disbarment proceeding of the charges which the Mahoning County Bar Association was bringing against him at that proceeding. The state disbarment, however, is not before us. We denied a petition for certiorari seeking review of it. Ruffalo v. Mahoning County Bar Assn., 379 U.S. 931 (1964). Our writ in the instant case extends only to petitioner's disbarment by the Court of Appeals for the Sixth Circuit. The question therefore
In answering that question we must inquire into the nature of the proceeding that took place in the Court of Appeals. That court was obligated to determine for itself the facts of the attorney's conduct and whether that conduct had been so grievous as to require disbarment. Theard v. United States, 354 U.S. 278 (1957). The Court of Appeals asked petitioner to "show cause if any he has . . . why he should not be stricken from the roll of counsel of this Court." In response to that order petitioner filed a response and brief. The Ohio State Bar Association filed a brief also, urging petitioner's disbarment. The cause was argued orally to a panel of the Court of Appeals.
In his brief and oral argument, petitioner did not take issue with the determinations of fact that had been made by the Ohio Supreme Court. The Court of Appeals gave petitioner a full opportunity to assert that the state court had not accurately determined the facts of his conduct—and to assert, had he wished to do so, that the late point at which he learned that employing car inspector Orlando would be one ground for disbarment had prejudiced the factual record formed in the state court. Petitioner, not disputing the lower court's factual conclusions, made no such objection.
A relevant inquiry in appraising a decision to disbar is whether the attorney stricken from the rolls can be deemed to have been on notice that the courts would condemn the conduct for which he was removed. The Court of Appeals for the Sixth Circuit had provided petitioner and the other members of its bar with a general standard for disbarment:
Even when a disbarment standard is as unspecific as the one before us, members of a bar can be assumed to know that certain kinds of conduct, generally condemned by responsible men, will be grounds for disbarment. This class of conduct certainly includes the criminal offenses traditionally known as malum in se. It also includes conduct which all responsible attorneys would recognize as improper for a member of the profession.
The conduct for which the Court of Appeals disbarred petitioner cannot, however, be so characterized. Some responsible attorneys, like the judge who refused to order petitioner disbarred from practice in the Northern District of Ohio, 249 F.Supp. 432 (1965), would undoubtedly find no impropriety at all in hiring a railroad worker, a man with the knowledge and experience to select relevant information and appraise relevant facts, to "moonlight"—work on his own time—collecting data. On the other hand some, like the officials of the Mahoning County and Ohio State Bar Associations, would believe that encouraging a man to do work arguably at odds with his chief employer's interests is unethical. The
"Any contract, rule, regulation, or device whatsoever, the purpose, intent, or effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee, shall be void, and whoever, by threat, intimidation, order, rule, contract, regulation, or device whatsoever, shall attempt to prevent any person from furnishing voluntarily such information to a person in interest, or whoever discharges or otherwise disciplines or attempts to discipline any employee for furnishing voluntarily such information to a person in interest, shall, upon conviction thereof, be punished by a fine of not more than $1,000 or imprisoned for not more than one year, or by both such fine and imprisonment, for each offense: Provided, That nothing herein contained shall be construed to void any contract, rule, or regulation with respect to any information contained in the files of the carrier, or other privileged or confidential reports."
"A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires."