In re Ruffalo

PETITIONER:In Re Ruffalo
LOCATION:Jewelry Store/Post Office Contract Station # 7

DOCKET NO.: 73
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 390 US 544 (1968)
ARGUED: Mar 04, 1968
DECIDED: Apr 08, 1968

Facts of the case

Question

Audio Transcription for Oral Argument – March 04, 1968 in In re Ruffalo

Earl Warren:

Number 73, In the Matter of John Ruffalo Jr., petitioner.

Mr. Spangenberg?

Craig Spangenberg:

May it please this Honorable Court.

This case comes before you on a writ of certiorari to the Court of Appeals for the Sixth Circuit and you will review an order of disbarring petitioner, John Ruffalo Jr. in that court.

That order was in turn based upon action of the Supreme Court of Ohio, that action being not here for review.

Ohio had suspended Ruffalo on two charges.

The Court of Appeals found that one charge justified disbarment from its roles.

The District Court had earlier reviewed, the Ohio disbarment had found that neither charge justified the striking of Ruffalo from the rules, but after the Court of Appeals opinion, the District Court entered a second order saying that although still convinced that he was right, he would bow to the judgment of his superior court.

Potter Stewart:

Mr. Spangenberg, was this a disbarment in the Ohio Courts?

It was —

Craig Spangenberg:

No, suspension, Mr. Justice.

Potter Stewart:

And there is suspension in Ohio, isn’t there or not?

Craig Spangenberg:

In words, no lawyer who has ever been suspended in Ohio has ever been reinstated as you may know.

But technically, after two years, he can apply for readmission.

He can take the bar again if he is given the right to, by the Supreme Court.

It is not total disbarment for life.

There is a right to reapply.

Potter Stewart:

After two years?

Craig Spangenberg:

After two years.

Potter Stewart:

This was a suspension —

Craig Spangenberg:

Yes.

Potter Stewart:

— in Ohio, but a disbarment from the Court of Appeals?

Craig Spangenberg:

That’s right.

Potter Stewart:

At the District Court also?

Craig Spangenberg:

That’s right, sir.

Earl Warren:

Did I understand that you say that never in the history of Ohio have they reinstated a man who was suspended for two years.

Craig Spangenberg:

That is true, Your Honor.

Earl Warren:

Is that so?

Craig Spangenberg:

There is one pending now where there are some speculation he may be, and so it will be unique.

But the case involves chiefly one Michael Orlando.

Craig Spangenberg:

He was a nightshift inspector, a car inspector for the B.& O. Railroad.

He bled the air from the break systems of incoming cars.

I make this point as to his non-trust, non-confidential, non-secret position because he has been described in other opinions as an espionage agent, as secret agent planted in the shops.

I do want to make it clear that in the sense of espionage, he had no access to anything worth extracting from company files.

He was an investigator.

He had general knowledge of railroad and useful to Ruffalo and the ability to talk to railroad men in railroader’s language which his useful to any lawyer who has a railroad case.

In the Ohio practice, charges are tried first before a panel of three lawyers.

Their record and findings are reviewed by a board of 17.

Their decision is reviewed in turn by the Supreme Court of Ohio which says it has final authority to say what the facts are and what should be done.

Potter Stewart:

Does the Ohio Supreme Court appoint those 17 people?

Craig Spangenberg:

They appoint the Board of Commissioners, that’s the 17.

Potter Stewart:

The 17?

Craig Spangenberg:

The panel comes from the Board.

Potter Stewart:

From those 17, for what?

Four-year terms, is it?

Craig Spangenberg:

I don’t know the length of the term.

It’s a long term.

They are not appointed for the case.

They are a standing board.

The original charges had been developed against Ruffalo by detectives of the American Association of Railroads presented to the Local Bar Association, which invoked the hearings.

Before the panel of three conducting the primary hearing, there were two charges that had to do with Ruffalo.

One, that Ruffalo through — through two charges that had to do with Orlando, one, that Ruffalo, through Orlando, had solicited the claim of a Sam Cotellesse against the P&LE Railroad, that was charge four.

Charge five, that Ruffalo had attempted to solicit through Orlando the claim of one Quinn against the B.& O.

Both charges were dismissed by the panel at the first level for one of any evidence.

During the hearing on those charges which were unsupported and later to be dismissed, Ruffalo, the respondent, was himself called for cross-examination under Ohio practice and testified before the panel, defending himself on the charge of solicitation through Orlando.

He said that Orlando was only an investigator who gave Ruffalo expert advice on general railroading practices, who located witnesses, sometimes interviewed them, sometimes — and often drove witnesses to courts so they would be available to testify.

Orlando investigated all of Ruffalo’s railroad cases, some of them were against the B & O.

No evidence was ever developed to any greater extent as to just what Orlando did.

For example, there is no evidence that he ever investigated a case in the yard in which he worked, certainly, no evidence that he ever investigated at night when he should have been on duty on his own railroad.

Ruffalo said he paid him piece work, $25.00 a day and expenses and the mathematic shows that he averages 10 days a month or thereabout which is consistent with Orlando’s own testimony.

Craig Spangenberg:

Orlando was called, he testified to the same extent.

After these —

How these two men came together?

How did Orlando come to be employed?

Craig Spangenberg:

No, the record doesn’t show that except that it shows that Orlando was a former client of Ruffalo’s and had worked for Ruffalo as an investigator for many years, not only in railroad cases.

He also did some work in trucking cases.

Potter Stewart:

Didn’t I see in the records, somewhere a testimony by Mr. Ruffalo, saying that one of the things he learned early including from his father, who is in the practice before him, that “If you’re going to be a successful plaintiff’s lawyer in railroad cases, you have to get yourself a railroad man.”

Craig Spangenberg:

Yes, he had said that generally (Voice Overlap).

If there’s intellectual curiosity about Orlando, he had worked for John’s father before him, John Ruffalo, Sr. was a well-known railroad lawyer.

Potter Stewart:

I think that’s in the record, Mr. Spangenberg, if I’m not mistaken.

Craig Spangenberg:

Yes, If i not mistaken.

And then after Ruffalo, Sr.died, Orlando continued to work for John, Jr. and had work for him since 1953.

That is in the record.

That was after this testimony came in that the panel added the charge, in these words that Ruffalo did conspire with Orlando and paid Orlando moneys for preparing lawsuits against the B.& O., the employer of Orlando, well knowing that the practice was deceptive and was morally and legally wrong as respects Orlando toward his employer.

I note here they didn’t say it was wrong for Ruffalo to prepare his case as well.

They said it was wrong for Orlando toward Orlando’s employer and therefore wrong for Ruffalo to use Orlando when Orlando was doing something that is disloyal to his employer.

At the time the charge was added, the examiner said that the only evidence he was depending upon is that from Ruffalo’s own lips to you, gentlemen, and then that from Orlando saying, “We don’t have anything else to support it”.

However, they did give Ruffalo time to answer the charge based on what he had already said in which was a fairly meaningless procedure since there was nothing to add or take away from it.

Now, I realized that —

Earl Warren:

What was their decision on that issue?

Craig Spangenberg:

The panel said that was wrong.

The Supreme Court of Ohio said that a man who would hire an employee and investigated to work against the interest of his general employer was not morally fit to be a member of the bar of the State of Ohio.

The Court of — the District Court said, “No”.

They thought it was a proper practice.

The Court of Appeals, said that if we — the profession of high-minded man must rely upon planting secret agents in the shops of those we call to account, we cannot hope to enjoy public respect and they would not find it unreasonable for Ohio to say that this would justify disbarment.

This is the one ground on which the Court of Appeals said that Ruffalo should be disbarred from the Court of Appeals.

So far as our position in this Court is concerned, I realized that you said in Theard that the state court finding brought title deeds of high respect.

But I realize also that in Selling, you said that you had a duty not to disbar unless constrained to do so by principles of right and justice.

We all recognized that to a trial lawyer of the law is his life.

If you take that from him, you have taken a great deal.

Craig Spangenberg:

But our position generally is that even a lawyer is entitled to due process when he is brought up on charges, and chiefly, that he ought to have the right to know in advance that what he is doing will be called to account before some reviewing court.

I would think also that this Court would look to the right of the client, the right of the public to have his case well-prepared.

Here, I realized that the Court of Appeals said, “Present rules of discovery will do all you need to do.”

I’m afraid the Court of Appeals’ judges who wrote that have never been down on the battleground trying cases.

You can’t have discovery on the federal practice until you file the petition, you can’t file the petition unless you have some idea what the accident was about, and indeed, discovery presupposes that we both investigate.

The defendant then asked me what I have found out, I asked him what he has found out.

To give discovery to the defendant, I must do some preparation.

As a practical matter too, it helps when you prepare an interrogatory to know what the information is you’re trying to seek, and I would think that a blind reliance on no preparation at all, with the simply list of interrogatories after you filed a lawsuit on which you don’t know whether you ought to believe or not, does not really serve the client well.

Our Canon of Ethics would deny to railroad employees, in the Sixth Circuit at least, effective legal assistance can hardly be justified unless it really involves some basic immorality.

But let’s take a simple example, Your Honors.

Suppose a widow calls me, I do some railroad work, not a great deal, but some, says her husband has been killed on the railroad.

She has no real knowledge what happens.

She’s heard some rumors, in those cases and they have happened.

It’s commonplace to call a former client who you know works on the railroad and ask him if he will come in and tell you what he knows, what has he heard, and what area of the yard did it happen, what track, what generally is the story around the yard as to how the accident happened.

And these men generally are willing to come in but always with a caveat.

I’ll have to mark off if I do, “Will you pay me for my time?”

Well, of course, you’ll pay him for his time.

In the same way in an admiralty case who will pay a seaman first time to come in and tell us what is the layout of the boat.

What kind of tackle?

What kind of equipment was involved in the accident?

And lawyers do pay money to employees of corporate defendant for information necessary to get some knowledge of the case and to lead them into further exploration.

But the simple act of like paying an employee of say the River Terminal Railroad, to come in and tell what he has heard, would now be condemned by the holding of the Supreme Court of Ohio because there is no question but that it is a payment of money to a general employee for information helpful in preparing a case against that railroad.

Abe Fortas:

But isn’t there a narrow point here which is — that is alleged in a way as I understand it, that Orlando for a pay advised Mr. Ruffalo with respect to cases against Orlando’s employer.

Craig Spangenberg:

Yes, Your Honor.

Abe Fortas:

And I suppose —

Craig Spangenberg:

I am presupposing —

Abe Fortas:

That raises a real problem, doesn’t it, whether or not it’s grounds for disbarment that does ordinary practicing lawyers mind, that would raise a real problem, wouldn’t it, Mr. Spangenberg?

Craig Spangenberg:

I’m giving you the same example and that the widow said her husband was called on the River Terminal.

The only one who’ll know about that is a River Terminal employee and which I’m quite likely to find one and ask him to come in and tell me about it and pay him the first time.

Abe Fortas:

Would you think it’s all right for lawyer, I don’t want to personally any of these questions, would you think it would be all right for a lawyer having a case against the B.& O. Railroad who calls some employee of the B.& O. for advice or assistance?

Craig Spangenberg:

Yes, I think he would do better to call a B.& O. man than a Pennsy man if he wants to know what the track layout was, where the latter goes, what the rip track — where the rip track located and so forth.

A yard layout should do get from a man who works in the yard or who has worked in the yard.

Byron R. White:

Then so far as the relationship between employer and employee is concerned, would it made any difference to the Supreme Court of Ohio and if there are no money in past hence?

Craig Spangenberg:

Apparently so, they made a good deal of the point of the statute, Section 60 of FELA that makes it illegal to try, for the railroad to try and keep its employees from giving information as written in terms of voluntarily furnishing information.

So they said that although Orlando, as an employee, could voluntarily give the information he couldn’t be paid for giving the information to Ruffalo.

Byron R. White:

You mean the payment makes it involuntary?

Craig Spangenberg:

Yes, it’s all they said.

You’ll find that in the Supreme Court of Ohio’s opinion where that point was raised.

Byron R. White:

As far they are concerned, an employee of a company is certainly free to volunteer information to an attorney who is —

Craig Spangenberg:

Yes, Your Honor.

Byron R. White:

— suing the railroad on account of injuries to a fellow employee?

Craig Spangenberg:

Yes, Your Honor.

They said they can, they can take money for it or be paid for doing it.

William J. Brennan, Jr.:

Well, was that at the ground taken by the Court of Appeals Mr. Spangenberg?

Craig Spangenberg:

No.

No the Court of Appeals simply —

William J. Brennan, Jr.:

I take it that there’s nothing — no matter what the outcome of this case, even favorable to your client —

Craig Spangenberg:

Pardon?

William J. Brennan, Jr.:

Even if the outcome of this case is in favor of your client, this is not going to help him, is it?

The disbarment —

Craig Spangenberg:

Please do not be misled, Mr. Justice.

The District Court said that he could see nothing wrong with it and that Ruffalo’s right to practice in the Federal District Court would be upheld.

That’s where FELA cases are generally tried.

William J. Brennan, Jr.:

Yes, but they may be brought also in the state courts.

Craig Spangenberg:

Yes, they may be.

William J. Brennan, Jr.:

But the point is, the only point I’m making is, I don’t quite see the relevance or the bases upon which the Ohio Supreme Court acted here.

If we agree with you that in any event, the Court of Appeals was wrong, we might reverse here even though we might think that the Ohio’s Supreme Court’s basis was supportable.

Craig Spangenberg:

Yes.

William J. Brennan, Jr.:

Is that right?

Craig Spangenberg:

You could do that.

Craig Spangenberg:

In which case, Mr. Ruffalo would be reinstated to practice in the Court of Appeals for the Sixth Circuit, there is no doubt from the opinion in the District Court that he would welcome this opportunity to say to reinstate Ruffalo in the federal court.

William J. Brennan, Jr.:

Now, what’s the basis — to what power of review are you appealing?

Craig Spangenberg:

The power of this Court to review the Circuit Court — the Court of Appeals for the Sixth Circuit.

William J. Brennan, Jr.:

Well, I mean on what grounds, supervisory power or what?

Craig Spangenberg:

Yes.

William J. Brennan, Jr.:

Just the general power of the Court, to supervise —

Craig Spangenberg:

To review an order of the Court of Appeals, which strikes a lawyer from its roles, in the sense that you do have power of review as part of your general supervisory power of that Court.

William J. Brennan, Jr.:

You mean that is the — then on the merits of any disbarment in the District Court or the Court of Appeals, your suggestion is that we may what?

Reconsider the record de novo and to say they are or not wrong or what?

Craig Spangenberg:

No, I do not suggest — I think that you could if you chose to.

I think you would not choose to.

I think you would review the record as it is in the same way that the District Court and the Court of Appeals merely reviewed the Ohio findings.

You are entitled to review that Ohio findings and say to the Court of Appeals —

William J. Brennan, Jr.:

There is something of — a rather large autonomous discretion, isn’t there, in matters of disbarment in the courts that have that function?

Craig Spangenberg:

Well, I do not want to yield the point completely, Mr. Justice, but I would say that if this Court wrote an opinion saying that in its opinion, his conduct is not shameful, does not show bad moral character, that it will certainly lead the District Court to follow the superior court that is superior to the Court of Appeals which the District Court now feels constrained to follow.

William J. Brennan, Jr.:

Is Mr. Ruffalo member of this bar?

Craig Spangenberg:

Yes, he is, Your Honor.

You may consider this —

William J. Brennan, Jr.:

Well, I take it if we affirm here, we then have to contemplate proceedings to disbar him here, wouldn’t it?

Craig Spangenberg:

I have waived notice in my brief and in the petition for writ, I’ve said that you may consider this as your own hearing on whether you will disbar Mr. Ruffalo out of this Court.

I certainly do not ask you to hold a separate hearing on the matter that you will consider here thoroughly on the same record.

Earl Warren:

There is no due process question here?

Craig Spangenberg:

There is certainly a due process question here, Your Honor, and that there is —

Earl Warren:

Well, I’m not questioning.

What I understood you to answer Justice Brennan, that it was just our supervisory power that was involved.

Craig Spangenberg:

Well, I thought he was addressing to whether you could now go back to the Supreme Court of Ohio.

I am not sure that you can, perhaps you can.

Earl Warren:

But there is a due process question here?

Craig Spangenberg:

I would like to come to that, Your Honor, and state that in Ohio, misconduct is a defined offense, defined —

Byron R. White:

Well, are you talking of — are you saying that the due process question is involved in the Ohio judgment or in the Court of Appeals?

Craig Spangenberg:

In all judgments.

I say that he was denied due process in Ohio.

He was disbarred in complete contradiction of every fundamental concept of due process.

Byron R. White:

But should you confine your argument to due process issue in the Court of Appeals?

Craig Spangenberg:

Well, Your Honors, you have said in Theard and in Selling that you would review the state court proceedings to see whether or not the respondent received due process in the state court.

This against the argument generally made its unseemly to the federal court to retain on its roles, a lawyer who has been disbarred by the state.

It is rather more unseemly to strike him from your roles if he was disbarred from the state in complete contravention of our fundamental notions of due process because you are a Constitutional Court.

William J. Brennan, Jr.:

Well, I suppose, you mean in so far as the Court of Appeals may have reached its conclusion based upon what the Ohio Supreme Court did, are you arguing that because he was denied due process as you submit in the state proceeding, then necessarily, the Court of Appeals could not have relied upon the state judgment in any respect, is that it?

Craig Spangenberg:

Yes.

I say also that — I would hope this Court would reverse at least the language of the Court of Appeals which said that due process does not require bar associations to fashion that Canon of Ethics, to define the impermissible conduct in advance.

What the Court of Appeals said was, our profession is not summarily and ethically naïve as to need advanced definition of what is and what is not the impermissible behavior.

To me, this is a critical point.I think lawyers do need advanced definition from some source.

It may be that the wrong is so universally recognized that you need not spell it out, but for a course of conduct that has been followed by lawyers from time in memorial, I think you do need advance definition when you’re going to say, from now on this is improper and we will disbar a man who did it before we ever said it was improper.

To say that you cannot pay for information is to say that every district attorney in the United States should be disbarred, I would assume, if he uses the information that comes from a paid informer who actually breaches someone’s trust which isn’t much go as much deeper than this business of using a simple yard laborer as an investigator.

And note, Ohio had said that misconduct, as a defined offense, consists of a violation of the Canon of Professional Ethics.

There are 47 of those who any lawyer could read through the 47 and know generally what he could do and what he could not do.

But if they say this is misconduct, and then they do, misconduct is defined as the term as used herein, says Ohio, as a violation of the Canons of Professional Ethics.

No one has been able to find anywhere in all of the 47 Canons where this kind of views of an investigator violates anything or even comes close to violating a Canon of Ethics.

Now this was the argument I made in the Court of Appeals, saying it is not wrong to which the Court of Appeals said that due process doesn’t require the Bar Association to fashion a Canon of Ethics in advance on this ground that our lawyers are just not ethically naïve.

I quote the Court exactly in language that I’ve said in my brief.

I thought it was rather prim, if a lawyer can read all of Draco’s legal ethics, which is the leading text, read all the Canons and read every decision in the United States and find no word anywhere that hiring a man like Orlando is wrong, then on what — how does due process get satisfied?

How do you reconcile this with Lanzetta, with Connolly, with Giaccio, with Bouie where you’ve said in every kind of proceeding, where there is to be some criminal or quasi-criminal penalty, an advanced definition is needed.

And particularly, when you give an advanced definition, this is your decision in Bouie of course, if you give an advanced definition as Ohio has saying, it’s a violation of a Canon of Ethics, how can you then say you have satisfied due process when retroactively you expend and say any kind of conduct that we deem to show who are moral character will be enough to justify disbarment even though it doesn’t violate the Canon of Ethics?

Thank you, Your Honors.

Earl Warren:

Mr. Koykka?

Thomas V. Koykka:

May it please the Court.

We should have in mind what it is that John Ruffalo was disbarred for.

I can give that to the Court most clearly by quoting to you what it was that the Court of Appeals said.

The Court of Appeals said that one who hires an experienced lawyer, and here was a lawyer John Ruffalo who had 18 years of experience at the bar practicing in Youngstown, Ohio, to act as an undercover agent to obtain evidence and information for use in suits against his own employer does not exhibit the fair character and the integrity which must be the mark of a lawyer.

The Court said, “We do not believe we should say to today’s society of whom we ask that our profession be held in high regard that we do not have the ability to represent our clients except through planting secret agents in the shops of those we call to account in the Courts.

Thomas V. Koykka:

If this kind of espionage is — has become a way of life in some of today’s business, more is expected of a lawyer, then that they conform to the minimal standards of the marketplace.

William J. Brennan, Jr.:

Mr. Kokkka, what’s the reference to undercover and secret — what is the evidence in that?

Thomas V. Koykka:

Yes, I walked to turn to that, Mr. Justice Brennan.

May I first, before I answer it, point out that the Court of Appeals disbarred this man because he was dishonest.

I want to return to that later.

I’ll now return to your question, Mr. —

Hugo L. Black:

Because he was what?

Thomas V. Koykka:

Because he was dishonest and that point, I want to develop later but first, I want to answer the question —

Earl Warren:

But what was the dishonesty this one that you’re making a point here?

Thomas V. Koykka:

Yes, the dishonesty was enlisting an employee in the very camp of the party he was suing to develop evidence against that party.

No one is saying to this lawyer that he may not fully investigate cases.

What the Court of Appeals said to this lawyer is that a lawyer does not go into the camp of the party he is suing and then list —

William O. Douglas:

Counsel, that’s what the United States did in the Hoffa case.

Thomas V. Koykka:

Your Honor, that — the United States did not quite do that.

In the Hoffa case, if the evidence had been presented here, that in the Hoffa case, the evidence obtained by the secret agent was used in the Test Fleet case.

I think you would have had an entirely different question.

But the Court itself made the distinction in the Hoffa case that there, the evidence that was obtained —

William O. Douglas:

I wasn’t talking about that.

I’m just talking about the situation, the practice at present.

Thomas V. Koykka:

That is true, but may I say to that, that different policy considerations to begin with come into play there and that you are dealing with a criminal elements who do not regard and have no respect for the law.

Now, to apply that same analogy here, no one is saying to Mr. Ruffalo, that he may not employ an undercover agent if he wishes to.

William O. Douglas:

Well, if we have a constitutional question, I wouldn’t think it would turn whether the man is a rascal, or a crook, a churchman, or a fine and outstanding citizen, because all the Constitution says, “Any person.”

Thomas V. Koykka:

But the Court permitted the use in the Hoffa case of that evidence which was obtained by the undercover agent.

Earl Warren:

He was an employee of Hoffa.

William O. Douglas:

Well, he was — I understood he was not an employee of Hoffa but the evidence was not used to convict Hoffa.

It was used to convict the person who sought to influence the jury.

It was not used in the prosecution of the criminal case against Hoffa.

It’s an entirely different situation, if Your Honor, please.

Earl Warren:

You mean this — the testimony of this employee of the Teamsters Union was not used in the Hoffa case?

Thomas V. Koykka:

Not in the — not in the Test Fleet case.

Earl Warren:

You mean the criminal case against Hoffa?

Thomas V. Koykka:

Yes, it was not used in that.

That was the case which was on trial and it was not used in that case and that was the distinction that the Court made in that case.

That it was evidence that was used to convict for the attempted jury tampering.

Earl Warren:

Who were the defendants?

Thomas V. Koykka:

The defendants were Hoffa and the others but it was not in the Test Flee case that the evidence was used.

Earl Warren:

What about if it’s used against Hoffa —

Thomas V. Koykka:

Yes.

Earl Warren:

— as this testimony was used against the B.& O.?

Thomas V. Koykka:

This testimony was used against the B.& O., yes but there is a difference, we submit to Your Honors, in a situation that arises in a civil case and one that arises in a criminal case, I think different standards are applicable, and I say to your —

Earl Warren:

What difference in ethics is there between the criminal and the civil case?

Thomas V. Koykka:

The first is that you are dealing with a criminal problem with an element which does not respect the law.

That is point number one —

Earl Warren:

That there are a lot of people who were charged, who were not necessarily guilty?

Thomas V. Koykka:

That is true but we are not saying to this man that he may not use an undercover agent, and the Sixth Circuit didn’t say that.

It said, “You may not subvert the employee of the party you were suing to that purpose”.

Thurgood Marshall:

Mr. Koykka, you’ve got now — you’ve got two justices that would like for you to explain what do you mean by undercover, there are two of us who now —

Thomas V. Koykka:

Yes, undercover — let me put it this way.

When the charges originally were laid against Mr. Hoffa, the charge of hiring the undercover agent was —

Thurgood Marshall:

No (Voice Overlap) undercover agent — and you said that Orlando —

Thomas V. Koykka:

Yes, Orlando was –-

Thurgood Marshall:

— was an undercover agent.

Is that your language?

Thomas V. Koykka:

Yes, it is.

Mr. Orlando was the undercover agent.

Thurgood Marshall:

What is there in the record to show that he was an undercover agent?

Thomas V. Koykka:

It is the testimony of Mr. Ruffalo and Mr. Orlando.

I must —

Thurgood Marshall:

That it was a secret.

That it was a secret that he was representing —

Thomas V. Koykka:

Yes, it was, Your Honor.

He was — let me go back to say that this was not a charge originally made.

Byron R. White:

I thought he actually transported witnesses to the court during that time.

Thomas V. Koykka:

That is one of the things that he did but it wasn’t the thing on (Voice Overlap) was disbarred.

Byron R. White:

(Voice Overlap) do that, isn’t it?

Thomas V. Koykka:

No, I’m not referring to that.

But when the charge —

Byron R. White:

(Voice Overlap) that’s the trouble he —

Thomas V. Koykka:

I beg your pardon?

Byron R. White:

I agree with you.

You were not referring to Orlando.

I would suppose you would before you call him in an undercover agent.

Thomas V. Koykka:

Well, I’m trying to get to the basis for calling him an undercover agent that initially, when the charges were brought, there was no charge that he had hired Mr. Orlando to investigate cases.

The charge was that Orlando was soliciting lawsuits for him two charges of that and so the relationship between Orlando and Ruffalo was a matter of critical concern to the commission.

Now, Mr. Ruffalo came in and said that, “No, he is not soliciting cases for me,” but testified that he was doing something much worst.

He was in my —

Abe Fortas:

Excuse me.

But weren’t those charges of solicitation dismissed?

Thomas V. Koykka:

Those charges were, but there were other charges of solicitation that were sustained by the commissioners but not sustained in the state court.

Abe Fortas:

All right but however that may be, as the matter now stands, there is no finding that any — before us, that Orlando or anybody else are not authorized to do so, not properly authorized to do so solicited business for Ruffalo, is that right?

Thomas V. Koykka:

That is right.

No such finding here.

But in explain — in defending against that charge, Mr. Ruffalo testified defense that we believed demonstrated much more serious conduct that Ruffalo was investigating cases against his own employer and the commissioner said, “What records –”

William J. Brennan, Jr.:

All right, now why is that undercover (Voice Overlap) —

Thomas V. Koykka:

I am trying to, but I have to give Your Honors, the background.

William J. Brennan, Jr.:

Yes.

But so far, your whole emphasis is that he was investigating cases which were Mr. Ruffalo’s office and which his employer was the defendant.

That’s what you told so.

Thomas V. Koykka:

That’s right.

The Baltimore & Ohio was the defendant.

William J. Brennan, Jr.:

Well, is that all there is to the case?

Thomas V. Koykka:

No, it isn’t.

Not at all, Your Honor.

He was asked to produce his records to show this relationship and he said, “I don’t have any records.”

“Why?”

“I destroyed them,” and he said that, “I paid my other investigators by check.

I paid Mr. Ruffalo in cash.”

Why?

Hugo L. Black:

Is he disbarred — is he disbarred for that?

Thomas V. Koykka:

He is disbarred for that very thing for hiring secretly —

Hugo L. Black:

Disbarred for destroying his checks?

Thomas V. Koykka:

No, no, Your Honor.

Hugo L. Black:

But what does that have to do with it?

Thomas V. Koykka:

It has this to do with it, that he then was asked why and he said, “And this is what makes him an undercover agent.”

He said, “We didn’t” — this is Mr. Ruffalo, “We didn’t want it to be known in case any question came out about it that Orlando was working for me.

We kept it that way for the particular fact that he was working for the B.& O. Railroad and we didn’t want to get him involved,” and that, Mr. Justice Brennan, I say, is evidenced that makes him an undercover agent and it was (Voice Overlap)

Thurgood Marshall:

It could be simply that he didn’t —

Abe Fortas:

And that was the evidence of dishonesty?

Thurgood Marshall:

Mr. Orlando didn’t want to get fired?

Couldn’t that be —

Thomas V. Koykka:

It could have been but that —

Thurgood Marshall:

Was that illegal?

Thomas V. Koykka:

It is — it does not —

Thurgood Marshall:

Was that illegal?

Thomas V. Koykka:

It does not lessen the lawyer’s obligation not to get a layman into that kind of position.

Thurgood Marshall:

Well, what kind of a position is it?

Is — could Orlando — I thought you said a minute ago that it would be all right if Orlando had volunteered to do this and have done it for nothing.

Thomas V. Koykka:

No, I did not say that, Your Honor.

That was Mr. Spangenberg who made that argument.

Thurgood Marshall:

Well, I —

Thomas V. Koykka:

I–

Thurgood Marshall:

— assume that you agree with it.

Thomas V. Koykka:

No, I do not agree with it.

I say —

Thurgood Marshall:

You mean that if an employee of a railroad comes into a lawyer’s office and says, “I’m willing to give you information.

Not confidential but I’m willing to give you information as to how an airbrake works,” would that be wrong to the lawyer to take that information?

Thomas V. Koykka:

It would not be wrong but that is not what was done here.

Here was a long course of employment of this man, Orlando?

Thurgood Marshall:

How long?

Thomas V. Koykka:

How long?

Initially, when the charge was laid, when this information came before the panel, the charge was that you did this from 1953 until 1961 and —

Thurgood Marshall:

How long had the association of the railroad had been investigating Orlando?

Thomas V. Koykka:

I do not know, Your Honor.

And to that question, I would give the same answer as did the Court of Appeals for the Sixth Circuit that if there was a wrong on the part of this lawyer, as we believe there was, it cannot be excused by any conduct that may have been engaged in that was improper by anybody else.

Thurgood Marshall:

My question is, that if the association of railroads had been investigating Orlando and Ruffalo, let’s say five or more years, well at least during that period, Orlando wouldn’t have been a “secret” agent?

Thomas V. Koykka:

They were investigating on the business of soliciting and not — it never apparently occurred to them that he was actually investigating cases against the railroad because that fact never appeared until Mr. Ruffalo said, “That is my defense to the charge of solicitation.”

Thurgood Marshall:

And then you amended the charges?

Thomas V. Koykka:

Then the charge was amended and the panel made perfectly clear that he could have whatever time he needed to answer that charge and indeed the hearings did not close until eight months later.

Mr. Ruffalo’s defense to that charge was that it’s all right for a lawyer to do that kind of thing and we do not think that that is permissible of a lawyer.

We say that —

William J. Brennan, Jr.:

Was he also an — in your submission, was Orlando an undercover agent as against all the other railroads for whom he investigated?

Thomas V. Koykka:

That I don’t know, and the record does not show.But it does show that —

William J. Brennan, Jr.:

Well, doesn’t it show that he did the same kind of work?

I understood from Mr. Spangenberg that —

Thomas V. Koykka:

That he —

William J. Brennan, Jr.:

— he investigated all the railroads.

Thomas V. Koykka:

Investigated all the railroad cases.

William J. Brennan, Jr.:

Against all railroads, yes.

Was he an undercover agent as to those other railroads?

Thomas V. Koykka:

I don’t know.

Thomas V. Koykka:

The record does not indicate whether that was disclosed to the other railroads or not, so I am unable to answer.

Abe Fortas:

You don’t mean to suggest that a lawyer would have to disclose to the other railroads that he had an outside investigator and give him the name?

Thomas V. Koykka:

Oh!

No, not at all, Your Honor.

So long —

Abe Fortas:

Wait, just a minute.

You’re not suggesting that there was anything improper about employing Orlando for purposes of investigating railroads, other than accidents on railroads other than B.& O.?

Thomas V. Koykka:

Subject to one possible condition.

I think that it is wrongful conduct on the part of a lawyer to hire even Orlando as an employee of Baltimore & Ohio Railroad to investigate other railroads unless that is disclosed to Orlando’s own employer, that’s the only reservation I would put up.

Abe Fortas:

That is quite a doctrine.

Do the courts below adopt that doctrine?

Thomas V. Koykka:

No.

No, Your Honor.

But —

Abe Fortas:

Let me ask you another question.

Thomas V. Koykka:

Yes.

Abe Fortas:

How many — in how many instances according to the record did Orlando investigate claims against the B.& O., his employer?

Thomas V. Koykka:

The record does not show the number he investigated but it was admitted by Mr. Ruffalo frankly that he did investigate Baltimore & Ohio claims.

Abe Fortas:

The records didn’t show there was one or a hundred.

Thomas V. Koykka:

Well, there are at least three that are mentioned in the record.

Abe Fortas:

Against the B.& O.?

Thomas V. Koykka:

Against the B.& O., yes, Your Honor.

Abe Fortas:

And did those relate to the area of Mr. Orlando’s own employment for the B.& O.’s?

Does the record show?

Thomas V. Koykka:

The record does not show.

And may I say, with respect to that — the point suggested by that question in the argument made by Mr. Spangenberg that it seems to us not to be an answer to say that this lawyer or that Mike Orlando did not investigate in any area where — which involves his own work nor is it an answer to say that he did not filch record from the Baltimore & Ohio Railroad and that he had no access, that we say is beside the point as Mr. Judge Edwards who dissented in the Court of Appeals said, “The employment of a — in dealing with that specific argument made there that his work involved no supervisory responsibilities.”

Judge Edwards gave this answer and I submit that it is the answer this Court ought to accept, “I cannot avoid concluding that Orlando’s access to the B.& O. property and personnel would be of potential value to respondent and that it would sometimes be impossible, probably even for Orlando to know when he was working for the railroad and when he was investigating for respondent.”

Now, I started to say that this relationship started in 1953 and when the charge was first made, Mr. Ruffalo said, “I want you to amend that charge.”

He had been subjected to discipline in the Ohio Courts for misconduct in 1957 and he said, this charge should begin from 1957 and go on forward and whether the commission could have gone earlier than that, it’s not a matter of concern here because the commission exceeded to that request and the charge was amended, the charge that this relationship and the investigating cases against his own employer started in 1957 and continued until midyear in 1961.

Byron R. White:

So you are going to draw a line then between the continuous course of dealing with an employee because I don’t suppose you would deny that a lawyer in investigating his client’s case may call on fellow employees and a fellow employee may give him as much information as he has about the accident.

Thomas V. Koykka:

Of course, he may.

That that —

Byron R. White:

And let’s assume –- let’s assume that that lawyer constantly goes to a particular foreman, a yard foreman where almost these accidents occur, the yard foreman readily and voluntarily gives in all the information he had.

A lawyer must be able to do that.

Thomas V. Koykka:

Well, you — if that is what he is doing, I think the lawyer has a right to do that but that is not this case.

Byron R. White:

What’s the line you draw?

Thomas V. Koykka:

The line is hiring an employee as a regular course of conduct.

And I think it would be wrong for him to say, “I want you to investigate this case against the railroad for me in this one instance.”

I think that would be wrong but that isn’t this case.

But if he merely says, “There has been an accident on the railroad.

I want you to tell me whatever you know about it”.

That would be perfectly proper.

Byron R. White:

Should we say the yard foreman — if the yard foreman says to him, “Sorry, I don’t know anything about that,” and the lawyer said, “Well, could you please find out about it for me and tell me whom I may talk to.”

And that yard foreman investigates and calls him up the next night and says, “The fellows who really know about this are John and Jack and they tell me this,” and that’s wrong.

Thomas V. Koykka:

Well, if it were in the one case, I think that no lawyer would be disbarred for that.

But when he embarks on the course of conduct that this lawyer did, then I say that he has violated what is expected —

William J. Brennan, Jr.:

How many times does he have to do it, the course of conduct?

Thomas V. Koykka:

He has — well, when he does it over a period from ’57 to ’61.

William J. Brennan, Jr.:

Well, how many cases against the B.& O. does this record show Orlando helped investigate?

Thomas V. Koykka:

There are at least three that are mentioned.

Earl Warren:

In seven years?

Thomas V. Koykka:

Well, there was no inquiry as to how many cases there were.

The inquiries —

Earl Warren:

Why didn’t you ask him?

Thomas V. Koykka:

I — well, I didn’t ask him because I wasn’t there but he was —

Earl Warren:

Why didn’t — why didn’t those who were prosecuting asked him?

Thomas V. Koykka:

I would say obviously, they did not inquire into that because in their view to hire a man to do that kind of thing, not go to him casually to say, “Tell me about this accident.”

That it — the panel believed and I believe is incompatible with the conduct of a lawyer.

It is in — Oh!

May I say, this continued until midyear 1961, July, when the Baltimore & Ohio fired Orlando, his services for Mr. Ruffalo also terminated at the same time.

Byron R. White:

Well, I take it that you disagree with the other side of saying that the Railroad Adjustment Board views this practice as not a sufficient reason for firing.

Thomas V. Koykka:

The Railroad Adjustment Board does not so view this practice in the very case that they cite.

What the Board did was to say that a railroad employee may tell whatever he knows about an accident but that, in that case, the firing was proper because the employee there took a stranger onto the railroad premises and took a picture of a structure that was involved in a suit.

Byron R. White:

That’s different too, isn’t it?

Thomas V. Koykka:

Well, he took a picture —

Byron R. White:

That’s different from just getting information from it —

Thomas V. Koykka:

Well its —

Byron R. White:

— and investigation, isn’t it?

Thomas V. Koykka:

The only difference is that there — was in the form of the information that was brought back rather than by word of mouth, there it was brought back by —

Byron R. White:

Do you have any Railroad Adjustment Board cases that sustain firings on facts like these?

Thomas V. Koykka:

No, but what the Board said in that very case, it said only that he has a right to tell what he knows about an accident, period.

And I say that cannot be read to justify this.

Next, the only case that I know of where the Railroad Adjustment Board held that an employee was improperly fired was a case where also the employee took the stranger onto the premises, took a photograph of a spiral stairway, permitted the stranger to take the photograph of a stairway which was a subject of a lawsuit.

After all, that could be a more truthful representation on what was there on the photograph and the employee said now, “I wasn’t warned and there was nothing in this employment contract that said I couldn’t do this kind of thing,” and the National Railroad Adjustment Board said, “You shouldn’t have been fired.”

The Court — District Court reversed that and the Court of Appeals for the Fourth Circuit reversed or held that it was properly reversed saying in an opinion Mr. Judge Gilliam said, “What could he have done that would have been more detrimental to his employer, than assuming the employ — than assisting the employer’s adversary in litigation” and that is exactly what Ruffalo did in this case.

Hugo L. Black:

May I ask you one or two questions?

Thomas V. Koykka:

Yes.

Hugo L. Black:

Is there any law passed by the legislature of the State of Ohio against it?

Thomas V. Koykka:

None that I know of.

Hugo L. Black:

Has there ever been any attempt to get one?

Thomas V. Koykka:

Not that I know of.

Hugo L. Black:

Has the Supreme Court of your state ever held before that a man could be disbarred on this showing?

Thomas V. Koykka:

So far as I — so far as I know, there has been no like case.

Hugo L. Black:

Well, I’m not asking if there’s been any like it.

What I’m asking you is have they ever done it?

Thomas V. Koykka:

Well, not that I know of.

Hugo L. Black:

Have they ever disbarred a man on a showing like this.

Thomas V. Koykka:

Not that I know of.

Hugo L. Black:

Do you — have you investigated other states?

Thomas V. Koykka:

Yes.

Hugo L. Black:

How many states have a law that makes this a cause for disbarment?

Thomas V. Koykka:

Well, I don’t know of any state that has a law to that effect but I can give you a case that isn’t cited in the briefs but decided in Rhode Island where the lawyer employed, first an investigator in a divorce case to investigate the — on behalf of the wife, and then after that service had terminated, the lawyer on the other side, after a appreciable distance of time —

Hugo L. Black:

Well you don’t think that’s like this case, do you?

Thomas V. Koykka:

Well —

Hugo L. Black:

As a matter of fact, what you have is, you keep saying he violated something and he did something wrong.

What you have is a situation in which the policy-making body of your state has never outlawed it, your court has never outlawed it.

The Bar Association has never outlawed it and nobody else has ever outlawed it.

Thomas V. Koykka:

No, I would not accept that, Mr. Justice Black.

Hugo L. Black:

Oh!

Where could you say it’s outlawed?

Thomas V. Koykka:

I say that this lawyer violated the first duty that the lawyer —

Hugo L. Black:

That’s because you think it’s wrong.

Thomas V. Koykka:

Because I —

Hugo L. Black:

That’s because you think it’s wrong.

Thomas V. Koykka:

And I —

Hugo L. Black:

What law book do you have that says it’s wrong?

Thomas V. Koykka:

The first Statute of Westminster enacted in 1275 that says, “That any sergeant or lawyer who engages in deception against not only the court but against the party.

Hugo L. Black:

You’re citing the Statute of Westminster in order to justify disbarring a man in 1968 in Ohio which has no law against what he did.

Thomas V. Koykka:

If, Your Honor, please, that Statute of Westminster has come down to us into our present Code of Ethics, the Canons.

Canon 41 says that the lawyer owes a duty not only to his client.

He owes a duty to the Court and he owes a duty to the other party —

Hugo L. Black:

Do you think any man ought to be disbarred or any man ought to be prosecuted and convicted of a crime where there has been no clear legal statement made in advance that that is the law?

Thomas V. Koykka:

In my view, there is a clear statement in —

Hugo L. Black:

Where?

Thomas V. Koykka:

— in the Canons.

In Canon 41 that said —

Hugo L. Black:

That’s what you’re relying on, Canon 41?

Thomas V. Koykka:

Canon 41 plus the oath that I heard lawyers take this morning that he will conduct himself, demean himself uprightly and according to law.

Indeed the —

Hugo L. Black:

According to the law, that’s right.

Hugo L. Black:

But isn’t he entitled to know what the law is?

Thomas V. Koykka:

The only —

Hugo L. Black:

So you don’t claim that anybody could have known this was against the law in Ohio, do you?

Thomas V. Koykka:

I do, Your Honor.

Most sincerely, I do.

Hugo L. Black:

That’s because you think it’s wrong?

Thomas V. Koykka:

I think it is wrong because of what I read, for example, in the rule of this Court, “The only standard this Court lays down for disbarment is conduct unbecoming a member of the profession.”

I think that the standards that are established for the legal profession by this Court in its rule, the same rule is enjoined upon the Courts of Appeal in the new rules that is going into effect and by the decisions of our own Supreme Court where our Court has held that any lawyer brings disbarment or discipline upon himself for — for conduct which brings discredit upon himself or the Courts.

Now —

Hugo L. Black:

Do you think the home owner could have his home taken away from him by statement that he had done something which the law did not forbid?

No, I do not.

We are talk —

Do you think he would be entitled to due process to protect his property?

Thomas V. Koykka:

I think —

Hugo L. Black:

What about his lifeblood in the law practice?

Thomas V. Koykka:

I think this lawyer was accorded due process and I say that if he had read the literature on discipline, he would have found that there are many cases the country over where lawyers have been disciplined even though there was no Canon that in so many words said that conduct.

Hugo L. Black:

In other words, he had been disciplined whether he had not known that it was against the law?

Thomas V. Koykka:

Well, because a lawyer is expected to adhere to high standards, the standards so high.

Hugo L. Black:

Standard is a big, big question.

What is a high standard for you or are not be a high standard for somebody else.

Thomas V. Koykka:

Well, they —

Hugo L. Black:

I must confess that I cannot see anything wrong, whatever, in a lawyer hiring somebody to do get some evidence for him, whenever he would.

Thomas V. Koykka:

Against his own employer and that, Your Honors, we say is conduct unworthy of a lawyer.

With that, we submit the case —

Earl Warren:

Mr. Koykka, you made this an important issue in your case, the fact that this lawyer had failed to use a customary practice in paying this employee that he paid the others by check and he paid this one in cash so that other people would know it.

How do you distinguish that from the employment by the government of Partin in the Hoffa case where they use every kind of circumvention they could think of to prevent anybody from knowing that public funds were expended for this purpose?

Thomas V. Koykka:

Well, I don’t like you getting to the division on the court on that subjective question —

Earl Warren:

No, you don’t have to get the division just to answer my question.

Thomas V. Koykka:

But I think there is.

I think there is a difference in that, as I read that opinion, there was not an employment of a person in the employ of the other party.

Thomas V. Koykka:

I did not understand that the person was an employee of the —

Earl Warren:

Wasn’t Partin an employee of the Teamsters Union of which Mr. Hoffa was the president?

Thomas V. Koykka:

He was an officer of the Teamsters Union but I don’t believe that he was an employee of Mr. Hoffa was the president?

Earl Warren:

Do you think that if he had been that the government would have been guilty of the same kind of misconduct and immorality that occurred in this case?

Thomas V. Koykka:

I think that wrong is in suborning the employee of the party you are suing.

Now, if the government did in that case suborn an employee of Mr. Hoffa and I did not so understand.

William J. Brennan, Jr.:

It suborn in the sense of having him falsify something?

Thomas V. Koykka:

No.

William J. Brennan, Jr.:

Why are you using suborn?

Thomas V. Koykka:

Suborn to corrupt him from his duty to his employer.

The —

William J. Brennan, Jr.:

That is — all as I understood that that’s involved here is that Orlando investigated the facts regarding cases against B.& O.

Thomas V. Koykka:

Against his —

William J. Brennan, Jr.:

All right!

Is there any suggestion that he falsified anything he found?

Thomas V. Koykka:

No.

William J. Brennan, Jr.:

Well then I don’t know that suborn is right.

Thomas V. Koykka:

He was suborned from his duty to his employer, the B.& O.

The first duty of an employee is loyalty to his employer and this Court has so held in the opinion of Mr. Justice Burton involving the pickets at the television station.

The first duty of the employee is the duty of loyalty and that is what was corrupted here.

Thurgood Marshall:

What is the duty, the level of duty of loyalty of a man that checks airbrakes on cars in B.& O. Railroad?

Thomas V. Koykka:

It is the same —

Thurgood Marshall:

Wouldn’t be his loyalty be to a good workman like job on an airbrake, period?

Thomas V. Koykka:

It is the same kind of duty as we impose upon a trustee, for example, where we —

Thurgood Marshall:

That’s your position.

Thank you.

Thomas V. Koykka:

We say that we will not permit you to get into that situation where you may breach your duty of loyalty.

We will not permit it and we will not permit a lawyer to let a layman get into that position.

Earl Warren:

What do you do at this language of the National Railroad Adjustment Board where it says, “On the other hand, there is no doubt whatever of the right of an employee when off duty to assist an injured employee or his representative in any manner including the gathering of evidence and so long as it is limited to the development of truth, it cannot be regarded as disloyalty nor afford just grounds for discharge.”

Thomas V. Koykka:

I have no complaint with that statement.

Thomas V. Koykka:

I say, when a lawyer goes and hires a person to do that kind of thing, then he had violated his oath of office.

Earl Warren:

Where do you get any authority for saying there is a difference between doing this specifically on one hand and paying him for his time when he’s off duty on the other?

Thomas V. Koykka:

I think there is all that difference in the world, Your Honor.

There, you are asking the employee to come and tell you about the specific facts of an accident.

That he may do.

But I do say that the lawyer has no right to hire that employee to do that kind of work.

Earl Warren:

Well, this language says, “He has a right to assist an injured employee or his representative in any manner including the gathering of evidence.”

Where do you get the distinction between that and where he pays him for his time?

Thomas V. Koykka:

I don’t think the matter of payment is particularly relevant.

Earl Warren:

But what is relevant?

Thomas V. Koykka:

But the fact that he enters upon a course of conduct and that a lawyer suborns that obligation of loyalty and says, “You, you go and investigate things against your own employer.”

That is the thing that is wrong and I submit that the conduct of a lawyer’s — if that is to be accepted as a standard of conduct for lawyers, then it seems to me discipline at the bar is gone if there must be —

William J. Brennan, Jr.:

Mr. Koykka, may I ask you something?

Earl Warren:

Yes.

William J. Brennan, Jr.:

Is this statement under your adversaries’ brief accurate?

“A very few former discreditable clients may claim some impropriety which the American Association of Railroads then turned over to the president of the Mahoning County Bar Association, who was also the defense counsel in the Youngstown area for the B.& O. Railroad.

The Mahoning County Bar Association then filed a charge against the petitioner,” is that right?

Thomas V. Koykka:

That statement is made —

William J. Brennan, Jr.:

And is it true?

Thomas V. Koykka:

I cannot answer it from the record.I am told that the president have actually nothing to do with the —

William J. Brennan, Jr.:

Was he the original counsel of the B.& O. Railroad at that time?

Thomas V. Koykka:

I am told, outside the record, that his firm was counsel for the B.& O.

But I understand that the information came to him because he was president of the Bar Association.

Abe Fortas:

Could I ask you one question?

William J. Brennan, Jr.:

But he didn’t think that his relationship with the B.& O. required him to disqualify himself from the consideration of the matter?

Thomas V. Koykka:

Well, I don’t know that he — I don’t know that that he did participate in the consideration but accepting to turned it over to the appropriate grievance committee of the association.

Abe Fortas:

I know your time has expired but I want to ask you one question to explore the perimeter of this doctrine that you’re stating.

Suppose a lawyer’s client — suppose a lawyer works for an industrial company in Ohio and the president of the company comes to him and says, “You know, we have some litigation against company X and I paid a thousand dollars to one of the employees of company X that came to us.

He came to us voluntarily on his own initiative and he gave us some information that’s useful in that litigation and the lawyer proceeds to use that information in the litigation.

Would the doctrine that you are here stating extend to disbarment of that lawyer?

Abe Fortas:

In other words, the lawyer knowingly uses in litigation information that has been supplied at the initiative of an employee of the adversary in litigation and for which that employee has been paid.

Thomas V. Koykka:

No, I do not, Your Honor.

— I see that if the lawyer —

Abe Fortas:

You dont think the lawyer would be subject to disbarment?

Thomas V. Koykka:

No, I do not but if the lawyer undertook to do that, then I would say that —

Abe Fortas:

Well, a lawyer uses it with full knowledge and the illustration I gave — if the lawyer uses that information with full knowledge of how it’s been obtained, your answer’s the same?

Thomas V. Koykka:

My answer is the same, Your Honor.

I say that if the lawyer, however, had anything to do with developing that then he has departed from what I hope will continue to be the high standard — a standard so high for lawyers that when he jumps down from —

Abe Fortas:

(Voice Overlap) you wouldn’t like to see that high standard elevated a little higher in the case that I put.

Thomas V. Koykka:

Well, I would be perfectly content to have it, yes, Your Honor.

Earl Warren:

Very well, Mr. Koykka.

Thomas V. Koykka:

Thank you, Your Honors.

Earl Warren:

Anything further, Mr. —

Craig Spangenberg:

In answer to the question that was put, I would refer you simply to appendix Volume I, page 21(a).

I think Mr. Justice Brennan asked the question about the part of the — of Mr. Brownlee in the inception of the charges that’s covered in the District Court’s opinion.

It is based on record evidence, Your Honor.

I would like to ask you a question on the motion to show cause.

Craig Spangenberg:

You have never filed a motion to show cause, Your Honor.

And the —

Upon your request?

Craig Spangenberg:

In the petition for the writ of certiorari, I suggest to the Court that we would waive motion to show cause.

I think under your rules, you should file one.

I have said we will treat our own petition as a response to the motion to show cause which you have not filed.

And as your disposition on the appeal, I think whatever you say about his conduct, you may say for yourselves.

We do not ask for a separate hearing or a separate motion to show cause from this Court.

The matter is now before you and his admission to the bar of this Court is in review on the Court of Appeals.

And with or without?

Craig Spangenberg:

With or without, we are content to rest on this record and the facts that it shows as to what he did and what he did not do.

William J. Brennan, Jr.:

Well, is that a concession too, Mr. Spangenberg if we sustain the Court of Appeals on the ground taken to disbar him, you concede that that also would be sufficient ground to disbar him in this Court?

Craig Spangenberg:

If the majority of this Court feels, that that shows he has character unworthy of a lawyer, then disbar him here too, and let the bar of the country know that how far we can go in representing our client.

Earl Warren:

Very Well, Thank you.