(dissenting).
Respectfully, I dissent from the opinion of the court.
This is a disturbing record on practically all counts. The State, of Ohio, acting through its Bar Association and Supreme Court, has disbarred respondent on grounds which will be discussed. The Ohio disbarment is final and is not before us for review.
Dealing with a motion to disbar respondent before the United States District Court for the Northern District of Ohio, the United States District Judge reviewed the same record and held that adequate grounds for disbarring respondent from practice before the federal courts had not been established. In re Ruffalo, 249 F.Supp. 432 (N.D.Ohio 1965).
We deal, under our Court Rule 6(3),1 with a similar petition to disbar respondent in this court. We review the same record.
The respondent was a lawyer in active practice principally representing railroad employees in Federal Employers’ Liability Act suits against railroad companies. The Association of American Railroads instigated an investigation of respondent which led directly to the present charges and proceedings.
Most of the testimony adverse to respondent was that of former clients in relation to whose cases respondent had not succeeded in achieving a result satisfactory to them — or for that matter, to him.
The basic charges at the outset were that respondent had engaged in unethical conduct as a lawyer by soliciting lawsuits and employing others to solicit lawsuits for him- — -in short, what is termed “ambulance chasing.”
The State Bar Association panel dismissed seven of fourteen charges and found respondent guilty on the other seven. In its review of the same record the Supreme Court of Ohio, however, found respondent guilty of unethical practices in only two instances. These concerned the making of certain loans to two of respondent’s clients and the hiring as an investigator of a person who was also a brakeman for the Baltimore & Ohio Railroad.
*461In finding the loans made by respondent to be violations of the Canons of Professional Ethics of the American Bar Association (which have been adopted by rule in Ohio), the Ohio Supreme Court relied upon Canon 10, which says: “The lawyer should not purchase any interest in the subject-matter of the litigation which he is conducting.”
The undisputed facts are that out of a very busy practice and after a thorough and thoroughly hostile investigation respondent was shown to have made such loans in two instances.
On June 16, 1957, Mrs. Clara Beighley’s husband died as a result of an injury received while working as a conductor for the Baltimore & Ohio Railroad. His widow employed Ruffalo to represent her in her claim against the B. & O. In the next four years respondent advanced periodic sums of $50 to Mrs. Beighley, which ultimately totaled $1,025.
The other loan pertained to another B. & O. widow. Mrs. Naomi Mae Clark’s husband died August 13, 1957, in an accident while employed as an engine house laborer. Mrs. Clark retained respondent on September 3, 1957, and approximately three years later received $21,000 in a settlement with the B. & O. Meantime, respondent had made periodic advances to her which totaled $611 at the time of settlement.
I cannot in good conscience agree that the making of such small loans as these to two admittedly impoverished widows represented purchasing an interest in litigation. If this record showed that making maintenance loans to clients was a general practice employed by respond^ent so as to become widely known and hence to constitute an economic attraction for potential clients, we would have facts from which such an inference properly could be drawn. Clearly we do not have such proofs in this record.
We recognize, of course, that the American Bar Association’s Professional Ethics Committee has published an opinion, No. 288, (41 A.B.A. Journal 33 (Jan. 1955)) which may be cited as general support for the view expressed by the Ohio Supreme Court. This view is, however, against the great weight of opinion in the courts in this country. People ex rel. Chicago Bar Association v. McCallum, 341 Ill. 578, 173 N.E. 827 (1930); Johnson v. Great Northern Ry. Co., 128 Minn. 365, 151 N.W. 125, L.R.A.1917B, 1140 (1915); Hildebrand v. State Bar of California, 18 Cal.2d 816, 117 P.2d 860 (1941); In re Moore, 8 Ill.2d 373, 134 N.E.2d 324 (1956); In re Sizer, 306 Mo. 356, 267 S.W. 922 (1924); Bank of Chenango v. Hyde, 4 Cow. 567 (N.Y. 1825); see also Grievance Committee of Fairfield County Bar v. Nevas, 139 Conn. 660, 96 A.2d 802 (1963); State ex rel. Florida Bar Association v. Dawson, 111 So.2d 427 (Fla.1959). We likewise feel that it is a view which is basically inconsistent with the attitude toward legal representation in FELA cases expressed by the Supreme Court of the United States in Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964).
The view of the Illinois Supreme Court adopted in McCollum in my opinion expresses the majority view in this country on this issue:
“The evidence shows that at various times the McCallums have advanced living expenses to needy clients who had claims for personal injuries against railroad companies where respondent had a fee contract, which was a lien upon any damages which might be recovered upon the injury. In most such cases the clients were unable to work, had no money or property, and their only asset was the claim for damages against the railroad, upon which respondent had a lien. We know of no law which makes it more unethical, under such circumstances, to advance living and medical expenses to the client, and so prevent his becoming a public charge, than it would be, if the client’s only asset were a piece of real estate, to advance him, on a mortgage thereon, money for such expense. It is not uncommon for at*462torneys to commence actions for poor people and make advances of money necessary for the prosecution of the suit upon the credit of the cause. Thus a man in indigent circumstances is enabled to obtain justice in a cause where without such aid he would be unable to enforce a just claim. Christie v. Sawyer, 44 N.H. 298; Shapley v. Bellows, 4 N.H. 347, 355. The practice of advancing money to the injured client with which to pay living expenses or hospital bills during the pendency of the case and while he is unable to earn anything may in a sense tend to foment litigation by preventing an unjust settlement from necessity, but we are aware of no authority holding that it is against public policy or of any sound reason why it should be so considered. Johnson v. Great Northern Railway Co., 128 Minn. 365, 151 N.W. 125, L.R.A. 1917B, 1140; Potter v. Ajax Mining Co., 22 Utah 273, 61 P. 999. By canon 42 of the Ethics of the American Bar Association, it is permissible for an attorney to advance costs and court charges for his client, with the understanding that the same are to be ultimately paid by the client.” People ex rel. Chicago Bar Association v. McCallum, supra, 341 Ill. at 589, 173 N.E. at 831.
I turn now to the second issue in this case. Respondent employed one Orlando, whose regular occupation was that of a brakeman on the B. & O. Railroad. He worked on a night shift. Respondent testified that Orlando’s employment with him was that of an investigator of FELA cases brought by respondents against railroads, including Orlando’s employer.
I note that Orlando’s work involved no supervisory responsibilities to his employer and no access to records, confidential or otherwise, which would have assisted him in his daytime job with respondent.
But discounting these factors as much as I do, I cannot avoid concluding that Orlando’s access to the B. &. O.’s property and personnel would be of potential value to respondent and that it would some times be impossible (probably even for Orlando) to know when Orlando was working for the railroad and when he was investigating for respondent.
I believe the day is long gone when a railroad so owned its employees’ souls that it should be held impermissible for one of its brakemen to accept outside employment on his own time (even as an investigator of lawsuits against another railroad). But the employment of a railroad employee to investigate accident claims against his own employer opens a tempting door to industrial spying which no person of ordinary conscience should be asked to go by every normal work day.
Respondent’s actions in hiring Orlando for the purposes admitted by respondent, in concealing the employment relationship and in being a great deal less than fully cooperative with the Bar Association’s investigation of his record in this matter convince the majority that he was aware of the conflict of interest inevitable (for Orlando!) in his hiring Orlando to investigate accident cases against Orlando’s own employer. These facts also convince me.
This, however, does not end the matter. In order for a lawyer properly to be found guilty of an offense and barred, perhaps forever, from the practice of his profession, he should h^vp^advance notice that the act he was charged with was an offense, and prior to his hearing he should have written notice of the charge made against him. Respondent here had neither.
The charge we deal with here was numbered 13 and it was added by oral motion at page 662 of this 1034 page transcript over respondent’s strong objection. Such procedural violation of due process would never pass muster in any normal civil or criminal litigation. Nor should it here. Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585 (1917).
*463Even more to the point, the Ohio Bar Association and the Ohio State Supreme Court were unable to cite any canon of ethics which purported to forbid respondent’s conduct in hiring Orlando. Neither do my colleagues. Nor is any prior ethics opinion or case precedent cited for the holding here.
Under the circumstances, I would think that the course of action taken by the Illinois Supreme Court in In re Brotherhood of Railroad Trainmen, 13 Ill.2d 391, 398, 150 N.E.2d 163, 168 (1958), was an appropriate one to follow. In declaring a representation plan (previously approved by another court) to be improper, the Supreme Court then held that “proceedings looking toward the imposition of discipline should not be pursued. * * * ” in that case.
There is an ancient adage, “Where there is smoke there is fire.” If this were a governing rule of law, I would quickly have agreed with my brethren’s result in this case. This record surely contains a great deal of smoke. The writer confesses that he, too, is capable of being impressed thereby.
Finding myself, however, in fundamental disagreement with relying for disbarment on the issues dealt with above, I undertook research of the record for a possible concurring opinion which I thought would be founded upon the ambulance chasing and witness tampering findings of the Ohio State Bar. To abbreviate a lengthy recital and weighing of a record of over 1,000 pages of transcript, I note that I simply could not find reliable evidence upon which to approve these findings. I deduce that my colleagues cannot do so either. Yet they include as an appendix these same findings upon which neither they nor the Ohio Supreme Court saw fit to rely.
For the reasons I have indicated above, I feel there are “grave reasons” why this court should agree with the United States District Judge in declining to accept the judgment of disbarment of the Supreme Court of Ohio.
. Rules of United States Court of Appeals for Sixth Circuit (May 1, 1956, as amended April 15, 1966).