dissenting:
I concur with the majority finding that the record fails to establish that respondent conspired with McDonald and others to enable McDonald to practice law in Illinois without a license, and that respondent made false statements under oath in the case of Stanford v. Pennsylvania Railroad Co. in the court of common pleas of Cambria County, Pennsylvania; but I dissent from the majority finding that the record “does not contain the believable, reliable, clear and convincing evidence that is required in proceedings of this character” to warrant disciplinary action by this court, and from its judgment discharging the respondent without reproach save censure for failing to take the stand and testify in this proceeding.
This dissent relates to the findings and conclusion of the majority in connection with the charge of solicitation or “ambulance chasing.” These charges deal with several different cases concerning which varying amounts of evidence were offered. I shall not attempt a detailed analysis of all the conflicting evidence regarding each transaction, but shall briefly refer to the instances which I deem most important in the voluminous record.
Walter H. Wood
Walter H. Wood was injured in August, 1948, while working for the Missouri Pacific Railroad. He testified that respondent called him by telephone and asked him if he was the Walter H. Wood who- worked for the Missouri Pacific Railroad and who had a back injury, and upon being answered affirmatively, respondent then came to his home in North Little Rock, Arkansas, in November, 1948. At this time respondent asked if O. C. Brown, his man, had contacted Wood and being advised that such contact had been made, respondent requested the case, told Wood of his big verdicts, and that this case was worth $50,000 in Chicago. Wood testified that O. C. Brown later came to his house, praised respondent highly, and urged' him to come to Chicago to see the respondent. At that time Brown left his card and told Wood to give him the names and addresses of any injured railroad men and he would see that Wood received a nice little check for such service. Wood also testified that respondent made the same proposal to- him. Brown again made a trip to the Wood home in January, 1949, and continued to- urge him to come to Chicago. On these calls Brown would discuss with Wood other cases he was trying to get and told him of large verdicts the respondent had obtained. In February, 1949, Wood wrote to- Brown giving him the name of Teeth Mauldin who had been injured. In June, 1950, Wood received a $25 check from Brown together with a letter signed “O.C.” stating in part that, “I wish he had gotten $100,000. Then we would have made some money.” Wood further testified that Ludwig Cramer called at his home; introduced himself; said he worked for respondent; inquired concerning certain area Missouri Pacific Railroad employees who had been injured; and called them from the Wood home by telephone to malee an appointment. Subsequently, Wood went to Chicago where he and Brown met by prior agreement; thereafter, Wood signed a contract with respondent. The case was later settled by attorney Feigenbaum, who acted as local counsel for respondent in St. Louis, Missouri. Wood’s wife corroborated her husband in all material respects. The solicitation of Mauldin by the Woods is also corroborated by the testimony of Teeth Mauldin and his wife. The Woods were the informants and O. C. Brown was the contact man in procuring this case.
To rebut this testimony, respondent introduced an affidavit executed by Wood at the time that he signed other settlement papers in attorney Feigenbaum’s office, which recited that the Wood case had not been solicited. Attorney Feigenbaum testified, but made no specific reference to the circumstances surrounding the execution of this affidavit, and attorney Feigenbaum’s son, Robert Feigenbaum, who took the acknowledgment on said instrument, was not called as a witness. However, Wood testified that he just signed several papers for the attorneys’ records; did not read them; that he was rushed into signing them; that he did not swear to' anything at that time; did not meet a Robert Feigenbaum and did not know a Robert Feigenbaum. The circumstances surrounding the signing of this affidavit naturally detract from its probative force. In re McCallum, 391 Ill. 400.
Willie Webb, an employee of the Missouri Pacific Railroad, who was likewise hospitalized while Wood was receiving treatment for his injuries, was a witness for respondent. Webb testified that he and Wood visited daily while they were in the hospital; that while on the train from St. Louis to Little Rock they discussed Wood’s injury and that Webb then told Wood that respondent was acting as his attorney. Webb also testified that Wood wrote to him stating that the respondent had tried the Hawkins case at Little Rock, and that Wood had called respondent at his hotel. Mrs. Wood was called as a rebuttal witness and denied the substance of much of Webb’s testimony.
Webb’s testimony was corroborated by a statement obtained from Wood by respondent’s witnesses, attorneys Graham and McElligott, who testified that Wood stated that he met Willie Webb, an injured fellow-employee while they were hospitalized; that Webb told him that respondent was his attorney; that he took from Webb respondent’s name and address; that when he returned to his home in North Little Rock the paper there reported that respondent was trying the Hawkins case; and that he (Wood) called respondent at his hotel and asked respondent to get in touch with him before leaving Little Rock. These attorneys further testified that Wood refused to sign this written statement because he feared it might jeopardize some further claims he had against the railroad.
Respondent also' offered a letter written to Wood by Taussig, after Wood had first testified. From this letter it could be implied that Ericksen had, without authority, promised Wood that his hospital and pass privileges, which had been withdrawn by the railroad when he filed suit, would be restored if he testified against respondent. It stated, “I am certain you must have misunderstood him when you say he told you that you would get your rights back. Mr. Ericksen had no authority so to do.” Taussig, in response to the subpoena duces tecum issued for Wood’s letter to him, stated that it was lost and such letter was never produced.
Francis J. Bicic
Francis J. Bick, an employee of the E. J. & E. Railroad, died in an accident in November, 1947. His widow, who resided at Joliet, Illinois, testified that shortly after the death of her husband, Howard Curtin called at her home and said that he had found out about the case by reports from Washington; that he said respondent represented Dana Mayhew of Joliet; that he called Mrs. May-hew by telephone and requested Mrs. Bick to talk with her; and that in this conversation, Mrs. Mayhew said they were pleased with the respondent’s services. She further testified that Curtin said the respondent represented Clark Gable when Gable sued for the death of Carole Lombard and that respondent got him $75,000; that she should expect from $27,000 to $65,000 in this case; and that Curtin opened up a portfolio and showed her photostatic copies of large checks, settlements, etc. She was corroborated by a sister-in-law and brother. She further testified that she went to respondent’s office with Curtin, who introduced her to respondent by saying, “Mr. Heirich, you told me not to come in without the Bick case, and here it is.”
Respondent called J. R. Riley, a former client and sales manager for National Cartage Co. of Joliet, who testified that he attended the wake and funeral for the decedent; that he was a friend of the Bick family; that he talked with them and that at the request of the father of the deceased, he called respondent and asked him to see the relatives of the decedent. No rebuttal testimony was offered to refute this statement. However, it is significant that Curtin never referred to Riley as his contact in this case, but rather, cited the Washington reports as the source of his knowledge concerning this fatal injury.
The majority notes that no rebuttal testimony was offered to refute the testimony of J. R. Riley and has applied the rule that under such circumstances a presumption arises against the party failing to produce contradictory testimony. Such rule is applicable here to the same extent as under a like factual situation hereinafter mentioned.
The undenied testimony of Mrs. Bick is that after she had obtained an offer of settlement from the railroad in the sum of $20,000, Curtin offered to give her a written guarantee of $25,000 in connection with the case and later did present her with a letter signed by respondent, whereby respondent agreed that out of the money recovered from the railroad, Mrs. Bick would receive not less than $25,000 net to herself as administratix before attorney fees would be deducted and that she would receive three fourths of the total recovery. (Complainant’s exhibit 49.) In the interim, Mrs. Bick had been offered $30,000 by the railroad and she so told Curtin who crossed out the $25,000 figure and wrote in $30,000 and wrote alongside this figure, “O.K. Howard J. Curtin.” This guarantee letter was dated March 19, 1949, and the retainer contract was dated and signed March 24, 1949.
Eugene H. Eelter
Eugene Eelter, who lived at Norwalk, Ohio1, was injured while employed by the Nickel Plate Railroad in 1947 and was taken to a hospital in Cleveland. After he returned to his parents’ home, Oliver Zollicoffer called upon him. Eelter testified that Zollicoffer showed him photostatic copies of checks, paper clippings,etc., pertaining to1 cases which respondent had and was handling; that Zollicoffer said he thought Felter’s case was worth about $30,000; that respondent would give him a guarantee and make monthly advances until the case was settled; that Zollicoffer called again December 7, 1947; that he urged Eelter to go to' Chicago' with him to see respondent and be examined by respondent’s doctors; that Eelter went to Chicago with Zollicoffer; that Zollicoffer took Eelter to respondent’s office and from there to Dr. Turner’s office for examination ; that thereupon they returned to respondent’s office; that respondent talked with Dr. Turner by telephone and then told Eelter that his case was worth from $30,000 to $35,000. Respondent wrote and signed a letter addressed to1 Eugene H. Eelter dated December 8, 1947, providing for a one-third net retainer and a guaranteed net of $5000. On this occasion respondent also executed and delivered to Eelter a $50 check as a monthly advance and Eelter signed a retainer contract with respondent. Eelter testified that respondent also told him that if he could get any cases for respondent that he, (Eelter) would get the same percentage as respondent’s men.
To refute this testimony, respondent produced Michael James Gilmore of Youngstown, Ohio, who testified that he met Heirich in the summer of 1946 at Youngstown; that while en route to Chicago, Gilmore stopped at a gas station at Norwalk, Ohio, and met a man named Eelter who was manager of the local Elks Club; that Eelter told Gilmore how he had built up the Elks Club with slot machines; that he had a son who got hurt while working on the railroad; that the railroad did not seem to want to settle; that Eelter asked Gilmore if he knew a good lawyer for that kind of a case; that Gilmore told him that he had been introduced to a lawyer from Chicago1 who got terrific verdicts from railroads and that his first name was Bruneau but that he had forgotten the last name; that Gilmore told Eelter that he did not know for sure whether he could locate this man, but he would try to find him; that when Gilmore arrived in Chicago, he searched through the classified section of the telephone directory and the only lawyer with the first name of Bruneau he could find was the respondent, whom he called at his office and found to be his former acquaintance; that he thereupon went to Heirich’s office and told him to1 get in touch with Eelter at Norwalk, Ohio; that only the respondent was in the office at that time; that Gilmore never saw Eelter again and never saw respondent again until requested to testify in this proceeding.
The somewhat unusual testimony of the ubiquitous Gilmore, as well as the alleged meeting, was denied by the senior Eelter.
Harold A. Gudlrjan
The facts pertaining to the injury of Harold A. Guderjan and to the visits of the respondent, at the hospital, to see him and secure his signature to a contract to retain the services of McDonald, De Parcq and Davis, as attorneys, are set forth in the majority opinion and are incorporated by reference.
Walter Dew, presently a garage and service station owner, testified for respondent stating that during the time in question he was a brakeman on the Santa Ee, and was secretary-treasurer of Lodge 285 of the Brotherhood of Railroad Trainmen; that it was his duty as such officer to notify the general office at Cleveland of the injury of any member of the lodge; that he did so notify that office of the injury of brother H. A. Guderjan; that he talked with Mrs. Guderjan by telephone and she asked him to have someone from the office of the regional attorney call on her; that he called McDonald and De Parcq at Minneapolis and they told him that they would have respondent call on Guderjan; that respondent called and asked Dew to’ meet him at the Custer Hotel in Galesburg at 3:3o P.M. on a given date in the early part of October, 1945; that respondent did not appear at the hotel at the appointed time and Dew later learned that respondent’s train had arrived approximately one and one half hours late; that Dew was compelled to report for work before the train arrived; and that respondent went to the hospital alone to see Guderjan. Respondent also introduced in evidence as exhibit 27, a letter from the Cleveland office of the brotherhood addressed to Dew, bearing date September 28, 1945, which acknowledged receipt of Dew’s report of the Guderjan injury and which stated — “and trust it has been possible for you to advise Brother Guderjan of the services that are available to him through the Legal Aid Department of the Brotherhood.”
Mrs. Guderjan, on rebuttal, denied ever having any conversation with Dew.
Jambs K. Dbans
James Deans, who lived at Tilden, Illinois, testified that his son, James K. Deans, was killed in an airplane accident in November, 1944, while on his way home from the South Pacific; that the respondent contacted him at his home in January of 1945 and stated that he was connected with McDonald and De Parcq who were reputable lawyers and who would like to- have his case; that respondent showed him a lot of papers where they had gotten claims for other people who had been killed or injured; that Deans told respondent that he had read a lot about “ambulance chasing” lawyers and that respondent assured him that they were not in that class, but rather, were lawyers who went after railroads, airlines, and big corporations; that respondent told Deans it would not cost him anything; that Deans thereupon signed a retainer contract for respondent and signed papers for procuring letters of administration; and that respondent paid the costs in connection therewith. Two sisters of James K. Deans also testified that the respondent contacted them prior to seeing their father and stated that he wanted to help them get money from the airlines and asked them to talk it over with their father. They further testified that none of them had ever met or heard of respondent, McDonald or De Parcq prior to that time.
To refute this testimony, respondent called as a witness on his behalf, William Lyons, an official of the Progressive Mine Workers and a member of the House of Representatives from the 38th Senatorial District of Illinois. Lyons testified that he knew James Deans and met him in the month of December, 1944, while attending a meeting at the Union Hall; that James Deans told him of his son’s death and asked him if he knew a lawyer who might be good in that field; that Lyons told him of the respondent and later called the respondent and told him to see Deans.
James Deans, in rebuttal, testified that he never met William Lyons at the local Union Hall in December of 1944; that he never had a conversation with him concerning his son’s death; that he never asked him to recommend a lawyer or be of assistance in that respect; and that he never met Lyons until after the settlement.
There is' conflict in the testimony as to the original contact between respondent and his clients. However, much competent and direct testimony concerning the solicitation oí cases by respondent, directly and through solicitors, is uncontradicted. Direct testimony that respondent’s solicitors were paid by a division of fees stands unrefuted in the record, except for testimony by respondent’s witnesses, disparaging in nature, intended to affect the credibility of complainant’s witnesses. In each case, either the respondent or one of his solicitors made one or more calls upon the client in question to obtain retainer contracts for respondent, McDonald, Davis and De Parcq, or other named associates ; in most instances the solicitor personally took the client to Chicago without expense to the said client for the purpose of seeing the respondent and receiving a physical examination by respondent’s doctors without cost; in all cases either the respondent or one of his solicitors exhibited newspaper clippings and photostatic copies of checks and settlement papers indicating the large verdicts obtained by either the respondent or-his former associates; in connection with the cases of Francis J. Bick, deceased, and Eugene Felter, a guarantee agreement was delivered to Ruth Bick McNichols, widow and personal representative of said decedent and said Felter, bearing the signature of the respondent. In the Teeth Mauldin case, an oral guarantee was made by respondent that if the judgment or settlement was not over $10,000, Mauldin would receive all of it.
There is further testimony in the record, some of it conflicting, as to other solicitations by respondent or his agents. I deem further reference to such testimony needlessly repetitive. In reference, however, to the Wood case, and others to which I have not referred, respondent introduced the testimony of attorneys Graham and McElligott. These men were Chicago lawyers of good standing and were friends and associates of the respondent, who had received and were handling certain business matters for him. The respondent, upon learning that Ericlcsen was interviewing his former clients and was taking statements from them, thereupon retained Graham and McElligott to perform a similar service for him. Respondent and these attorneys called at the homes of several of the witnesses in this proceeding, questioned them at length and took pencil notes on the interrogation. A typical example of this procedure occurred in the Wood case. On this occasion, according to the testimony of these attorneys, Wood made the statements heretofore related in that case.
The record contains nothing which would cause me to believe that these lawyers were unfair in their investigation or untruthful in their testimony relative to this transaction. Their testimony must be considered along with the other evidence in this case.
Respondent contends that the proceedings before the commissioners were wholly vitiated because certain commissioners, either personally, or through their law firms represented one or more of the railroads associated in the Railroad Claims Research Bureau, which financed the costly proceedings now before us. Undisputed testimony established that one or more commissioners did represent such railroads. As the majority, I also- believe that the respondent was entitled to have the charges against him heard and considered by commissioners who were completely disinterested in the subject matter and the parties involved in this proceeding. If any commissioner was interested in the outcome of this proceeding by virtue of such representation, then it would have been appropriate for him to have disqualified himself.
However, the instant charges were filed in regular form by the fifteen-member Personal Injury Practice Committee of the Chicago Bar Association, and they were heard by the commissioners of this court appointed from the grievance committee and the board of managers of the Chicago Bar Association. There were eight commissioners who heard the case, and in addition, forty others heard respondent’s argument on objections to the commissioners’ report and acted to overrule the objections and approve the report.
Supreme Court Rule 59 empowers commissioners to receive, inquire into, and take proof concerning complaints against attorneys of this bar. (Ill. Rev. Stat. 1953, chap. 110, par. 259.59.) However, they act only in an advisory capacity, as agents of this court for the purpose of gathering and reporting evidence. (4 I.L.P., Attorneys and Counselors, sec. 195.) Their recommendations are purely advisory, and this court is regarded as a court of initial hearing. In re McCallum, 391 Ill. 400.
No claim has been made that the respondent was prejudiced by the rejection of competent evidence, nor does he contend that any of his evidence was not transmitted to this court. That the commissioners performed their essential duties in an able manner is therefore not disputed.
Of course, it is conceivable that a proceeding of this type might be vitiated by proof that it was conducted in such a manner as to prevent fair treatment for the respondent. But this is manifestly not such a case. Here, it is clear that the commissioners gave freely of their time and ability; that they exercised remarkable restraint in a proceeding in which both counsel acted with emotion and vigor; and that they afforded the respondent the fullest opportunity to defend the charges lodged against him, scrupulously preserved and passed on to this court the entire record of the case, carefully analyzed the evidence, and submitted reasoned conclusions. Significantly, the respondent’s former counsel, who withdrew from the case after eighteen witnesses had been examined and i860 pages of testimony had been taken, made a statement to the commissioners in which he thanked them “for their fairness and of the manner of treatment (of him) as counsel for the defendant.” In view of all this, it is difficult to maintain a judicial calm when the respondent recklessly accuses our commissioners of having “prostituted themselves” and with having been parties to an “unconscionable conspiracy.” These distinguished attorneys served ably and with honor. They are deserving of the public commendation of their Supreme Court. The following excerpts from the concurring opinion of Justice Knutson in the case of In re Rerat, 232 Minn. 1, 44 N.W.2d 273, at page 305, pertinently apply to this proceeding: “In conducting an investigation of this kind, the committee acts as an arm of this court * * *. In so doing, the committee is entitled to fair treatment and a decent respect. * * * I cannot read this record without coming to the conclusion that had there been more devotion to the duty resting upon respondent of fairly assisting the committee in clearing himself of the charges brought against him and less effort spent in seeking to impute to the committee an improper motive in commencing and conducting the investigation, the outcome would be more satisfactory to all concerned. If the standards of the legal profession are to be preserved, it is essential that charges of this kind be investigated, no matter from what source the information comes.”
Respondent has likewise made a caustic and vigorous attack upon the Railroad Claims Research Bureau, its paid investigator Edicksen and its paid counsel Taussig, and has denounced the complainant’s evidence as unworthy of belief. It is true that the Railroad Claims Research Bureau furnished information upon which the charges against the respondent were based, and aided substantially in the prosecution. But regardless of the source of the evidence, it is our duty to decide the case on its merits. For even “If it were true that the charges would not have been made except for personal hostility, it would neither relieve the court from the duty of investigating the charges nor the respondent from disbarment if they were found to be true.” People ex rel. Chicago Bar Assn. v. McCallum, 341 Ill. 578, 598; People v. Holt, 279 Ill. 107, 109.
While some of the foregoing testimony as to solicitation is not as clear as I might desire, and much of the testimony is in direct conflict, the respondent did not take the stand to deny any of the positive testimony of eighteen of complainant’s witnesses who testified to facts and statements made in respondent’s presence evidencing solicitation and division of fees by respondent. Nor were any of the alleged runners or investigators of respondent called to refute the direct charges of solicitation and division of fees. The presumption which the majority heretofore invoked in connection with the failure of the complainant to introduce testimony by one or more members of the Biclc family in rebuttal of the testimony of J. R. Riley, must, in fairness, now be applied to the respondent and his alleged runners and solicitors; and the inference must be drawn that their testimony would be unfavorable to the respondent. 32 C.J.S. page 847.
Counsel for respondent attempts to justify the failure to so testify because “of the indignities involved in this railroad inspired proceeding,” and to' protest this “improper procedure.” These protests do not ring true. Regardless of any alleged improper motivation or malice on behalf of either the commissioners or counsel, I find no1 indication in the entire record of personal abuse or indignities inflicted upon respondent or his counsel. Respondent’s acrimony at the charges against him would appear in better grace if he had taken the stand to- brand them false, and I cannot condone his failure to testify in his own defense.
Membership in the bar is a privilege burdened with conditions (In re Rouss, 116 N.E. 782,) and in view of the serious nature of the charges against him, and his position as an officer of this court, the choice of silence was not open to him. (In re Sanitary District Attorneys, 351 Ill. 206; see also In re Anastaplo, 3 Ill.2d 271.) The rule applicable in disbarment proceedings was well stated in the case of In re Wellcome, 23 Mont. 450, 59 Pac. 445 at page 452: “If the accused is not guilty, nothing would have been easier than for him to deny all knowledge of the charges laid at his door. His having failed to testify in his own defense, when he should do so, and deny the statements of Whiteside and Clark, not only justifies, but irresistibly impels this court, upon the evidence before it, which is credible to the conclusion that he is guilty.” See also Fish v. State Bar of California, 214 Cal. 215, 4 P.2d 937; In re Fenn, 344 Mo. 586, 128 S.W.2d 657.
I am of the opinion that all of the evidence in the record, coupled with the failure of respondent to testify, leads to the conclusion that respondent engaged in the solicitation of cases, directly, through paid investigators and through clients. In coming to this conclusion, I am not unmindful that many of the complainant’s witnesses had developed some real or fancied grievance against respondent, and that the investigator Ericksen was guilty of over-zealousness in obtaining the witnesses. However, it must suffice to say that the record before this court contains the believable, reliable, clear and convincing evidence that is required in proceedings of this character to warrant disciplinary action.
In justice to respondent, I must point out that this record discloses that he has represented his clients properly and has protected their interests. I find him guilty of no moral turpitude in that regard. Indeed, the record affirmatively shows that the respondent is an able lawyer who has achieved success in the field involving Federal Employers Liability Act cases. He has gained a good reputation for his ability, honesty, and integrity among members of the bench and bar, as well as among his personal associates, including the Director of the Railroad Claims Research Bureau and other railroad claims men. Such fact, however, does not overcome the positive evidence of solicitation in this case. In re Harris, 383 Ill. 336.
The record here clearly substantiates the findings of the majority that the charges were prepared by George Ericksen and the prosecution conducted by attorney Taussig, both paid employees of the Railroad Claims Research Bureau; that this group was organized in 1946 by the general solicitors of four or five railroads; that it was later expanded to include at least 21 railroads; that it handled funds and retained an investigator and attorney to probe facts surrounding solicitations and present evidence to bar associations; that the investigator worked on a budget of about $20,000 a year; that George Ericksen was employed by the bureau in 1949, and was instructed to report for work to the personal injury practice committee of the Chicago Bar Association ; that the bureau met with the then president of the bar and its general counsel, amicus curiae here, in 1949, and an offer was made to give the Chicago Bar Association money to prosecute “ambulance chasers”; that this offer was refused, but the alternative proposal that the bureau employ Ericksen and Taussig to work with the committee was adopted. Kenneth A. Carney, director of the Railroad Claims Research Bureau, testified that bureau meetings were held twice each year at which time railroad investigators would present affidavits relative to solicitation by lawyers and report the results of their probes of the methods of obtaining and handling claims by lawyers representing injured or deceased railroad employees; and that the railroads adopted the practice of settling with claimants without the recognition of lawyers even when they knew that a lawyer was representing the claimant at the time. In view of these facts, I am compelled to the conclusion that this proceeding did not stem originally from a desire for an impartial investigation of unethical practices, designed solely to protect the public and the profession. It may well be that the hostile attitude of the railroads toward attorneys who represented their employees and the attendant activities of claim adjusters tended to develop the climate in which solicitation of the type complained of in this proceeding could thrive. There is substantial evidence in the record, undenied by investigator Ericksen, that he resorted to ruse and artifice in approaching both past and present clients of respondent. He not only sought out the former clients to be witnesses in this proceeding, but also gratuitously called on the latter to advise them to seek other counsel because respondent would soon be disbarred. There is direct evidence that Ericksen attempted to obtain evidence against the respondent by representing himself to be a relative of a person killed in an accident. There is ample uncontradicted evidence in the record to convince this court that Ericksen, acting with credentials of the Chicago Bar Association, was far more interested in discrediting and disbarring respondent than in determining the facts. Howei^er, these facts neither relieve the court of the duty of investigating the charges of solicitation, nor of taking proper disciplinary action if they are found to be true. People ex rel. Chicago Bar Association v. McCallum, 341 Ill. 578, 598; People v. Holt, 279 Ill. 107, 109.
There is no question but that the type of general solicitation shown in this record, has a strong tendency to lessen the sense of professional obligation to clients and defeat the honorable purposes of the profession. The ethical and social dangers inherent in the practice necessitates its condemnation by this court. Such conduct has long been considered contrary to the ethics of the profession, even though it does not necessarily involve fraud or deceit. We stated in In re Veach, 1 Ill.2d 264 at page 272: “Many of the practices prohibited by the canons of ethics do not inherently involve fraud or deceit, but are nevertheless reprehensible. Instances of solicitation will rarely, though they sometimes may, involve either the element of fraud or deceit. Lack of such element does not render the act any less reprehensive, nor does it serve to protect the good reputation of the bar.”
After the adoption of the majority opinion eighteen railroads moved this court to reopen the record in this case for the purpose of permitting the movants an opportunity to defend the charges, characterized as serious, made in the court’s opinion against the railroads in general, and the movants in particular; or in the alternative, that the court permit the movants leave to file brief as additional amicus curiae in support of petition for rehearing. Suggestions were filed in support of this motion and additional matters in the nature of new and additional evidence against the respondent were filed pursuant to leave of court.
Thereafter, reputable members of the Bar of this State, as officers of this court interested in the due administration of justice, moved for leave to bring to this court’s attention newly discovered evidence which allegedly demonstrated that the respondent systematically employed chasers to solicit business for him on a fee-splitting basis, and directed a course of subpoena evasion during prior hearings in this cause to prevent the disclosure of such facts. This motion was accompanied by the sworn statement of O. C. Brown that he had solicited, for the respondent, some of the cases here considered and by letters and sworn statements that the respondent had directed his runners to evade the service of subpoenas.
Motion has likewise been filed herein by George Erick-sen for leave to bring to the court’s attention new evidence bearing on the matter of improper conduct by respondent in presenting evidence in this case, and to excise from the court’s opinion certain statements relating to him, or to reopen the record.
On respondent’s objections, all these motions were denied by the majority, even though the case of In re Donaghy, 393 Ill. 621, offered ample authority for a re-reference of this case to commissioners of this court to reopen the hearing for the purpose of taking additional evidence and making a supplemental report. Under the allegations of these motions, the record before us is incomplete, and further testimony should have been taken pertinent to the particular charges and defenses involved.
However, even on the present record, I believe that the discharge of the respondent without reproach, save censure for his failure to take the stand and testify, is inadequate.
HershEy, C.J., and SchaEEER, J., concur in the foregoing dissenting opinion.