In re Ruffalo, Misc. No. 269.

• Citation: 370 F.2d 447
• Decision Date: 29 December 1966
• Docket Number: Misc. No. 269.
• Parties: In the Matter of John RUFFALO, Jr.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

370 F.2d 447 (1966)

In the Matter of John RUFFALO, Jr.

Misc. No. 269.

United States Court of Appeals Sixth Circuit.

December 29, 1966.

Craig Spangenberg, Cleveland, Ohio, and Charles Alan Wright, Austin, Tex., for John Ruffalo, Jr.

Walter A. Porter, Dayton, Ohio (P. Paul Pusateri, Wilmington, Ohio, John R. Welch, Columbus, Ohio, on brief, amicus curiae), for Ohio State Bar Ass'n.

Russell T. Williams, Youngstown, Ohio, for Mahoning County Bar Ass'n, amicus curiae.

Before O'SULLIVAN, PHILLIPS and EDWARDS, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Upon the Supreme Court of Ohio's certification to us that respondent John Ruffalo, Jr., had been indefinitely suspended from the practice of law, we ordered that "John Ruffalo, Jr., show cause if any he has, on or before May 12, 1965, why he should not be stricken from the roll of counsel of this Court."

After extensions granted at the request of respondent, we received his response and brief, as well as a brief amicus curiae by the Ohio State Bar Association in support of the Ohio Supreme Court's order, and the cause has now been argued to a panel of this Court.

In 1962, the Mahoning County Bar Association filed with the Ohio Board of Bar Commissioners on Grievances and Discipline, charges of professional misconduct against respondent Ruffalo. The said Board is made up of seventeen members of the Ohio Bar, chosen, one each, from Ohio's seventeen judicial districts. They are appointed by the Supreme Court of Ohio, pursuant to its Rule XXVII(1) and (3)¹, 167 Ohio St. lxxvii, and act as an arm of that Court.

Fourteen alleged instances of misconduct made up the charges against respondent. The Board of Commissioners convened a panel of three of its members to take evidence on these charges and make an initial report. The charges covered generally acts of solicitation of FELA cases, maintenance of persons asserting claims, attempted bribery, and hiring a railroad employee, Michael Orlando, to act as an undercover agent to assist Ruffalo in soliciting and investigating cases against various railroads, including Orlando's employer, the B & O Railroad.

The panel conducted hearings which extended from December 26, 1962, to August 16, 1963, testimony taken comprising 1,034 pages of transcript. The panel report sustained seven and dismissed seven of the charges. It was unanimously adopted by the seventeen member Board of Commissioners. The charges sustained involved solicitation, maintenance of clients, attempted bribery to dissuade a witness from testifying against Ruffalo, and the use of Orlando as an undercover agent.

The Findings of Fact, Conclusions and Recommendation of the Board were returned to the Ohio Supreme Court. The Recommendation of the Board was that "Respondent be disbarred." The Ohio Court sustained charge 8, maintenance of clients, and 13, use of the undercover agent Orlando. It gave judgment that Ruffalo "be suspended for an indefinite period of time from the practice of law." Mahoning County Bar Association v. Ruffalo, 176 Ohio St. 263, 199 N.E.2d 396, 8 A.L.R.3d 1142 (1964). Certiorari was denied by the Supreme Court of the United States. Ruffalo v. Mahoning County Bar Association, 379 U.S. 931, 85 S.Ct. 328, 13 L.Ed.2d 342 (1964). Five members of the Ohio Court joined in the majority opinion, a sixth member concurred in the result, and the seventh dissented. As to five of the charges sustained by the Board of Commissioners covering solicitation, and attempted bribery to dissuade a witness from testifying against Ruffalo, the Ohio majority said,

"The members of this court are not in agreement as to whether the facts are as the Board of Commissioners recommended they should be found with respect to some of the other charges against respondent."

In deciding that Ruffalo should be suspended from practice, the Ohio Court, in addition to its consideration of the current charges, recited and took into account the fact that in 1957 Ruffalo had been found "guilty of unprofessional conduct in his office as an attorney at law * * * in that he did by and through duly authorized agents and employees solicit professional employment from sundry people."

Following the Ohio Supreme Court decision, the United States District Court for the Northern District of Ohio, Eastern Division, pursuant to its own rule, commenced an inquiry as to the fitness of Mr. Ruffalo to continue as a practitioner in that Court. The District Judge had before him the record and proceedings which culminated in the decision of the Ohio Supreme Court. He disagreed, however, with that decision and refused to suspend Ruffalo from practice in the District Court. In re Ruffalo, 249 F. Supp. 432 (N.D. Ohio, E. Div. 1965). However, he withheld the entry of a final order, reciting that "In the event that the Sixth Circuit Court of Appeals reaches a different conclusion, this Court will reconsider its findings." The matter before us is not an appeal from the said District Court, but is our own consideration of Ruffalo's standing as a practitioner in this Court.

We should preliminarily observe that our own Rule 6(3), prior to recent amendment, could be read as automatically striking from our roll of counsel the name of any lawyer disbarred in any court of record. It has been amended and we consider this matter in keeping with the requirements and admonitions of Theard v. United States, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957) and Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585 (1917). These decisions forbid Federal Courts from acting in total reliance on a state judgment. We have before us, and have reviewed, the entire record developed by the Ohio proceedings, but think it proper to dispose of the matter primarily upon the charges on which the Ohio Court disciplined Mr. Ruffalo.² The facts as to these are not in dispute. We consider whether we find insupportable the Ohio Court's determination that such facts disclosed unprofessional conduct warranting the discipline imposed and whether they warrant similar discipline by us.

The facts as to charge No. 8 are that Ruffalo, during the pendency of their FELA cases, advanced living expenses to three clients. This conduct was found to offend Canons 10 and 42 of the Canons of Professional Ethics. Canon 10 declares that:

"The lawyer should not purchase any interest in the subject-matter of the litigation which he is conducting."

and Canon 42 provides that:

"A lawyer may not properly agree with a client that the lawyer shall pay or bear the expenses of litigation. He may in good faith advance expenses as a matter of convenience, but subject to reimbursement."

On this subject, we set out the following extract from the Findings of the Board of Commissioners:

"While it may be questioned whether or not an occasional advance or loan by a lawyer to a client constitues a violation of Canon 10 or Canon 27, it is clear that where such advances are frequently made to various clients over an extended period of time, such practice does establish the violation of Canon 10 in that the lawyer acquires an interest in the subject matter of the litigation which he is conducting, beyond the payment of his fee. Moreover the practice constitutes an indirect form of solicitation in providing an inducement to seek out such lawyer for employment for reasons unrelated to their professional competence. The facts in the present case establish that the Respondent advanced money to Clara Beighley, Naomi Clark and Andrew Masters in various amounts, which according to Respondent\'s own testimony totaled $2,936.00. It further appears that the practice of Respondent in making such advances was known. One of the witnesses, Elijah Doster, testified that when he contacted Naomi Clark about employing Respondent, Doster told her that the Respondent would lend her money if she needed any. Naomi Clark confirmed this testimony. Andrew Masters testified that the subject of advancing money was discussed with Respondent on the first occasion that Masters visited him."

The Supreme Court of Ohio, in agreement with Opinion No. 288 of the Professional Ethics Committee of the American Bar Association, 41 A.B.A. Journal 33 (Jan. 1955)³ expressed its view that,

"It is obvious that where the advancement of living expenses is made, as in the instant case, to enable a client and his family to survive, any agreement by the disabled client to repay them would not have the effect of providing the attorney with any reasonable source of repayment other than the proceeds received on trial or settlement of his client\'s claim. In effect, the attorney has purchased an interest in the subject matter of the litigation that he is conducting. The canons contemplate that this will be proper only where the advance is for `expenses of litigation\'."

In the case of Dombey et al. v. Detroit, Toledo & Ironton Railroad, 351 F.2d 121 (C.A. 6, 1965) we recognized the Ruffalo opinion as apparently announcing the law of Ohio, albeit that it appeared to overrule earlier Ohio decisions. While we are not here required to follow Ohio law, we have thus been made aware of the thinking of its Bar and Supreme Court. The bar of Ohio, acting under its laws and the control of the Supreme Court of that state has a responsibility to maintain the prestige and integrity that should, without exceptions to expediency, be marks of a profession of which we also are members. We may, therefore, give respect to the product of its effort to arrive at and express conceptions as to what is and what is not unprofessional conduct by any Ohio lawyer whom we have admitted to practice before us.

We need not, and do not, announce a rule for this Circuit that, standing alone, the conduct involved in Charge No. 8 (the furnishing of living expenses to his clients) would prompt us to discipline Ruffalo. We do not reach that question. We are satisfied that with Ruffalo's previous conviction in 1957 of solicitation, and the conduct...