385 U.S. 511 (1967), 62, Spevack v. Klein

Docket Nº:No. 62
Citation:385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574
Party Name:Spevack v. Klein
Case Date:January 16, 1967
Court:United States Supreme Court
 
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Page 511

385 U.S. 511 (1967)

87 S.Ct. 625, 17 L.Ed.2d 574

Spevack

v.

Klein

No. 62

United States Supreme Court

January 16, 1967

Argued November 7, 1966

CERTIORARI TO THE COURT OF APPEAL OF NEW YORK

Syllabus

In a proceeding to discipline petitioner, a member of the New York bar, for professional misconduct for failure to produce demanded financial records and for refusal to testify at a judicial inquiry, petitioner defended on the ground that production of the records and his testimony would tend to incriminate him. The Appellate Division of the New York Supreme Court ordered him disbarred, holding that the privilege against self-incrimination was not available in light of Cohen v. Hurley, 366 U.S. 117. The New York Court of Appeals affirmed on the authority of Cohen v. Hurley and on the further ground that the Fifth Amendment privilege does not apply to a demand not for oral testimony, but for records required by the Appellate Division to be kept by an attorney.

Held: The judgment is reversed. Pp. 512-520.

16 N.Y.2d 1048, 213 N.E.2d 457, 17 N.Y.2d 490, 214 N.E.2d 373, reversed.

MR. JUSTICE DOUGLAS, joined by THE CHIEF JUSTICE, MR. JUSTICE BLACK and MR. JUSTICE BRENNAN, concluded that:

1. The Self-Incrimination Clause of the Fifth Amendment, which has been absorbed in the Fourteenth, extends its protection to lawyers, and should not be watered down by imposing the dishonor of disbarment and the deprivation of livelihood as a penalty for asserting it. Cohen v. Hurley, supra, is overruled. Pp. 514-516.

2. Since petitioner had been disbarred on the theory that the privilege against self-incrimination was applicable to the demanded records, but that the invocation of the privilege could lead to disbarment, his disbarment cannot be affirmed on the ground that the privilege was not applicable thereto in the first place, as that would deny him an opportunity to show that the records demanded were outside the scope of the court rule requiring attorneys to keep records relating to contingent fee cases, and that the records demanded had no "public aspects." Pp. 516-519.

MR. JUSTICE FORTAS concluded that:

1. Cohen v. Hurley should be overruled, and petitioner cannot be disbarred for asserting his privilege against self-incrimination. Pp. 519-520.

Page 512

2. The right of a lawyer who is not an employee of the State to remain silent is to be distinguished from that of a public employee who is asked questions by his employer directly relating to the performance of his official duties. P. 519.

3. As stated in MR. JUSTICE DOUGLAS opinion, the issue of the validity and scope of the required records doctrine is not appropriately presented here. P. 520.

DOUGLAS, J., lead opinion

MR. JUSTICE DOUGLAS announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE, MR. JUSTICE BLACK and MR. JUSTICE BRENNAN concur.

This is a proceeding to discipline petitioner, a member of the New York Bar, for professional misconduct. Of the various charges made, only one survived, viz., the refusal of petitioner to honor a subpoena duces tecum served on him in that he refused to produce the demanded financial records and refused to testify at the judicial inquiry. Petitioner's sole defense was that the production of the records and his testimony would tend

Page 513

to incriminate him. The Appellate Division of the New York Supreme Court ordered petitioner disbarred, holding that the constitutional privilege against self-incrimination was not available to him in light of our decision in Cohen v. Hurley, 366 U.S. 117. See 24 A.D.2d 653. The Court of Appeals affirmed, 16 N.Y.2d 1048, 266 N.Y.S.2d 126, 213 N.E.2d 457, 17 N.Y.2d 490, 267 N.Y.S.2d 210, 214 N.E.2d 373. The case is here on certiorari which we granted to determine whether Cohen v. Hurley, supra, had survived Malloy v. Hogan, 378 U.S. 1.

Cohen v. Hurley was a five-to-four decision rendered in 1961. It is practically on all fours with the present case. There, as here, an attorney relying on his privilege against self-incrimination refused to testify and was disbarred. The majority of the Court allowed New York to construe her own privilege against self-incrimination so as not to make it available in judicial inquiries of this character (366 U.S. at 125-127) and went on to hold that the Self-Incrimination Clause of the Fifth Amendment was not applicable to the States by reason of the Fourteenth. Id., at 127-129. The minority took the view that the full sweep of the Fifth Amendment had been absorbed into the Fourteenth, and extended its protection to lawyers as well as other persons.

In 1964, the Court, in another five-to-four decision, held that the Self-Incrimination Clause of the Fifth Amendment was applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1. While Cohen v. Hurley was not overruled, the majority indicated that the principle on which it rested had been seriously eroded. 378 U.S. at 11. One minority view espoused by Mr. Justice Harlan and Mr. Justice Clark stated that Cohen v. Hurley flatly decided that the Self-Incrimination Clause of the Fifth Amendment was not applicable against the States (id., at 17) and urged that it be followed.

Page 514

The others in dissent -- Mr. Justice White and Mr. Justice Stewart -- thought that on the facts of the case the privilege was not properly invoked, and that the state trial judge should have been sustained in ruling that the answers would not tend to incriminate. Id., at 33-38.

The Appellate Division distinguished Malloy v. Hogan on the ground that there the petitioner was not a member of the Bar. 24 A.D.2d at 654. And the Court of Appeals rested squarely on Cohen v. Hurley as one of the two grounds for affirmance.1

And so the question emerges whether the principle of Malloy v. Hogan is inapplicable because petitioner is a member of the Bar. We conclude that Cohen v. Hurley should be overruled, that the Self-Incrimination Clause of the Fifth Amendment has been absorbed in the Fourteenth, that it extends its protection to lawyers as well as to other individuals, and that it should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for asserting it. These views, expounded in the dissents in Cohen v. Hurley, need not be elaborated again.

We said in Malloy v. Hogan:

The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement -- the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence.

378 U.S. at 8.2

Page 515

In this context, "penalty" is not restricted to fine or imprisonment. It means, as we said in Griffin v. California, 380 U.S. 609, the imposition of any sanction which makes assertion of the Fifth Amendment privilege "costly." Id. at 614. We held in that case that the Fifth Amendment, operating through the Fourteenth, "forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." Id. at 615. What we said in Malloy and Griffin is in the tradition of the broad protection given the privilege at least since Boyd v. United States, 116 U.S. 616, 634-635, where compulsory production of books and papers of the owner of goods sought to be forfeited was held to be compelling him to be a witness against himself.

It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.

116 U.S. at 635.

Page 516

The threat of disbarment and the loss of professional standing, professional reputation, and of livelihood are powerful forms of compulsion to make a lawyer relinquish the privilege. That threat is indeed as powerful an instrument of compulsion as "the use of legal process to force from the lips of the accused individual the evidence necessary to convict him. . . ." United States v. White, 322 U.S. 694, 698. As we recently stated in Miranda v. Arizona, 384 U.S. 436, 461, "In this Court, the privilege has consistently been accorded a liberal construction." It is in that tradition that we overrule Cohen v. Hurley. We find no room in the privilege against self-incrimination for classifications of people so as to deny it to some and extend it to others. Lawyers are not excepted from the words "No person . . . shall be compelled in any criminal case to be a witness against himself"; and we can imply no exception. Like the school teacher in Slochower v. Board of Education, 350 U.S. 551, and the policemen in Garrity v. New Jersey,3 ante, p. 493, lawyers also enjoy first-class citizenship.

The Court of Appeals alternately affirmed the judgment disbarring petitioner on the ground that, under Shapiro v. United States, 335 U.S. 1, and the required records doctrine he was under a duty to produce the withheld records. The Court of Appeals did not elaborate on the point; nor did the Appellate Division advert to it. At the time in question, the only Rule governing the matter was entitled "Preservation of records of...

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