Anonymous Attorneys v. Bar Ass'n of Erie County

• Decision Date: 05 April 1977
• Court: New York Court of Appeals Court of Appeals
• Parties: , 362 N.E.2d 592 In the Matter of ANONYMOUS ATTORNEYS, Appellants, v. BAR ASSOCIATION OF ERIE COUNTY, Respondent. In the Matter of ANONYMOUS, an Attorney, Appellant, v. BAR ASSOCIATION OF ERIE COUNTY, Respondent.

Page 961

393 N.Y.S.2d 961

41 N.Y.2d 506, 362 N.E.2d 592

In the Matter of ANONYMOUS ATTORNEYS, Appellants, v. BAR ASSOCIATION OF ERIE COUNTY, Respondent.

In the Matter of ANONYMOUS, an Attorney, Appellant, v. BAR ASSOCIATION OF ERIE COUNTY, Respondent.

Court of Appeals of New York.

April 5, 1977.

Thomas P. Flaherty and Philip H. Magner, Jr., Buffalo, for appellants.

John B. Walsh, Buffalo, for respondent.

PER CURIAM.

The sole issue before the court is whether incriminating testimony given by an attorney, following a grant of immunity, may be used as evidence against him in a disciplinary proceeding.

The appellants, attorneys admitted to practice in the State of New York, were called to testify before a Grand Jury investigating alleged irregularities in the fixing of traffic tickets in the City Court of Buffalo. The District Attorney requested that they execute waivers of immunity which they declined to do, and the Grand Jury then voted them full immunity pursuant to CPL 50.10. The Grand Jury probe resulted in an indictment against certain officials and, subsequently, the appellants, still retaining immunity, testified at the trial of these officials. Thereafter, they were served with a petition and notice of motion instituted by the respondent Bar Association seeking to have them disciplined for their involvement in the activity concerning which they had testified. After service of the petitions, the appellants commenced an action in the Federal District Court seeking an injunction against prosecution of these disciplinary proceedings. The respondent's motion to dismiss the Federal action was granted on the ground of insufficiency under the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669, and that dismissal was affirmed (Anonymous J. v. Bar Assn. of Erie County, 2 Cir., 515 F.2d 435, cert. den., 423 U.S. 840, 96 S.Ct. 71, 46 L.Ed.2d 60). Thereafter, appellants moved in the Appellate Division for an order dismissing the petitions on the ground that they had been granted immunity from any penalties or forfeitures arising out of the transactions concerning which they had testified. The Appellate Division denied the motion to dismiss and granted leave to appeal to this court on a certified question. We affirm the order of the Appellate Division and answer the certified question in the affirmative.

Initially, we confront the question of statutory construction of the immunity statute. The appellants were granted immunity pursuant to and defined in CPL 50.10 which provides that: 'A person who has been a witness in a legal proceeding, and who cannot, except as otherwise provided in this subdivisi be convicted of any offense or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he gave evidence therein, possesses 'immunity' from any such conviction, penalty or forfeiture. A person who possesses such immunity may nevertheless be convicted of perjury as a result of having given false testimony in such legal proceeding, and may be convicted of or adjudged in contempt as a result of having contumaciously refused to give evidence therein.' The appellants strongly urge that the possible sanctions flowing from the disciplinary proceeding constitute a 'penalty or forfeiture' within the meaning of the statute. Without doubt the sanctions which may be imposed in such proceedings may have serious consequences resulting in impairment of repute, loss of clientele, or, in the case of disbarment, loss of license to practice a profession which is their very source of livelihood. Although serious in consequence, these sanctions are not penalties or forfeitures within the meaning of the Criminal Procedure Law. The penalties and forfeitures encompassed by this immunity are those imposed or sought to be imposed as punishment upon conviction for a criminal offense committed in violation of the Penal Law or other statute of the State (Matter of Klebanoff, 21 N.Y.2d 920, 289 N.Y.S.2d 755, 237 N.E.2d 75, cert. den., 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 110; Matter of Zuckerman, 20 N.Y.2d 430, 285 N.Y.S.2d 1, 231 N.E.2d 718, cert. den., 390 U.S. 925, 88 S.Ct. 856, 19 L.Ed.2d 985, reh. den., 390 U.S. 975, 88 S.Ct. 1031, 19 L.Ed.2d 1196; People ex rel. Karlin v. Culkin, 248 N.Y. 465, 162 N.E. 487; Matter of Rouss, 221 N.Y. 81, 116 N.E. 782; Matter of Ungar, 27 A.D.2d 925, 282 N.Y.S.2d 155, cert. den., 389 U.S. 1007, 88 S.Ct. 564, 19 L.Ed.2d 603). We hold that disciplinary sanctions are not punishment within the meaning of section 50.10. As Judge Cardozo explained in Matter of Rouss (supra, 221 N.Y. pp. 84--85, 116 N.E. p. 783): 'Membership in the bar is a privilege burdened with conditions. A fair private and professional character is one of them. Compliance with that condition is essential at the moment of admission; but it is equally essential afterwards (citations omitted). Whenever the condition is broken, the privilege is lost. To refuse admission to an unworthy applicant is not to punish him for past offenses. The examination into character, like the examination into learning is merely a test of fitness. To strike the unworthy lawyer from the roll is not to add to the pains and penalties of crime.' Whether the practice of law is termed a privilege (Matter of Rouss, supra) or a right (Matter of Levy, 37 N.Y.2d 279, 282, 372 N.Y.S.2d 41, 44, 333 N.E.2d 350, 352) disciplinary sanctions imposed for misconduct are not criminal penalties under the statute.

Immunity does not protect against all private consequences of the facts or involvement revealed by testimony given under its shelter. And some people, because of their relationship with government, may suffer governmentally imposed consequences of a serious nature (see Uniformed Sanitation Men Assn. v. Commissioner of Sanitation, 2 Cir., 426 F.2d 619, cert. den., 403 U.S. 917, 91 S.Ct. 2223, 29 L.Ed.2d 693, Note, Immunity Statutes and the Constitution, 68 Col.L.Rev. 959). The criterion is whether the sanctions are imposed in the context of a criminal proceeding, covered by immunity, or whether such subsequent proceedings are civil in nature where immunity does not necessarily extend. Disciplinary proceedings against an attorney for professional misconduct have consistently been held not to be criminal proceedings but rather are those which serve to protect the court and society from the practice of law by persons who fail to maintain the necessary standards of integrity and probity (Matter of Zuckerman, supra; Matter of Randel, 158 N.Y. 216, 52 N.E. 1106; Matter of Dougherty, 7 A.D.2d 163, 180 N.Y.S.2d 971, affd., 7 N.Y.2d 869, 196 N.Y.S.2d 999, 164 N.E.2d 870, remittitur amd. 7 N.Y.2d 965, 198 N.Y.S.2d 615, 166 N.E.2d 192, Judiciary Law, § 90; Chilingirian, State Disbarment Proceedings and the Privilege Against Self-Incrimination, 18 Buffalo L.Rev. 489). The immunity statute, prohibiting use of covered testimonial evidence in criminal proceedings, does not bar the use of such evidence in disciplinary proceedings brought against an attorney on the grounds of misconduct; and this has been the established law in this State for over 40 years (Matter of Solovei, 250 App.Div. 117, 121, 293 N.Y.S. 640, 644, affd., 276 N.Y. 647, 12 N.E.2d 802).

The appellants also contend that the Fifth Amendment privilege against self incrimination precludes the use of any immunity-clothed statements in a disciplinary proceeding. The appellants were concededly granted transactional immunity in return for their Grand Jury and trial testimony. They assert that their testimony was compelled by the grant of immunity arguing that subsequent refusal would result in contempt charges and as such must be coextensive with the privilege against self incrimination which it replaced and that privilege must be deemed to protect against the use of compelled self-incriminating statements in disciplinary proceedings. This argument has a...