Spevack v. Klein, No. 62

CourtUnited States Supreme Court
Writing for the CourtMr. Justice DOUGLAS announced the judgment of the Court and delivered an opinion in which THE CHIEF JUSTICE
Citation385 U.S. 511,87 S.Ct. 625,17 L.Ed.2d 574
Decision Date16 January 1967
Docket NumberNo. 62
PartiesSamuel SPEVACK, Petitioner, v. Solomon A. KLEIN

385 U.S. 511
87 S.Ct. 625
17 L.Ed.2d 574
Samuel SPEVACK, Petitioner,

v.

Solomon A. KLEIN.

No. 62.
Argued Nov. 7, 1966.
Decided Jan. 16, 1967.

Page 512

Lawrence J. Latto, Washington, D.C., for petitioner.

Solomon A. Klein, for respondent, pro se.

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, 81 S.Ct. 954, 6 L.Ed.2d 156. 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, 84 S.Ct. 1489, 12 L.Ed.2d 653.

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, 81 S.Ct., at 959, 960) 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., 366 U.S. at 127—129, 81 S.Ct. at 960—962. 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, 84 S.Ct. 1489, 12 L.Ed.2d 653. 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, 84 S.Ct., at 1495. 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., 378 U.S. at 17, 84 S.Ct. at 1498) and urged that it be fol-

Page 514

lowed. 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., 378 U.S. at 33—38, 84 S.Ct. 1506—1509.

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, 84 S.Ct., at 1493.2

Page 515

In this context 'penalty' is not restricted to fine or imprisonment. It means, as we said in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, the imposition of any sanction which makes assertion of the Fifth Amendment privilege 'costly.' Id., 380 U.S. at 614, 85 S.Ct. at 1233. 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., 380 U.S. at 615, 85 S.Ct. at 1233. 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, 6 S.Ct. 524, 534—535, 29 L.Ed. 746, 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, 6 S.Ct., at 535.

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, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542. As we recently stated in Miranda v. State of Arizona, 384 U.S. 436, 461, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694, '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 Higher Education of City of New York, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, and the policemen in Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562,3 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, 68 S.Ct. 1375, 92 L.Ed. 1787, 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 actions, claims and proceedings.'4 It provided that in cases involving 'contingent fee compensation' attorneys

Page 517

for all the parties shall preserve 'the pleadings, records and other papers pertaining to such action, claim and proceeding, and also all data and memoranda of the disposition thereof, for the period of at least five years after any settlement or satisfaction of the action, claim or proceeding or judgment or final order thereon, or after the dismissal or discontinuance of any action or proceeding brought.'

The documents sought in the subpoena were petitioner's daybook, cash receipts book, cash disbursements book, checkbook stubs, petty cashbook and vouchers, general ledger and journal, canceled checks and bank statements, passbooks and other evidences of accounts, record of loans made, payroll records, and state and federal tax returns and worksheets relative thereto.

The Shapiro case dealt with a federal price control regulation requiring merchants to keep sales records. The Court called them records with 'public aspects,' as distinguished from private papers (335 U.S., at 34, 68 S.Ct., at 1393); and concluded by a divided vote that their compelled production did not violate the Fifth Amendment. We are asked to overrule Shapiro. But we find it unnecessary to reach it.

Rule 5, requiring the keeping of records, was broad and general—'the pleadings, records and other papers pertaining to such action, claim and proceeding, and also all data and memoranda of the disposition thereof.' The detailed financial aspects of contingent-fee litigation demanded might possibly by a broad, generous construction of the Rule be brought within its intendment. Our problem, however, is different. Neither the referee of the inquiry, nor counsel for the inquiry, nor the Appellate Division of the New York Supreme Court questioned the applicability of the privilege against self-incrimination to the records. All proceeded on the basis that petitioner could invoke the privilege with respect to the

Page 518

records, but that the price he might have to pay was...

To continue reading

Request your trial
631 practice notes
  • McKune v. Lile, No. 00-1187.
    • United States
    • United States Supreme Court
    • June 10, 2002
    ...program amounts to unconstitutional compulsion. Instead, he relies on the so-called penalty cases, see, e. g., Spevack v. Klein, 385 U. S. 511, which involved free citizens given the choice between invoking the Fifth Amendment privilege and sustaining their economic livelihood, see, e. g., ......
  • Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, No. 83-2166
    • United States
    • United States Supreme Court
    • May 28, 1985
    ...apply fully to attorney disciplinary proceedings because, obviously, "lawyers also enjoy first-class citizenship." Spevack v. Klein, 385 U.S. 511, 516, 87 S.Ct. 625, 628, 17 L.Ed.2d 574 (1967). Where there is an "absence of fair notice as to the reach of the grievance procedure and the prec......
  • Warden v. State Bar, No. A072485
    • United States
    • California Court of Appeals
    • March 13, 1997
    ...is entitled to constitutional protection against arbitrary or unconstitutional governmental abrogation. (See Spevack v. Klein (1967) 385 U.S. 511, 516, 87 S.Ct. 625, 628-629, 17 L.Ed.2d 574; Barnard v. Thorstenn (1989) 489 U.S. 546, 553, 109 S.Ct. 1294, 1299-1300, 103 L.Ed.2d 559.) If Warde......
  • Alsager v. Bd. of Osteopathic Med. & Surgery, No. 47367-4-II (
    • United States
    • Court of Appeals of Washington
    • November 15, 2016
    ...RCW 18.130.160, the statutory scheme compels disclosure and general cooperation with disciplinary proceedings. See Spevack v. Klein , 385 U.S. 511, 516, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967).4 Alsager seems to take the position that the term “quasi-criminal” denotes a legally significant cate......
  • Request a trial to view additional results
631 cases
  • McKune v. Lile, No. 00-1187.
    • United States
    • United States Supreme Court
    • June 10, 2002
    ...program amounts to unconstitutional compulsion. Instead, he relies on the so-called penalty cases, see, e. g., Spevack v. Klein, 385 U. S. 511, which involved free citizens given the choice between invoking the Fifth Amendment privilege and sustaining their economic livelihood, see, e. g., ......
  • Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, No. 83-2166
    • United States
    • United States Supreme Court
    • May 28, 1985
    ...apply fully to attorney disciplinary proceedings because, obviously, "lawyers also enjoy first-class citizenship." Spevack v. Klein, 385 U.S. 511, 516, 87 S.Ct. 625, 628, 17 L.Ed.2d 574 (1967). Where there is an "absence of fair notice as to the reach of the grievance procedure and the prec......
  • Warden v. State Bar, No. A072485
    • United States
    • California Court of Appeals
    • March 13, 1997
    ...is entitled to constitutional protection against arbitrary or unconstitutional governmental abrogation. (See Spevack v. Klein (1967) 385 U.S. 511, 516, 87 S.Ct. 625, 628-629, 17 L.Ed.2d 574; Barnard v. Thorstenn (1989) 489 U.S. 546, 553, 109 S.Ct. 1294, 1299-1300, 103 L.Ed.2d 559.) If Warde......
  • Alsager v. Bd. of Osteopathic Med. & Surgery, No. 47367-4-II (
    • United States
    • Court of Appeals of Washington
    • November 15, 2016
    ...RCW 18.130.160, the statutory scheme compels disclosure and general cooperation with disciplinary proceedings. See Spevack v. Klein , 385 U.S. 511, 516, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967).4 Alsager seems to take the position that the term “quasi-criminal” denotes a legally significant cate......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT