State v. Spiegel, No. 97-1341

• Court: Court of Appeal of Florida (US)
• Writing for the Court: PER CURIAM
• Citation: 710 So.2d 13
• Parties: 23 Fla. L. Weekly D615 The STATE of Florida, Appellant, v. John SPIEGEL, Appellee.
• Docket Number: No. 97-1341
• Decision Date: 04 March 1998

Page 13

710 So.2d 13 23 Fla. L. Weekly D615 The STATE of Florida, Appellant,
v.
John SPIEGEL, Appellee. No. 97-1341. District Court of Appeal of Florida,
Third District. March 4, 1998.
Rehearing Denied June 10, 1998.

Page 14

Robert A. Butterworth, Attorney General, and Mark Rosenblatt, Assistant Attorney General, for appellant.

James K. Beckham, Miami, for appellee.

Before GERSTEN, FLETCHER and SHEVIN, JJ.

PER CURIAM.

Appellant, the State of Florida, appeals a county court order in a criminal proceeding granting the suppression of an attorney's statements made during Florida

Page 15

Bar disciplinary proceedings. We affirm concluding that an attorney's statements made during a Florida Bar Grievance Committee interview do not operate as a testimonial waiver of the Fifth Amendment privilege against self-incrimination for the purpose of offering such statements in a subsequent criminal proceeding as direct evidence of guilt.

This case emanates from a divorce maelstrom between two attorneys. Appellee, John Spiegel ("Spiegel"), worked for thirteen years as a police officer prior to becoming an attorney. He filed for divorce against Karen Haas ("Haas"), a former prosecutor, in 1994.

In the Spring of 1995, Haas filed a complaint against Spiegel with The Florida Bar. Disciplinary proceedings were commenced and Spiegel responded in writing as required. ¹ Spiegel was then asked to submit to an interview by The Florida Bar Grievance Committee member assigned to the case. ² Spiegel complied and made the oral statements at the interview which are the subject of the suppression order on appeal.

Thereafter, in September of 1995, an ex-parte injunction for protection against domestic violence was issued against Spiegel. The 15-day temporary injunction restrained Spiegel from abusing or harassing Haas, or from contacting her either directly or indirectly. On February 7, 1996, at Haas' urging, the Dade County State Attorney's Office filed a misdemeanor information against Spiegel accusing him of violating the temporary injunction by telephoning, contacting or communicating with Haas, directly or indirectly.

After these charges were filed, the Bar Grievance Committee held a hearing regarding the grievance complaint against Spiegel. Spiegel was advised of his Fifth Amendment rights at the hearing and declined to speak about the misdemeanor charge.

In August of 1996, the State decided to forego the misdemeanor charge and filed a petition for rule to show cause. The petition expanded the accusations against Spiegel to include "abuse and harassment" by unlawfully contacting Haas through the mail between September 7, 1995 and December 12, 1995. The court issued a rule to show cause prompting Spiegel to seek suppression of the statements he made at the Bar Grievance interview.

At the hearing on Spiegel's motion to suppress, Spiegel explained that, as a former police officer, he was familiar with the "Garrity" rule. The "Garrity" rule prevents statements made in disciplinary investigations under threat of dismissal from being used as evidence in a subsequent criminal prosecution. See Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). ³ Spiegel feared he would lose his license to practice law if he did not agree to the grievance interview and believed he was required to answer questions under Bar rules. Spiegel further stated he would not have agreed to the interview had he known

Page 16

responses to questions were not required. The grievance committee member never advised Spiegel that he had the right not to meet with her or that he had the right not to respond.

The county court found that both the grievance committee member and Spiegel believed Bar rules required Spiegel to respond to the committee member's questions verbally and in writing. It further determined that Spiegel submitted to the interrogation because he believed that failure to respond or cooperate would result in disbarment.

The county court granted the motion to suppress finding that the statements were made in violation of Spiegel's privilege against self-incrimination. The county court then certified to this Court as a question of great public importance the legal issue of whether statements made by an attorney at a Florida Bar interview, when the attorney believes he is compelled to answer, may be suppressed in a subsequent criminal prosecution as a violation of the privilege against self-incrimination. We answer the certified question affirmatively.

The Fifth Amendment privilege against self-incrimination is to be liberally construed and may be invoked as long as a reasonable possibility of prosecution exists for crimes suggested by the response. See Maness v. Meyers, 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975); Zicarelli v. New Jersey State Comm'n of Investigation, 406 U.S. 472, 92 S.Ct. 1670, 32 L.Ed.2d 234 (1972); Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951). The privilege extends to attorneys, and an attorney may not be disbarred for invoking the privilege in bar disciplinary proceedings. See Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967). ⁴ As noted by the trial judge in his suppression order, an attorney has "a right to take refuge under the Fifth Amendment if his answer would tend to incriminate him." Sheiner v. State, 82 So.2d 657, 661 (Fla.1955). See DeBock v. State, 512 So.2d 164 (Fla.1987); In re Shearer, 377 So.2d 970 (Fla.1979).

The right to assert the privilege must be specifically invoked and may be waived in a particular proceeding by testimony without objection. See Black v. State Bar of California, 7 Cal.3d 676, 103 Cal.Rptr. 288, 499 P.2d 968 (1972); State ex. rel. Arnold v. Revels, 100 So.2d 51 (Fla.1957); Hargis v. Florida...