Ungar, Matter of

• Decision Date: 25 April 1967
• Parties: In the Matter of Sidney J. UNGAR, an Attorney.
• Court: New York Supreme Court — Appellate Division

Page 155

282 N.Y.S.2d 155

27 A.D.2d 925

In the Matter of Sidney J. UNGAR, an Attorney.

Supreme Court of New York, Appellate Division,

First Department.

April 25, 1967.

Respondent's motion for reconsideration is denied. 269 N.Y.S.2d 163. The motion is grounded on Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574. Respondent expressly abandoned his reliance on his federal privilege against self-incrimination (Fifth Amendment to the Constitution of the United States). He did not raise the question in the Court of Appeals or on his application for a writ of certiorari to the Supreme Court, Ungar v. Ass'n of Bar of City of New York, 385 U.S. 1006, 87 S.Ct. 712, 17 L.Ed.2d 545. Spevack prohibits a waiver of the privilege under the compulsion of the threat of loss of employment. It does not inhibit the use in a disciplinary proceeding of testimony resulting from respondent's immunity from prosecution therefor. The Fifth Amendment proscribes compelled testimony in 'any criminal case'. Although forfeiture proceedings have been held to be in the nature of criminal proceedings (One 1958 Plymouth Sedan v. Com. of Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170), it has not been held that a disciplinary proceeding is in the nature of a criminal cause. The constitutional question respondent belatedly seeks to revive does not affect the charges based on the contempt adjudication against the respondent (Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921) and respondent's contumacious conduct in the trial of People v. Jack, 12 N.Y.2d 721, 233 N.Y.S.2d 772, 186 N.E.2d 128, heretofore sustained (Matter of Ungar, 25 A.D.2d 322, 269 N.Y.S.2d 163, app. dismissed 18 N.Y.2d 690, cert. denied 385 U.S. 1006, 87 S.Ct. 712, 17 L.Ed.2d 545), and are sufficient to warrant disbarment.

BOTEIN, P.J., and RABIN, McNALLY, EAGER, and STEUER, JJ., concur.