holding that “the Self-Incrimination Clause of the Fifth Amendment . . . 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”
How later courts described this case
- holding that “the Self-Incrimination Clause of the Fifth Amendment . . . 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”
- holding that attorneys are entitled to the privilege against self-incrimination because “[t]he 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”
- holding that a statute denying parolees access to the judicial process deprives them of property rights in violation of the due process clause of the Alaska Constitution
- holding that a lawyer had the right to assert the privilege against self-incrimination in a disciplinary proceeding and a state could not disbar a lawyer for refusing to produce incriminating documents
Written by the judges who cited it.
Distinguished
Distinguished by State v. Stroger, 185 N.J. Super. 124 (1981)
But even if it did not, Spevack is inapposite on its facts to this case.
The opinion
Mr. Justice Fortas,
concurring in the judgment.
I agree that Cohen v. Hurley, 366 U. S. 117 (1961), should be overruled. But I would distinguish between a lawyer’s right to remain silent and that of a public employee who is asked questions specifically, directly, and narrowly relating to the performance of his official duties as distinguished from his beliefs or other matters that are not within the scope of the specific duties which he undertook faithfully to perform as part of his employment by the State. This Court has never held, for example, that a policeman may not be discharged for refusal in disciplinary proceedings to testify as to his conduct as a police officer. It is quite a different matter if the State seeks to use the testimony given under this *520 lash in a subsequent criminal proceeding. Garrity v. New Jersey, ante, p. 493.
But a lawyer is not an employee of the State. He does not have the responsibility of an employee to account to the State for his actions because he does not perform them as agent of the State. His responsibility to the State is to obey its laws and the rules of conduct that it has generally laid down as part of its licensing procedures. The special responsibilities that he assumes as licensee of the State and officer of the court do not carry with them a diminution, however limited, of his Fifth Amendment rights. Accordingly, I agree that Spevack could not be disbarred for asserting his privilege against self-incrimination.
If this case presented the question whether a lawyer might be disbarred for refusal to keep or to produce, upon properly authorized and particularized demand, records which the lawyer was lawfully and properly required to keep by the State as a proper part of its functions in relation to him as licensor of his high calling, I should feel compelled to vote to affirm, although I would be prepared in an appropriate case to re-examine the scope of the principle announced in Shapiro v. United States, 335 U. S. 1 (1948). I am not prepared to indicate doubt as to the essential validity of Shapiro . However, I agree that the required records issue is not appropriately presented here, for the reasons stated by my Brother Douglas. On this basis I join in the judgment of the Court.