Brief for petitoner — Cohen v. Hurley (No. 84)

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~ : ai IN THE z : Py

Supreme Court of the United States

ime, Erte a October*Term, 1960 — ;

; ; No. 84

In the Matter of

ies ALBERT MARTIN COHEN. C

. }’, ‘.* he D

: . DENIS M. HURLEY. |

) ; : i. spondent

‘ ON WRIT OF CERTIORARI TO THE COURT GF APPEALS OF

; THE STATE OF NEW YORK AND THE SUPREME COURT OF

Lf THE STATE OF NEW ‘YORK, APPELLATE DIVISION SECOND

f DEPARTMENT, JOINTLY OR IN THE ALTERNATIVE

f acces

BRIEF FOR THE PETITIONER :

. s

f °

Turopere Kuesxoe

: ; Counsel for @ tiftroner

: 1D Broad Street

’ . ° NeW York 5, N.Y.

’

| 0

? a Case Paras! *. eater: S Bhekwan 3.

INDEX

Citations to Opinions SE Sossacacunckcneceaces

Seiad. Slag es wa dak aed baa eo eed heen oaks

IE IE bos kp btnineacecvecvcodentvdues

Constitutional Provision Involved .........2......

‘Statement ,

Summary of Argument ............... Seeees aN

Argument :—-

I. New York acted arbitrarily and denied due

process to petitioner when it disbarred: him

without any evidence of misconduct, unfitness

or bad character, but solely because he re-

fused admittedly in good faith, as was -his

right, to answer questions before a general

judicial ‘inquiry, in reliance on his privilege

against self-incrimination ..............++.

A. The right to practice law cannot be denied

arbitrarily... 1.0.0... eseeeeesceeeeees

Assertion of the privilege against self-

' incrimination in good faith in any case

will not support any inference of afy lack

of good moral charactér or of any miscon-

* duet or unfitness a, ea

Petitioner’s invocation of the privilege,

under the circumstances of this case, will

not support any inference of any lack of

good moral character, or of any miscon-

duct or unfitness hele Was ice eek aus ie uars

i. *°

at Bn 3 PAGE

D. No State can constitutionally make a re-

fusal to testify a per se ee to

practice law ...... Ornccasvbccesbeces ts 21

II. By summoning petitioner. to a preliminary

inquiry, threatening him with undisclosed

information of professional misconduct and

when he refused to testify in reliance on his

_ privilege against self-incrimination, disbar-

ring him solely for that refusal instead of

affording him a full hearing based on the

claimed adverse aad ence, the State denied

petitioner due pr pf law .......0..008 = ae

>” - .

III. The questions presented have not been *e-

solved by this Court’s decisions in cases

‘involving public employees, as the right of a °

private eitizen to pursue his calling must be

afforded greater protection than the right of

a public employee to continue on the public

payroll, if the due process clause i is not to be

judicially exterminated Serene paapnessile es 34

Conclusion... ..... Lat WT Tae aa ore 41

CrraTIons 7

Cases

Alpert v. tes of Governors of City Hospital, 286

‘App. Div. 542, 145 N. Y. S. 2d 534 (4th Dept.) . 31

Anonymous v. Baker, 360 U. S. 287 .............. : 3

- Bailey v. Richardson, 182 F. 2d 46 (D.C. Cir. ), aff’d

by equally divided court 341 U. S. 918 :.......... 35

Bates v. City of Little Rock, 361 U. S. 516, 80 S. Ct.

CEE AN Suplcecesuubesecaseab¥euaeuwhecesuces cans - 33.

Beilan v. Deesd of Bducation, 357 U. S. 399... .11, 34, 37, 39

Burke, In re, 351 P. 24 169 (S. Ct. of Arizona) ewana 26, 30

iii

Cammer vy. United States, 350 U. S. 399 .......... a...

Cantelline v. MeClellan, 282 N. Y. 166, 25 NE. 2d 972 38

Carter, In re, 177 F. 2d 75 (D. C. Cir. ), cert. denied ,

ee. oN aa a widens 18, 26

. Carter, In re, 192 F. 2d 15 (D. C. Cir.), cert. denied

“342 U. S262 0... cee e een As ie 26,3)

Cioffi, In re, 192 N. Y. S. 2nd 754 (Kings Co. Ct.),

aff’d by App. Div. (2nd Dept.), N: Y. L. J., June

28, 1960, p. 1, cols. 1-6,, aff'd by Ct. of. Appeals, *

N.-Y. L. J., July 12, 1960, p. 6, col. 34........64. 9, 25

Cook, Matter of, 242 App. Div. 224, 973 N . ¥. 8. 13

DN, SR IS eee seen ee 17

Doyle, Matter of, 257 N. Y. 244, 177 N. E. 489... oe

-Eldridge, Matter of, 82 N. Y. 161, 37 Am. Rep. 508 .. 28, 33

Ellis, Matter of, 282 N. Y. 435, 26 N. E. 2d 967 2). 20,38

Farrell, Matter of, 237 App. Div. 678, 262 N.Y.S\.

We ee ND eth ie cashes sebansaesssccses \W

Fisch, Matter of, 231 App. Div. 192,246 N. Y. S. 760

EE ca ccccatuantenekaheqiesuscoveusasss 17, 28

‘Florida v. Sheiner, 112 So..2nd 571 (S. Ct. of Fla.) . 37

* Garland, Ex parte, 4 Wall. 333 ....... nya ends 10, 11, pee

Goldsmith v. Board of Tax Appeals, 270 U.S. 117. .10, 26, 27 -

Grae, Matter of, 282 N. Y. 428, 26 N. FE. Od Oe esas 20

Grunewald v. United States, 353 U. S. 391 ......7, 13, 14,

ae a ra passim

Hecht v. Monaghan, 307 N. Y. 461, 121 N. FE: 2d 421 .. 31,37 .

Holland, In re,/377 Dl. 346, 36 N. BE. 2d 543 (S.C t. a

We NE sical ccasuweccdsdstscduccyatiaceSeee ess 20, 37

. Integration Rule of the Florida Bar, In re, 103 So.

yy ft: ee 2, 8 eS error rrr 14, 24

Joseph, Matter of, 125 App. Div. 544, 10k. Y. S.

Se Ge BN wanes. Kacupcccavcnieceseanssss —

. PAGE

alias Matter of, 188 N 7s ¥, 49, 80 N. E. 570 20

Kaufmann, Matter of, 245 N. Y. 423, 157 N. E. 730. 28

Konigsberg v. State Bar of California, 353 U. S

GR ee pe 7,8, 11, Sag passim

Konigsbers v. State Bar of. California, 52 Cal. 2d

769, 344 P. 2d 777, cert. granted 362 U.S. 910 . 21

Laughlin v. Wheat, 95 F. 2d 101 (D.C. Cir.) ...... 96

Lerner v. Casey, 357 U. S. 468 ................. 34, 37, 39

Los Angeles County Pioneer Society, Matter of, 217

oe | er ene is dentate ae 26

Lynch, Matter of, 227 App. Div. 477, 238 N. Y. S. 482.

(1st Dept.) esecccee CCCOCTOCHE TES OCC CREO OATES 28

Miami v. South Miamj Coach Lines, Inc., 59 So. 2d 52 :

(S. Ct. of MOE Sd00G bu ce apwaeea Rl red cere ele nce 32

Nelson and Globe v. County of Los Angeles, 362

ieee ccusac aged indennsss weee tae cadwinke Kel 11, 34, 39 -

Opinion of the Justices, 332 Mass. 763, 126 N. E. 2d

100 (S. J. C. of Mass.) bsenswaedeceenes inviaeen 38

Parker v. Board of Barber Examiners, 84 So. 2d 80 °

PO ae St ets Tha ena Na a en ne < 3.

Parker. v: Lester, 227 F. 2d 708 (9th Cir. Dy oncata 11, 26, 31, 36

Quinn v. United States, 349 U. S. 155 .......: .7, 14, passim

Robinson, Ex parte, 19 Wall. 505 .......: :10, 11, 26, passim

Schyare v. Board of Bar Examiners, 353 U. S. 232

7,11, passim

Sliciner v. Florida, 82 So. 2d 657 (8. Ct. of Fla.)

10, 20, passim

Slochower v. Board of Education, 350 U.S. 551 .... 7, 24

Solovei, Matter of,.276 N. Y. 647, 12 N. E. 2d 802,

’ aff’g without opinion 250 App. Div. 117, 293 |

N. Y: 8.640 (2nd Dept.) ..0..ccvcccccccccccvets 20

Speiser v. Randall, 357 U.S. 513............. pekees 17

Tot v. United States, 319 US. 463 .../..0....00. 47

0 me

PAGE

Ulimann v. United States, 350 U. S. 422 ........6-- 7, 24

United Public Workers v. hooey 330 U.S. 7 ee

United States v. Hicks, 37 F.. 2d 289 ( 9th Cir. <a 26

‘United States ex rel. Touhy v. Ragan, 340 U.S. 462 23

_ Wiemann v. Updegraff, 344 U.S. 183 véevusnenes aa

Miscellaneous

Gellhorn, Individual Freedom and Governmental

Restraints (1957) ......--.- cece eee reece eee eeee 20, 32.

Griswold, The Fifth Amendment ‘Today (1955) .... 7,15

Taylor, Grand Inquest (1955) .../....0:.0e0eee ee 14, 20

Weigel, The Fifth Amendment, and, the Lawyers

ee ‘34 Neb. L. Ret. 586 (195% _, eo 19

IN THE -

Supreme Court of the United States

October Term, 1960 | .

; “No. 84 -

: In the Matter of

Aftpert Martin Couey,

Petitioner,

— :

Denis M. Huruey, ee

ee Respondent...

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF

THE STATE OF NEW YORK AND THE SUPREME COURT OF

THE STATE OF NEW. YORK, APPELLATE*DIVISION, SECOND

DEPARTMENT, JOINTLY OR IN = ALTERNATIVE. —

ay. a

\ . ‘

BRIEF FOR THE PETITIONER .

Opinions Below |

The majority, concurring and dissenting opinions of the

Supreme Court of the Stat: of New York, Appellate Divi-

sion, Second Department (R. 62-79) are reported in 9 ‘App.

Div. 2d 436, 195 N. Y. 8. 2d 990. The majority and dissent-

ing opinions of the Court of Appeals of the State of New

York (R. 81-92) are reported in 7 N. Y. 2d 488, 166 N. E. 2d

672. The Court of Appeals’ amended remittitur to the Ap-

pellate Division (K. 95, 96) is not reported.

Jurisdiction

The judgment of the Court of Appeals of New York was ¢

entered on April 1, 1960. The petition for a writ of cer-

tiorari was filed May 7, 1960, and was granted June 6, 1960.

The "jurisdiction of this Court rests on 28 U, S. C. See.

1257 (3). Beers i

Questions Presented

1. May a ‘State, consistent with the due process of law

guaranteed by the Fourteenth Amendment, disbar an at- -

_ torney, absent any evidence of misconduct, unfitness or bad

character and solely because he refused, in good faith and

on.the advice of counsel, to answer questions before a gen-

eral judicial inquiry in reliance on his privilege against

self-incrimingtion? , |

2. Maya State, claiming to have undisclosed information

_ of professional misconduct by an attorney, consistent with

due process, summon that attorney to a preliminary inquiry,

threaten him with that information without - ‘disclosing its

. nature, and on his refusal to testify in reliance on his

privilege against sélf-incrimination, disbar him: for that

refusal without. affording him a full hearing based on the

Claimed adverse information’ saa

Constitutional Provision Involved

United States Constitution, Amendment XIV, Section oF

1, Clause 2: .

‘* . . . nor shall any State deprive any person of

. « liberty, or property without due process of

(is 6< fae ce

Statement

On January 21, 1957, the Appellate” Division, Second

Department, ordered a general judicial inquiry (herein- —

after called the ‘‘Inquiry’’) into solicitation. and related

practices in the County of Kings, New York (R. 18-20).

From March 1957 to June 1958 the Inquiry’s staff exam-

ined informally about 2,500 persons. See Anonymous Vv.

Baker, 360. U. S. 287, 292. Subsequently, , petitioner, in

response to subpgenas served upon him, appeared before

the inquiry on October 28, 1958, Mr. Justice Arkw right,

then presiding, and on May 19, 1959, Mr. Justice Baker,

then presiding (R. 22-61). es

Dering the course of his interrogation, petitioner was

- assured by the Inquiry that he had not been ealled as .a

prospective defendant or respondent (R. 32); that the

‘Inquiry was not an adversary proceeding (R. 32); and that

-eates your participation in professional misconduct .

he was not being chargéd with having committed any of

the illegal practices with which the Inquiry was concerned .

(K. 32). apnea, he was informed by the Inquiry’s in-

terrogator that, . . . we have information that indi-

”

(R. 32). The nature of many of the questions asked plainly

suggested that statements adverse to petitioner had heen

made by one or more of the numerous unidentified inform-

ants previously interrogated by the Inquiry’s staff. Never

theless, no evidence of petitioner's alleged ccs ae .

misconduct was ever produced,-no further .disclosure of.

the allegedly adverse information was ever provided, and

no source was ever identified. Thus, petitioner had no op-

portunity to confront or cross-examine his alleged accusers

or otherwise avail himself of the protection of the due pro-

cess clause. Petitioner in this situation, in good faith,

heeded his counsel’s advice and invoked his constitutional

privilege against self-incrimination.* He had answered a

number of questions and indicated a willingness to answer

* more, but yielded to his counsel's admonition to refrain

from doing so lest he waive his constitutional privilege

(R.. 43). | :

‘It was conceded, as it had to be, that-petitioner’s asser-

tion of the privilege was neither contumacious nor con-

‘temptuous, but was in good faith and within his constitu-

tional rights (R. 54, 64). |

On July 9, 1959, respondent, the Inquiry’s attorney, peti- .

tioned the Appellate Division to discipline petitioner solely

for his refusal to waive his privilege against self- incrimi-

~ nation by testifying (R. 5-16). No charges were made on

the basis of the allegedly adverse evidence which respon-

dent claimed to possess. If such charges had been made,

New York would have required the observance of all of the

procedural safeguards _ encompassed by due process, viz,

adequate notice of thie. specific charges, confrontation

and adequate opportunity for cross examination of the |

theretofore unidentified informants, opportunity to -offer

evidence in explanation, rebuttal or mitigation, and, finally,

respondent would have had to sustain the burden. of prov-

ing the charges. A

In his brief before the Appellate Division, respondent

indicated that if was cheaper and quicker fo proceed as

* In the course of the Inquiry, petitioner for the same reason re-

fused to produce certain records demanded by 2 subpoena duces

tecum. The issues raised by this’ refusal ha. been treated

throughout these proceedings as identical to those raised by the

refusal to testify.

—

Renee Me wee +

he did than’ to incur the “expenditure of time, energy and |

money’’ (Respondent’s Brief before the Appellate Divi-_

sion, p. 20) that would be necessary to make a ease of pro-

fessional misconduct against petitioner. No hearing was

“held on the charges .of professional misconduct intimated

by respondent, and not a scintilla of evidence was intro-

duced to reflect adversely | on petitioner’s unblemished

carcer at the bar for over thirty-seven years. His distin-

guished record as a member of the New York State Assem-

bly (1928-1934), his endorsement for the post of Justice of

the Domestic Relations Court in New-York by the Asso¢i-

ation of the Bar of the City of New York, the New York

County Lawyers Association and the Brooklyn Bar Asso-

ciation and his .record of successful practice and good

standing at the bar continuously for almost four .decades,

stands here unassailed and unassailable.” Thé sole issue

hefore the Appellate Division was whether the uncon-

tested fact that petitioner had ‘refused to waive his con-

slitutional privilege by testifying warranted disciplinary

action. |

Petitioner, on July 31,-1959, in his Answer to Respon-

dent’s Petition, explicitly asserted that disciplinary action

would violate his rights. under the due- process clause of

the Fourteenth Amendment to the eiactaial States Corsti-

tution (R. 61, 62 ).

The Appellate Division, Second Department, one -justice

dissenting, rejected petitioner’s. contention and held that’

his privilegéd refusal to answer in and of itself constituted

* Petitioner actually serv ed asa Justice of the Domestic Relations

Court for one month in January 1958 as a temporary replace-

ment during the ill health of one of the regular members of that

* Court.

6 °

professional misconduct warranting permanent disbar-

ment (R. 62-79). The order of disbarment was entered on

December 31, 1959 (R. 3, 4).

On April 1, 1960, the Court of Appeals, Judge Fuld dis- *

_. Senting, affirmed the disbarment order below (R. 81-95). ©

On April 21, 1960, the Court of Appeals amended its re-

mittitur to the Appellate Division; Second Department,

to state (R. 95-100) : as. a |

‘Upon the appeal herein there was presented and

necessarily passed upon questions under the Consti- -

tution of the United States, -yiz.: ‘The appellant as-

serted that his disbarment based solely upon his re-

liance in good faith on his constitutional privilege

against self-incrimination in a non-adversary pro-

ceeding without any substantive charges of miscon- oO

duct being made or proven against him at a full hear- 4

ing where the right of confrontation and cross- ~

examination of witnesses and full and ample defense

‘would be available was violative of due process of

lawtunder the Fourteenth Amendment, and that his

disbarment based on_his assertion in good faith: df

his constitutional privilege against self-incrimina-

tion which the Appellate Division held constituted a

refusal to cooperate with the Court and a breach of

the Canons of Ethics violated his guarantees of due

process of law under the Fourteenth Amendment.’

The Court of Appeals held that the rights of ‘appel-

lant under the Fourteenth Amendment had not been

violated.”’ | - “alee

: *

b a

. s

Summary of Argument

I. The right to practice law cannot be taken away arbi- -

trarily. F.g., Aonigsherq v. State Bar of California, 355

U. $. 252; Schware v. Bourd of Bar Examiners, 353 UL.

232. The State of New York has arbitrarily denivd peti-

tioner the right to practice law. It has disbarred him with-

out adducing a scintilla of evidence to inipeach his charae-

ter or fitness to practice law. °

The only conduct of petitioner claimed to warrant hi-

disbarment is las refusal in reliance on his privilege against

self-inerimination to answer questions put to-him by a judi-

cial: inquiry into solicitation and. related practices. It i-

obvious and indeed conceded that petitioner was within -his

constitutional rights in so refusing. 7 N. ¥. 2d 488, 495, 166

N. E. 2d 672, 675. See, e.g., Slochower v. Board of Higher

Education, 350 U.S. 551; Ullmann v. United States, 350

. U.S. 422, 426; Quinn v. United States, 349 U. S. 155, 161.

This is particularly_true when, as here, the privilege is

invoked in an inquisitorial proceeding, where the witness

is unable to summon his own witnesses Or cross-examine

‘those against him: and where he is evidently under con-

, sideration as-a potential defendant. In such cireumstances,

the logical tendency of the assertion of the privilege to

prove guilt is ‘tess than negligible’. Grunewald v. United

States, 353 U. S: 391, 424; Griswold, The Fifth Amend-

ment Today, pp. 21-22. Consequently, it would be arbitrary

and capricious and so a denial of due process to infer guilt

from petitioner’s assertion of his privilege in this case.

Respondent and the Courts below ayow that they are

making no direct inference from petitioner's assertion of

oN F

the privilege. They state that his refusal to testify, con-

sidered entirely separate and apart from the privilege,

damns him. But the very same context that makes an in-_

ference of professional unfitness from petitioner’s asser-

tion of his privilege irrational similarly impeaches any at-

tempt to infer unfitness from his refusal to testify. His

refusal, concededly privileged, was one that any prudent,

innocent man in good faith was fully justified in asserting

_ without incurring the professional death penalty or sub- .

jecting him to any disciplinary proceeding.

In Konigsberg v. State Bar of Califormia, supra, this

Court squarely held that California could not rationally

find Konigsberg lacking in good character merely because

‘he refused to ‘answer. certain questions put to him. The °

probative force of Konigsberg’s refusal was held to be so

outweighed by Konigsberg’s: showing of good character that

_it would be a denial of due process to find him lacking in

good character. So here New York could not rationally

find petitioner unfit. merely because he refused to answer

certain questions put to him. Petitioner, unlike Konigs-.

berg, was not obliged to establish his fitness. Under the

law of New York, respondent had the burden of proving

petitioner’s unfitness. Nevertheless, it is a matter of public

record that petitioner served with distinction in the. New

.York State Assembly for seven years, was recently en-

dorsed for a local judgeship by three Bar Associations and

- _ has never before, iri almost forty years at the Bar, had his

character questioned. It is plain, then, that here, even niore

ms) than in Konigsberg, the record cannot support an in-

ference of bad moral character or unfitness.

But respondent and the Courts below seem to ange

They suggest that petitioner’s character and fifness are

beside the point: whether he is fit or not, if he refuses to

. testify in an Mvestigation into attorney practices, he may

be disbarred. In other words, refusal to testify, however

worthy the refuser may be, ipso facto disqualifies him for

the practice of law. This view, too, is so arbitrary as to

constitute a denial of due process.

A State can decide that conduct. constitutes a per se dis-

qualification for the practicé of law only if there is .some

rational basis for so deciding. But once it is demonstrated

| athat the conduct in question will not support an inference

of unfitness to practice, it would seem to follow that there

is no rational basis for making it a per se disqualification.

Consequently, once it is decided, as it must be here, that

petitioner's refusal to testify in good faith and in reliance

on his privilege against self-incrimination cannot support

an inference of poor moral character or unfitness, it follows

that his refusal cannot be made a per se disqualification.

It need only be added that a bolding that-New York has |

acted arbitrarily in disbarring petitioner without evidence

‘of his unfitness to practice would do no noticeable harm to

any valid interest of the State, Petitioner's refusal to tes-

tify has not left the State impotent to obtain the informa-

tion it claims to want‘*from him. The Inquiry’s activities

haye been paralleded by a’ grand jury inyestigation into

solicitation, conspiracy to- solicit, and related misconduct

by ‘attorneys. This grand jury is empowered to grant im-

emunity sufficiently broad to. take the place of. the privilege

against self-incrimination. In Re Cioffi, 192 N.Y. S. 2nd

754'¢ oe Co. Ct.), affirmed App, Div. (2d Dept.),

N. Y¥.L. J., June 28, 1960, p..1, cols. 1-6, aff'd by Ct. of

Appeals, N.. Y. L. J., July 12, 1960, p. 6, col. 3. -Conse-

quently, the State need only summon petitioner before

this grand jury to learn from him all that it desires to know.

Nor has petitioner's refusal to testify left the State power- °

less to discipline him if, as it claims, it has information

of professional misconduct on his part.

I. The right to practice a profession may not be taken

away except by a proceeding that comports with all the

- essentials of procedural due process. E:g., Ex parte Robin- ;

* son, 19 Wall. 505, 512; Ex parte Garland; 4 Wall. 333, 378;

Goldsmith v. Board of Tax Appeals, 270 U. S. 117, 123. .The

essentials include a judicial type hearing at which the party

whose rights are being determined is fully apprised of the

charges ,against him and the evidence to support those ~

charges; is permitted to confront and cross-examine wit-

~ nesses; and is afforded an opportunity to offer évidence in

explanation, rebuttal or mitigation.

Instead of affording petitioner these shits with respect

to the information of professional misconduct respondent

claimed to have, respondent employed a procedural short-

_ eut that effectively deprived petitioner of all of these safe-

guards. Respondent interposed a preliminary inquiry,

threatened petitioner with undisclosed information from

unknown sources, and, wher’ petitioner naturally took ref-

‘ uge in his privilege against. self-incrimination, utilized that

s a basis for disbarment proceedings. The practical effect —

of this procedure, is to disbar petitioner for refusing to meet

an undiscloséd ease without the weapons of confrontation

and cross-¢xamination. See Sheiner v. Florida,82 So. 2d .

pr 661 (s. Ct. of Fla.). Petitioner’s natural caution in the ©

inv ocation of his basic constitutional rights is made to take

the place of an affirmative demonstration of professional

misconduct. This is a denial of due process. +

6 wesite treenen, ams. "SOA F

Ill. The right of a private citizen, including lawyers and

other licensees, to pursue his calling is afforded yreater

"protection by the due process clause than the right of ‘a

public employee to continue on the public payroll.- E.g., —

Ex parte Garland, 4 Wall. 333, 378; Parker v. Lester, 227

F. 2d 708, 717 (9th Cir.). Consequently, the instant case is

not controlled by this Court’s decisions in cases involving

public employees, viz; Lerner v. Casey, 357,U. S. 468; Beilan

v. Board of Education, 357 U. S. 399; and Wel and Globe

v. County of Los Angeles, - U.S. 1.

ARGUMENT >

; New York acted arbitrarily and denied due process

to petitioner when it disbarred him without any evi-

dence of misconduct, unfitness or bad character, but

solely because he refused admittedly ‘i in good faith, as

was his right, to answer questions before a ‘general

judicial inquiry, in reliance on his privilege ogainet

self-incrimination.

A. The right to guecties law cannot be

denied arbitrarily.

This Court has held many. times that.the ¢ right to prac-

tice law cannot be denied arbitrarily. Konigsberg v. State

Bar of California, supra; Schwaré y. Board of Examiners,

supra; Ex parte Robinson, supra; Ex parte Garland, supra. -

Mr. Justice Black, writing’ for the Court in Schware,

summed the matter up this way (353 U.S. at. 238-239) :

‘*A State cannot exclude a-person'from the prac-

tice of law or from any other occupation in a manner.

12. ae

or for reasons that contravene the Due ‘Process or

' Equal Protection Clause.of the Fourteenth. Arfend-

+ + ment. [citations omitted] A State can require “high.

standards of qualification, such as good moral char-

acter or proficiency in its law,. before it admits an

, applicant to the bar, but any qualification must have .

a rational connection with the applicanf*s fitness or

capacity to practice law.’? .

The State of New York has arbitrarily denied petitioner

the right to continue to practice law, his only means of

livelihood for ov er thirty seven years. It has disbarred him

«without adducing a scintilla of evidence to impeach his

character or compe! énce to practice law. |

Neither distortion nor legal semantics can " obseure: the °

inescapable fact that petitioner’s disbarment was based

exclusiv ely on his assertion of his constitutional right not

to be compelled to testify against himself—an assertion in-

disputably availed of in the utmost good faith, on the advice

of competent counsel and by an attorney whose long stand-

ing at the bar has been otherwise unimpeachable. If such

drastic consequences automatically follow the invocation of

the constitutional right under such circumstances, then that

constitutional right becomes nothing more than .a sirare and

a delusion. No argument, no matter how often repeated, nor

by what sources, can logically refute the contention that

disbarment in such a situation is arbitrary a ee any

_ doubt w hatev er. ¢ “

13 2 °®

B. Assertion of the privilege against self-incrimination in

good faith in any case will not support any inference _

of any lack of good moral character or of any miscon-

duct or unfitness whatever.

The only conduct of. petitioner that can possibly be

claimed to warrant his disbarment is his refusal to answer

questions put ‘to him by the Inquiry in reliance ‘in good

faith and on the advice of counsel, on his privilege’against

self-incrimination. Can any moral deficiency be inferred

from that conduct? This Court has stated again and again

that an assertion of the privilege against self-incrimination

cannot support an implication of guilt. Mr. Justice Harlan,

writing for the Court in Grunewald v. United States, supra,

provided a compendium of some of the recent authorities

(353 U. S. at 421):

“We need not tarry long to reiterate our view

that, as the two courts below held, no implication of

guilt can be drawn from Halperin’s invocation of his

’ Fifth Amendment privilege before the grand jury.

Recent re-examination of the history and meaning

of the Fifth Amendment has emphasized anew that

one of the basic functions of the privilege is to pro-

' tect innocent men, Griswold, the Fifth Amendment

Today, 9-30, 53-82. ‘Too many, even those who

should be ‘better advised, view this privilege as a

shelter for wrongdoers. They too readily assuine

that those who invoke it are either guilty of crime

° or commit perjury in claiming the privilege.’ Ull-

mann v. United States, 350 U. S, 422, 426. See also

Slochower‘v. Board of Higher Education, 350 U. S.

551, when, at the same Term, this Court said at pp.

557-558: ‘The privilege serves to protect the inno-

cent who otherwise might be ensnared by ambiguous

circumstances.’ ’’

’

Any experienced advocate, and certainly the members of

- this Court, would not fail to appreciate the possibility of

such an ensnarement of a reputable attorney in the cir- ~*~"

cumstances , disclosed by this record. See, e.g, Quinn v.

United States, supra; In Re: The Integration Rule of The

F lorida Bar, 103 So. 2d 873 (S, Ct. of Fla.); Telford Tay-

_ lor, Grand Inqu®8ts (1955), p. 197., - é

The basic function of the privilege: ‘‘to protect innocent

men’’ seems particularly applicable in the context of the in-

stant case. Petitioner did not assert his privilege in a pro-.

ceeding avowedly brought against him, with advance notice

of the, charges, an opportunity to cross-examine adverse

Witnesses, and all the o#ér procedural safeguards afforded

by due procegs.. Ow the contrary, the subpoena served upon

_ him by the Inquiry did not put him on notice that he would

be czlled upon to defend himself against charges of pro- .

fessional misconduct. When petitioner appeased, he was

explicitly assured that he had not been summoned in the

role of a prospective defendant. The line of questioning, aa

however, to which petitioner was subjected belied “this dis-

claimer and. petitioner-was belatedly informed by the In-

quiry’s attorney that.the Inquiry had information indicat-

ing misconduct on his part. Petitioner wa thus confront

with unspecified charges of professional misconduct with

no-opportunity to defend himself in. accordance with Ameri-

can concepts of justice. In this context petitioner’ s able »

and experienced attorney wisely advised him,{o invoke his

constitutional privilege -and refuse to answer, and _ peti-

; tioner followed bjs advice.

The situation is emphasized by comparison with ‘the

Grunewald case where this Court concluded that the weight

to be given Halperin’s assertion of his privilege against

self-incrimination ‘‘was less than neghgible’’ (353 E. S. at

424). The Court was led to this conclusion by circum-

" — stances quite like those present here: Halperin Was a com-

pelled witness before the grand jury, unable to summon his

own witnesses: or cross-examine those against him; he’ was

not represented by counsel in the grand jury room;* ‘‘and

most important, .. . when Halperin was questioned be-:

fore the grand jury, he was quite evideytly already consid-

ered a potential defendant’’ (Id. at 423). And so this

Court decided that (Ibid.) :

- “Tt was. thus quite consistent with innocence for

him to refuse to provide evidence which: eould be

" usedy the Government in building its incriminating

; chain. For many innogent men who know that they

are about to be indicted will refuse to help create

a case against thems¢lves under circumstancés where’

lack of counsel's assistance’ and lack of opportunity

for cross-examination will prevent them from bring-

ing out the exculpatory circumstances in the context

of which superficially incriminating acts occurred.’’.

Dean Griswold, too, spotlights-the fallacy of inferring

misconduct from the assertion .of the privilege before an

inquiry like the one conducted below. Thus in The Fifth .

Amendment Today (1955), he states (at pp. 21-22):

‘‘Ordinarily when the privilege of the Fifth

Amendment is exercised, it is in a criminal trial.

There a specific charge has been made, and the

. - prosecution: has by : evidence established a prima

facie case of gfilt of the particular crime charged in

the complaint or indictment. Under such cireum-

* Petitioner’s counsel was permitted to accompany him, but, of '

course, he had little chance to be useful, since he had no op-

‘ portunity to question anyone, not even the petitioner,

stances there is much more than the mere claim of.

the privilege on which {@ rest an inference of guilt.

‘In investigations, however, there ar no °care-

fully formulated charges. Evidence to support such

charges has not been introduced and made known

s to the witness before he is called upon to answer: He

has nio opportunity for cross-examination of other

witnesses, and often little or no opportunity to make

explanations which might. have a material bearing

on the whole situation. In the setting of an inves-

tigation; therefore, the basis for the inferenee from

a claim of privilege against self-incrimination. is .

much less than it is when the privilege is exercised

in an woe cerminal trial.’’

Cc. Petitioner’s. a of the privilege, under the cir-

, cumstances of this case, will not support any inference

of any lack of good moral character or of any miscon-

duct or unfitness,

Respondent contended and the Courts below held that

it is not petitioner's reliance on his privilege that disquali:

fies him, but his refusal to testify, irrespective of the rea-.

son. In other words, the Courts below held that however.

worthy to practice petitioner may be, the sole fact that he

refused to testify before the Inquiry proved him to he un-

worthy. That conclusion is wholly arbitrary, as Schware

and Konigsberg. demonstrate.

_ In Schware, this Court unanimously held that the New

Mexico Supreme Court had denied Schware due process

of law by unreasonably finding that he had failed to show -

good moral character. It was this Court’s *iew that in the

light - Schware’s ‘*forceful showing of good moral char

acter’? (353 U.S. at 246), the New Mexico Court, could not

rationally infer bad character from Schware's earlier his-

tory of arrests, use of aliases and seven years in the Com- —

munist Party; that the New Mexico Court had erred by

unduly emphasizing these events to the neglect of the real

question before it—was Schware of good moral character?

And that the record in Schware permitted only.one answer

to that’ question. . . ¢

~ Similarly, in Konigsbe rq, this C ourt held that the Cali-

fornia authorities could not, in the light of the evidefice of

Konigsberg’s good character, infer poor moral character

or doubtful loyalty from Kovigsberg’s refusal td answer

certain questions about his political associations and be-

lief 8.

The New York Court has amet ertently failed to heed the

lesson of Schware and Konigsherg. Ut has given dispropor-’

tionate weight to petitioner's refusal to testify dnd has ig- |

nored his otherwise unchallenged good character and fit-

nes to practice. Standing out in bold relief K the fact that

petitioner, unlike Schware and Konigsherg, did) not have

the burden of producing evidence on the issue of his charac-

ter and. fitness. See, e.g. Matter of Fisch, 231 App. Div.

192; 246 N. Y..S. 760 (1st De ‘pt. ); Matter of Cook, 242 —

Div. 224, 273 N. Y. S. 13 (1st Dept. ); Matter of Farrell, 2

App. Div. 678, 262, N. Y. S. 766 (1st Dept.).*

* These authorities woukl seem to make it unnecessary for this

Court to decide here whether due process requires the State to

. carry the burden of proof in a proceeding to disbar.. However,

if the Court shoud deem the question material, its decisions on

related questions indicate that the State would’ be denying due

process if it imposed upon an attorney the burden of proving. |

that he had ‘hot engaged in_ misconduct sufficiently serious to”

warrant his disbarment. See, €.g. Speiser v, Randall, 357 U. S.

513: Jot y. United States, 319 L. Ss. 463.

Petitioner is not an“applicant for admission to the Bar.

Unlike an applicant, he has already persuaded the appro-

. priate authorities of his competence and character ; and, if

he is in fact unfit, surely respondent should have. been able

to find sonie evidence of that unfitness somewhere in peti-

tioner’s thirty-seven years at the Bar. Not only has re-

spondent failed.to come forward with such evidence, but it

is a matter of public record that petitioner served with

distinction in ‘the New York State’ Assembly for seven

~ years, that just three years ago he was endorsed for the

‘post of Justice of the Domestic Relations Court in New

York by three outstanding New York City Bar Associa-

tions, and that his character has. never before been ques-

tioned. : - oe g |

The coptiusion of the Court of Appeals for the District

of Columbia Circuit in In Re Carter, 177 F. 2d 75, 78, cert.

denied, 338 U, S..900, seems apts.

“An applicant for admission to the bar meat satis- -

fy the authorities as to his moral character, and cus-

tom has established confidential inquiry as an ele-

ment-of that procedure. But when he has been ad-

mitted, his removal from practice is a disbarment,

about which elaborate procedural- requirements are

thrown. Such remoyal after admission is not a mere-

denial of an application for admission. The same_is-

true in respect of licenses to do business in many

forms. Prior to grant, many processes are available

for inquiry: and information. But once granted, the

license becomes a right, and due process of law must

be followed to achieve deprivation. ”’

Petitioner’s refusal t6 testify, considered without refer-

ence to ahy claim of privilege, does not even tend to impugn

his character and fitness. It is conceded that his refusal .

was not contemptuous or contumacious. Given the inquisi-

torial nature of the proceedings and respondent's threats,

“ both implied and expressed, petitioner was ‘‘quite evident-

ly already considered a potential defendant’’ to use again

the language of the Grunewald case (supra); his refusal

was no more than a simple act of self-protection, and a.con-

cededly privileged ne at that.°

5° The reductio ad absurdunr ‘that Mr. Stanley Ar Weigel

suggests in-his. The Fifth Amendment and. the Lawyer’s-

Responsibility, i is strikingly apposite, 34 Neb. L. Rev. 586,

589 (1955):

J . ; ; : 7 ;

‘*The lawyer-before ns is a member of the’ es in |

good standing. He has-been so for many years. His

professional activity has been without blemish. His

a reputable lawyer and a good citizen.

‘‘Nothing intervening, he now exercises a -right

- guaranteed him by the Constitution of the United

_ States (which he has sworn to uphold).

‘‘Presto! This self-same man has now. forfeited

his right to practice his profession, losing all stand-

ing as a lawyer. His innocence is now questionable.

His good citizenship is now suspect..”’

, Finally, could there be any remaining doubt that peti-

tioner’s refusal to testify casts no adverse péflection on his

character or fitness, it should be noted that petitioner was

_ advised by counsel and believed that since he had a right to

' refuse to testify in reliance, on his privilege against self-

2 -* See, 7 N. y. 2d 488, 495, 166 N. E. 2d 672, at 675, where the

Court below, concedes petitioner's right to invoke the privilege.

‘e

citizenship has been flawless. ‘He is an innocent man, ;

incrimination, he could not possibly be breaching any duty

‘. by so doing. Indeed, petitioner was abundantly. warranted

in believing that the highest Court in his State had repeat-

: edly held that an attorney does no wrong by refusing to

testify in reliance on his privilege against-self-incrimina-~—___-

tion. See the Court’s opinion below (7 N. Y. 2d at 494, 166°

N. E. 2d at 675). Matter of Grae, 282 N. Y. 428, 26 N.'E. 2d

963; Matter of Ellis, 282 N. Y. 435; 26 N. E. 2d 967; and

see also, Matter of Kaffenburgh, 188 N. Y. 49, 80 N. E. 570;

Matter of Solovei, 276 N. Y. 647, 12 N. EF, 2d 802, aff’g with-

out opinion 250 App. Div. 117, 293 N. Y.S. 640 (2nd Dept. ).

Petitioner’s view of the New: York authorities is shared

and approved by the highest Courts of Florida and Illinois,

by eminent scholars, and indeed, it would appear, by this

Court. See Konigsberg v. State Bar of California, 353 U.S.

252, 270 and note 31; Sheiner v. Florida, 82 So. 2d 657, 661-

662; In re Holland, 377 Ill. 346, 36 N. E. 2d 543,547; Wal-

ter Gellhorn, Individual Freedom and Governmental *Re-

straints (1957), p. 139; Telford Taylor, Grand Inquest

(1955), p. 211; and see Judge Fuld’s dissenting opinion

below. Even the New York Court of Appeals recognized

-that.there seemed to be but a slight difference between its

holdings in the prior cases and the present case, for in ‘its

. Opinion below it said this of its earlier decisions (7 N: Y.

2d at 497, 166 N. E. 2d at 677) :

‘‘The holding in each case was that a lawyer like

every other citizen is constitutionally privileged not

to answer damaying questions. The -lifference be-

-tween those cases and the present one may seem

slight but it is enough to permit a fresh examination

(or re-examination) of the question now directly

presented.’’

On the record in this case, Mr. Justice Frankfurter’s con-

- . elusion in his concurring opinion in Schiware seems appli-

- \eable. He said (393 U. S. at 251):

‘‘To hold,‘as the court did, that Communist affilja-

‘ tion for six to seven years up to 1940, fifteen years

prior to the court’s assessment of it, in and of itself

_ made the petitioner ‘a person of questionable charac-

ter’ is so dogmatic an inference as to be wholly un-

warranted.’’ - °

So it is here: to hold that petitioner’s reliance on his privi-

lege against self-incrimination in and of itself impeached

- his.moral character and proved him unfit to practice law

‘¢ ‘18, so dogmatic an inference as to be wholly unwarranted’’. —

* D. No State can oe es make a refusal to testify

a per se disqualification to practice law.

as 7 Konigsberg v. State Bar of California, 52 Cal. 2d 769,

» B44 P. 2d 777 (1959),.in which case this Court very recently.

granted certiorari, 362 U. S. 910, the Supreme Court of

California had held that even though Konigsberg’s moral

character could not be questioned on the record presented,

his refusal to testify ipso facto disqualified him from ad-

mission to the Bar. Respondent presumably will adopt

that view and maintain that petitioner’s refusal to testify,

ipso facto, regardless of all else, disqualifies him from ‘con-

tinuing to practice his lifelong profession.

This view has been held by this court in its opinion in-the

first Konigsberg case, 353 U. S. 252, to be so arbitrary

as to constitute a denial of due process when applied to

_ applicants for admission to the Bar. Undbestionably is it’

#0 when applied to one who has already been admitted.

Once it is demonstrated that the conduct in question will

not support an inference of unfitness to practice, it would

seem to follow tHat there is no rational basis for a State

making it a per se disqualification. Consider, for example,

this Court’s decision that Schware’s prior arrests, use of

aliases and membership in the Communist Party could not .

support an inference of the lack of the requisite good char-

acter. Similarly, once it is decided, as it must be here, that

petitioner’s refusal to testify in reliance on his privilége

against self-incrimination cannot support an inference of .

lack of. good character or of unfitness, it follows that there

is no rational basis for making it a per se disqualification.

The arbitrariness of a rule that would make a refusal to

testify before an inquiry into attorney practices an ipso.

facty disqualification tu practice law becomes still more

apparent if one considers some other situations to which

‘such a rule would presumably apply. Suppose, for example, ~

that the Inquiry summoned before it an attorney who was

counsel to several of the lawyers being investigated by the

Inguiry. If this attorney were asked to reveal all that his

clients had told him and he refused; reminding the Inquiry

of his*duty to preserve the confidences of his clients, the

__ theory advanced by respondent and the Courts below would

seem to require his disbarment. Or suppose that an Arkan-

sas Court were to undertake an inquiry into champerty and

maintenante, with particular reference to whether the

N.A.A.C.P. was guilty of those offenses, and an attorney -

were asked to provide the names‘af many of the Associa-

tion’s members so that they might be summoned as wit-

nesses. If he refused, the theory advanced by respondent

and the Courts below would seem to require his disbarment.

And yet Bates v. City of Little Rock, 361 U. S. 516, $0 S. Ct.

23 -

412, almost certainly requires the conclusion that disbar-

ment under those Gircumstances Would be’a denial of due.

process. To cite just one-more example, suppose that a

Federal Court were investigating professional misconduct

by several. individual attorneys on the staff of the ‘Justice

/’ Department and a United States attorney were subpoenaed

to produce certain relevant Department papers in his cus-

tody. This Cdurt has held that he may refuse to comply

with that. subpoena if a Department regulation se requires. _

United States ex rel. Touhy v. Ragan, 340 U. S. 462. And

. yet the theory adv anced by respondent and pe Courts be-

low would seem to require his disbdafment.

In these hypothetical situations, and they could be ex-

tended indefinitely, the recalcitrant attorney seems to have

failed in what the Court below has called the duty to ‘‘be

candid and frank with the court at all times (Canon 22)”’.

(7 N. Y. 2d at 496, 166 N. E. 2d at 676.) In none of them, ©

it is submitted, could disbarment withstand an attack on

due process grounds. :And the reason is simple: the context

. of each refusal must be examined, and when it is examined,

it appears that none of the refusals reflects adversely on *

the refuser’ s fitness to practice law. And so it is with the

context in which. petitioner refused to testify.

Surely, if an attorney’s refusal to testify cannot sub-

ject him to disciplinary action when he bases that’ refusal

_ on the statutory attorney-clitnt privilege or-on Justice De-

partment regulations, the valid assertion of a constitutional

privilege as a basis for refusal cannot produce a different

result. To-hold otherwise could only mean that the privilege

ageinst self-incrimination has in fact become the adn.ission

of guilt that the uninformed take it to be. But this’ Court,

time and time again, has vigorously opposed that coneep-

tion of the privilege. Mr. Justice Frankfurter stated in

Ullmann v. United States, that the priv ilege saa et self-

incrimination (350 U. S. at 426-427) :.

‘*. . -. registers an important advance in the de-

’ velopmeut of our liberty—‘one of the great land-

marks in man’s struggle to: make himself civilized.’

[Griswold, The Fifth Amendment Today-{1935), p

‘7] Time has not ‘shown that protection from the.

evils-against which this safeguard was directed is

needless or unwarranted. ’ This constitutional pro-

tection must not be-interpreted in a hostile or nig-

gardly spirit.. Too many, even those who should be.

better advised, view this privilege as a shelter for

wrongdoers. They too readily assume that those who

invoke it are either guilty of crime or commit per-

jury in claiming the privilege. Such a view does

scant honor to the patriots who sponsored the Bills

of Rights as a condition to acceptance of the Consti-

tution by the ratifying States... .”’

‘See similar statements in, e.g:, Slochower v. Board of

'- Education, 350-U. S.. at 557; Grunewald v. United States,

353 U. S. at 421; Quinn v. United States, 349 U. S. at 161.

Relying in part on these authorities, the Supreme Court

of Florida recently rejected efforts to amend the rules

dealing wita the practice of law in Florida to permit dis-

barment for invoking the privilege against self-incrimina-

tion. It held that since the innocent may \irivoke this privi-

lege, ‘‘its exercise may not be ‘considered a breach of duty

to the court’’. In Re: The Integration Rule of Florida

Bar, 103 S. 2d at 875. . f

It need only beaded that a holding that New Vesk has

acted arbitrarily in disbarring petitioner without evidence

of his unfitness to practice would do no noticeable harm to

. —_

ee ag

en: : 25

any valid interest of the State. Petitioner’s refusal to tes-

tify has not left the State impotent to obtain the inforfa-

tion it claims to want from him. (The phrase ‘‘claims to

-want”’ is used advisedly, for respondent has implied that

he already has this information from other sources.) The

Inquiry’s activities have been paralleled by a grand jury

investigation into solicitation, conspiracy to solicit, and

related misconduct by attorneys. The New York Courts

have recently held that this same grand juryeis empowered

to grant immunity sufficiently broad to take the place of a

witness’ privilege agairst.self-incrimination. In re Cioffi,

. supra. Consequently, the State. need only summon peti-

tioner before this grand jury to learn from him all that it

desires to know.

Nor has petitioner’s refusal to testify left the State

powerless to discipline him if, as it claims, it has informa-

tion of professional misconduct on his part.

Judge Fuld highlighted these-points well in his dissent

below, and they are incontrovertible. He said

“it is hardly necessary to say that a scrupulous

regard for the constitutional limitation will not leave |

the disciplinary authority. powerless or.a guilty at-

‘torney immune. If, as’ counsel for the judicial in-

quiry stated toward the conclusion of the investiga-

tion, there was information indiéating the appel-

lant’s ‘participation in professional misconduct,’ his

nie unwillingness to furnish information might have

justified institution of a disciplinary proceeding

founded on such information. And, if such proceed-

ing were to be brought and the appellant were to

stand mute therein, he would have. to bear all of the

legitimate inferences stemming from the damaging °

/ evidence adduced against him. It is also relevant

that, where immunity is conferred—by overriding

the claim of privilege and compelling the witness to

’ answer the questions—and the testimony shows that

he ig.not fit to continue as a lawyer, he may then be

_ di sbarred or otherwi ise disciplined. (See Matter of

Rouss, 221 N. Y. 81, 86 et seq., supra.)’’

‘ey, ee Il.

By summoning petitioner to a preliminary inquiry,

threatening him with undisclosed information of pro-

fessional misconduct and when he refused to testify

in reliance on his privilege against self-incrimination,

disbarring him solely for that refusal instéad of af-

fording him a full hearing based on the claimed ad-

_ verse information, the State denied petitioner due

= process of law. |

_ It has long been established that the right to practice a

- profession or to pursue a particular line of private employ-

ment is entitled to constitutional protection and may not be-

taken away except by a proceeding that comports with all

the essentials of procedural due process. E.g., Ex parte

Robinson, 19 Wall. 505, 512; Ex parte Garland, 4 Wall. 333,; .

378; Goldsmith v. Board of Tax Appeals, 270 U. S. 117, 123;

Sheinér v. Florida, 82 So..2d 657, 661 (S. Ct..Fla.) ; In Re:

Burke, 351 P. 2d 169, 172 (S. Ct. of Ariz.) ; Parker v. Les-

ter, 227 F. 2d 708, 717. (9th Cir); Matter of Los Angeles

County Pioneer Society, 217 F. 2d 190 (9th Cir.); In Re:

¢ Carter, 177. F. 2d 75, 78 (D. C. Cir.) cert. denied 338 U. S.

900; In Re; Carter, 192 F. 2d 15, 17 (D. ©. Cir.) cert. denied

342 U. S. 862; Laughlin v. Wheat, 95 F. 2d 101 (D. C. Cir.);

United States v. Hicks, 37 F. 2d 289 (9th Cir.) ; ef..Konigs-

or.

berg v. State Bar of California, supra; Schware v. Board

of Bar. Examiners, supra.

In Ex parte Robinson, Magy, this Court Nasa (19 Wall.

at 512): ;

‘Parties are admitted to the profession only upon

satisfactory evidence that they possess fair: private

character and sufficient legal learning to conduct

“f causes in ‘court for. suitors. The order of admission

: the judgment of the court that they possess the

uisite qualifications both in character and learn-

- ing. They become by such admission officers of the

court, and, as said in Ex parte Garland, ‘they; hold

their office during ‘good behavior, and can only be

. deprived of it for misconduct aseertained and de-

‘- . elared by the judgment of the court after opportu-

nity to be heard has been afforded.’ Before judg- *

ment disbarring a lawyer is rendered he should have —

notice of the grounds of complaint against him and

. ample opportunity of explanation and. defence. This

is a rulerof natural] justice, and should be, equally

followed when proceedings are taken to deprive him

~ of his right to practice his profession, as when they

~ até takeh to reach his real or personal property .

The principle that there must be citation before

hearing, and hearing ‘or opportunity to be heard be-

fore judgment, is essential to the security of all

private rights. Without its observance no one would

be safe from oppression wherever power may be

lodged.”?

‘ More sil in Goldsmith v. Board of Tax Appeals, —

' supra, this Court similarly stated (270 U.S. at 123);

“The rules adopted by the Board provide that .

‘the Board may in its discretion deny admission,,

. suspend or disbar any person.’ But this must be

‘

construed to mean the exercise of a discretion to be

- exercised after fair investigation, with such a notice,

hearing and opportunity to answer. for the appli-

“i cant as would constitute due process.’’

The foregoing cases make it clear that the mandate of

due process requires a judicial type Learing ‘at which the .

party whose rights are being determined is fully: apprised

of the charges against him and the evidence to support

those charges; is permitted to confront and Cross- examine

witnesses ; and is afforded an opportunity to offer evidence

in explanation, rebuttal or mitigation. Consequently; if,

in ‘the absence of the judicial inquiry, respondent had

sought to have petitioner disbarred, the respondent would

have been obliged to make specific charges of professional

misconduct, to present evidence in support of those charges,

to permit petitioner to cross-examine witnesses and pre-

sent evidence of his own, and, finally, .respondent would

have had to sustain the burden of proving the charges.*

Instead. respondent empleyed a procedural short-cut

- that effectively deprived” petitioner of: all of. these safe-

guards. “Re ‘sponderit interposed a preliminary inquiry that

was plginty intended to present, petitioner with a Hobson's

choice. Without providing -petitioner with any specific

: charges, indeed without warning him at_.all that he would-be

balled upon to defend himself and after informing. peti-

* Presumably this much will be conceded by respondent, for the

New York authorities accord with the cited decisions from other

Courts in securing the rights listed to an attorney in a disbar-

ment ee N. Y. Judiciary Law, Sec. 90(6) ; Matter of

Eldridge, 82 161, 166-167 ; Matter of Kaufmann, 245 N.Y.

423, 157 2" EF. 730, 734; Matter of Joseph, 125 App. Div. 544,

109 N. Y. S. 1018 (1st Dept.) ; Matter of Lynch, a Div

477,238 N. Y. S. 482 (Ist Dept. ); Matter of Fisch, OT Are

Div. 192, 2446 NI Y.S S. 760 (1st Dept.).

“ ?

tjoner that he had not been summoned in the role of a

prospective defendant, respondent proceeded to question

“petitioner in d way that clearly belied this disclaimer. All

- too late, respondent went so far as to inform petitioner that

the Inquiry had information indicating professional mis-

conduct on his part. No such ‘information was presented

and petitioner was left in the dark as to the source of the

information> its nature, arid whether any steps had been

taken to test its credibility. Petitioner was thus given the |

option of meeting an undisclosed case against him or of

- following the dictates of prudence and asserting his privi-

lege ‘against self-incrimination, When hé naturally fol-

lowed the advice of his attorney to take the latter course,

respondent and the lower courts seized upon this as a sub-

stitute for an affirmative demonstration that petitioner had

been guilty of professional misconduct and instituted dis-

barment proceedings.

It is submitted that this proceeding constitutes dn at- .

tempt to subvert and destroy petitioner’s constitutional

_right to an adversary-type hearing and is a clear denial of

_due .process\of. law in contravention of the Fourteenth

Amendment to the-Constitution of the United States. To be

sure, petitioner gould have had a hearing here, but, because

of re ent’s tactics, it would have been a worthless one.

It would have dealt’ solely with the uncontested question of

whether petitione fused to testify i in reliance on his privi-

lege against’ self-inerimination. It would not have begun

with manele. 3 of the specific charges of misconduct al-

luded to by respondent at the Judicial Inquiry. it would not

have continued with the presentation of evidence to support

those charges. It would not have given petitioner the op-

portunity to rebut those charges with all the weapong, that

procedural due process affords.

_ The practical effect of the procedure ‘followed was tq

disbar petitioner on the basis of undisclosed information

provided by unseen informers, a procedure’ most recently

held a denial of due process in /n Re: Burke,.351 P. 2nd 169

(S. Ct. of Ariz.).~In Sheiner vy. Florida, supra, the Supreme “5

Court of Florida recognized that there is no difference be-

tween the procedure. employed below and condemnation ;

without trial. . Reversing-a_judgment of disbarment based

solely upon an attqrney’ s refusal to answer questions on

the ground that the/answers might tend to incriminate him,

the Court said (82 So. 2d at 661): - — B.

. ;

® ‘‘The last cited case [Matter of Murchison, 349

‘UG. §$. 133] and the Peters Case [Peters v. Hobby, 349

U. S. 331] are pertinent here for the emphasis they

place on confrontation, cross-examination and fair

trial as ingredients of due process.: Confrontation

- and cross-examination under oath are essential to due

process because it is the means recognized by which

we test the probity of. the evidence and eliminate

that which is trumped up or of doubtful veracity..

The ‘faceless informer’ theory. of proof should

never be substituted for confrontation and cross-ex-

amination in a trial where the end result is to deprive

the accused of one of his most precious assets—the

privilege to practice law.”’

Mr. Justice Kleinfeld stated in his dissenting ‘opinion be-

low 9 A. D. 2d at 449, 195 N. Y. S.-2d at 1004:

‘If the respondent i is guilty of any violation of the

’ duct of attorneys, and this is proved in an adversary

pub ya protedding, against him after he has had the right to

bah confront his aecusers, cross-examine witnesses on .

| his own behalf, and the benefit of all the other safe- .

guards of due process, then he may be A as

“Sl:

eee court deems proper. Absent such proceeding, the

respondent has been denied his rights under the Con-

stitutions of this State and of the United States.’’

If the judgment below is permitted to stand, it will‘Serve

as a model for those who would evade constitutional safe-.

guards which this Court has been at great pains to preserve.

The new procedure will be simple: summon the person

whose license to practice law is sought to be revoked; make

vague threats abqut possessing adverse information so that

the target will be moved to assert his privilege against self-

, eat then revoke the license because the licensee

has failed to cooperate with the investigation. In this way

the inconvenience @f presenting a case against the intended

victim can safely be avoided. That this is not an overdrawn

picture of what occurred below is best indicated by respon-

dent’s statement in his brief (p. 20) before the Appellate

Division that it was cheaper and ‘quicker to proceed in this

‘manner than to incur the ‘‘expenditure of time, energy and

money’’ that would: be necessary to make a case of profes-

It should not be assumed that only attorneys are vulner-

able to the kind of constitutional av oidance attempted by

respondent. Hosts of Americans, like attorneys, need li-

‘venses from the State in order to earn their livings. These

people too, are entitled to procedural due process before

the State may deprive them of their livelihoods. E.g.,

Parker v. Lester, 227 F. 2d 708 (9th Cir.) (merchant séa-

-man); In Re: Carter, 177 F. 2d 75 (D. C.-Cir.) cert. denied

338 U. S. 900 (bail bondsman); Hecht v. Monaghan, 307

N. Y. 461, 121 N. E. 2d 421 (taxi driver); Alpert v. Board

of Governors of City Hospital, 286 App. Div. 542, 145

32 |

N.°Y. S. 2d 534 (4th De pt.)e (physician) ; Miami v. South

Miami Coach Lines, Ine., 59 So. 2d 52 (S. Ct. of- Fla.) (bus

line); Parker.v. Board of Barber Eraminers, 84 So. 2d 80

(La. Ct. App.) (barber college). °

If the decision below is upheld, there wads seem to be

nothing to prevent the States from making all ‘licensees

second-class citizens whose cardinal right to earn a liveli-

hood can be terminated in accordance with procedures that

evade due process requirements, The number of people

that would be included in that category is enormous. Some

-cidea of the potential-impact of the principle confended for

by respondent can be gathered from Professor Gellhorn’s

summary of the vast range of governmental licensing activ-

ity in his Jndividual.reedom and Gov ernmental Restrainis

at p. 106:

‘By 1952 ‘more ‘than 80 separate occupations, ex-

elusive of ‘owner-businesses’ like: restaurants and

taxicab companies, had been licensed by state law;

and in addition to the state laws there are municipal

ordinances in abundance, not to mention the federal

statutes that require the licensing of such diverse

occupations as radio operators and stockyard com-

mission agents. As long ago as 1938 a single state,

North Carolina, had extended its laws to 60 occupa-

- tions. One may not be surprised to learn that phar-

macists, accountants, and dentists have been reached

by sjate laws, as have sanitarians and psychologists,

°. assayers and architects, veterinarians and likhrarians.

But with what joy of discovery does one learn about

the licensing of threshing machine operators and

dealers .in scrap tobacco? What of egg graders and

guide-dog trainers, pest controllers atid yacht sales-

_ Men, tree surgeons and well diggers, tile layers and

potato grow ers? And what of the pypertrichologists

who are. licensed in Connecticut, where they remove

excessive and unsightly hairs~ith the solemnity

appropriate to their high-sounding title?’’ .

- It would be highly ironical if the first group of licensees

to be deprived of procedural. due process were the lawyers.

Not only are they the sworn defenders of due process, but

they are the group society most needs protected from arbi-

_ trary reprisals. History is replete with the names of irftre- .

pid attorneys who have championed causes which at the time

were unpopular in order to perpetuate the cause of free-

dom and democracy. As this Court stated in Konigsberg

v. State Bar of California, 353 U.S. at p. 273:

. A bar composed of lawyers of good char-

acter is a worthy objective but it is unnecessary to

sacrifice vital freedoms in order to obtain that goal.

: It is also important both to society and the bar itself

'« that lawyers are unintimidated—f o think, speak

and act as members of an Independent Bar.”’ .

And we do not hesitate to add, free to exercise their con-

stitutional rights. Nor does an attorney make enemies only.

by taking an unpopular political position. As the New York

Court of Appeals observed in Matter of Eldridge, 82 N. Y.

161, 166-167, 37 Am. Rep. 558: "

‘**His professional life is full of adversaries. <Al-

_ ways in front of him there is an antagonist, some-

. times angry and occasionally bitter and venomous.

His duties are delicate and responsible, and easily

subject to misconstruction. ar

It is a delusion to think that the public welfare is ad-

vanced by the sacrifice of an attorney’s basic liberties. The

exigencies of the moment cannot justify resort to. pro-

: > ‘

| |

‘ 34 et :

cedures which are foreign to our Anglo-American tradi-

tions of fair play or which deny basic constitutional rights. —

As Mr. Justice Cardozo (then Chief Judge-of the Court of

Appeals_of New York) said in Matter of Doyle. 257 N. Y.

244, 268, 177 N. E. 489, 498:

‘*Historic liberties and privileges are not to bend

from day to day ‘because of some accident of imme-

diate overwhelming interest which appeals to the

- feelings and distorts the judgment.’ (Holmes, J. in

Northern Securities Co. v: United euch 193 U.S.

197, faace ” .

7 Hil.

The questions presented have not been resolved by

this Court’s decisions in cases involving public em-

ployees, as the right of a private citizen to pursue his

calling must be afforded greater protection than the

right of a public employee to continue on the public

payroll, if the due process clause is not to be judicially

exterminated. — -

The Court below relied in part upon this Court’ s deci-

‘sions in Lerner v. Casey, 357 U.S. 468; Beilan v. Board of

‘ Education, 357 U. S. 399; and Nelson and Globe v. County

of Los Angeles, 362 U. S. 1, decided February 29, 1960.. The

import of these cases, all decided by a sharply divided

Court, is, that a State may constitutionally discharge a

- public employee, paid by public funds, for refusing to an-

‘swer questions relevant to his employment even though the

refusal is based upon his ne against self-incrimina-

tion.

@.e

35 .

The reliance by the Courts below upon such cases involv-

ing public employees ignores the settled distinction between

the rights of private citizens and those of public employees.

The authorities have always proceeded on the principle

_ that the Government as an employer must possess many of

the powers with respect to its employees that a private em-

ployer has. Indeed, at one time it was widely believed that

the due process clause afforded the governmenta] employee

no protection whatever insofar as his job was concerned.

See, Bailey v. Richardson, 182 F. 2d 46, 57 (D. C. Cir.),

aff’d by equally divided Court, 341 U. S. 918. Although this

approach to the rights of governmental employees has been ,

modified considerably in recent years (See, e.g., Wiemann.

‘ v. Undegraff, 344 U. S. 183), it is still true that the Gov-

ernmentyin its role'as employer, can demand many. things

from its employees that it cannot demand from private citi-

zens merely because they hold a license from the State. No

libertarian outcry is prompted by denial of the right to

strike to Government employees. But could a State consti-

tutionally deny the right to:strike to, say, barbers and taxi

drivers without providing some compensatory substitute

for that right? It is also true that a State may constitu;

tionally discharge an employee for taking an active part in:

“political activities. [/nited Public Workers v. Mitchell, 350

U.S. 75. Does this mean that it can constitutionally disbar

attorneys for engaging in political activities? Indeed, there

would seem to be nothing in the Constitution requiring a

State to maintain a civil. service system in preferencé to a

“Spoils system. And yet.a State would surely be denying

due process if it disbarred all attorneys who happened to

.support the wrong political. party. | |

Pai

. Many cases have, explicitly recognized the difference be-.

: "tween public employees and private citizens. For-example,

in Ex parte Garland, 4 Wall. at 378,.this Court said:

-*“*The profession of an attorney and counselor §is

not like an office created by an Act of Congress,

which depends for its continuance, its powers, and

its emoluments upon the will of its ‘ereator, and the

possession of which may be burdened with any con-

ditions not awa by the Constitution.’’

In Parker v. Lester, mabe: the Court of Appeals for the

Ninth Circuit, in holding unconstitutional a security pro-

grany which summarily prevented merchant ‘seamen from

carrying on their vocation, stated (227 F. 2d, at p: 717):

_*The liberty to follow their chosen employment i is)

no doubt a. right more clearly entitled’ to constite-

tional protection than the right of a government em-

_ ployee to obtain or retain-his job. It has been sug-

gested that the latter is not entitled to protection of

the due process clause. Bailey-v. Richardson, 86 }

. U.S. App. D. C. 248, 182 F. 2d 46, 57 . . The plain-'

tiffs here are citizens of the. United Siates andthe .

rights and liberties which they assert relate not to -

any public employment present or prospective, but

to.'their right’ to pursue their chosen wocations ‘as

merchanf seamen.’* ;

. Indeed, this Court in Cammer v: United States, 350 U.S.

399, 406-407, quoted. with approval the statement that an

attorney has as good a right té the exercisce of his profes-

sion, ES oie .

“| | as the mechanic has to follow his trade, or ~

the merchant to engage in the pursuits of commerce

. The public have almost as deep an interest in

the independence of the bur as of the bench.’

Nor does an attorney’s oe as an officer of the Court niake

_ him the equivalent of a public servant. In the Cammer case

(350 U. S. at 405) this Court pointed out that, unlike other

Court officers such as marshals, bailiffs or clerks,

ea lawyer i is engaged in a private profes-

sion, important though it be to our system of justice.

In general, he makes his own decisions, follows his

own best judgments, collects his own fees and runs

bis own business.””, li.

The Supreme Court of Florida recently indicated its

awareness of the irrelevance of cases: involving public em-

ployees. “After its decision in Sheiner v. Florida, 82 So. 2d

657, holding that the disbarment of an attorney for refus-

‘ing to answer in reliance on his privilege deprived him of

due process of law, that Court, on July 24, 1958, ordered

further argument limited to the impact of Beilan and

Lerner, supra. The Court subsequently reaffirmed its ear-

lier position, thereby frustrating another attempt to disbar

Sheiner for. his invocation of the privilege. Florida v.

Sheiner, 112 So. 2d 571.

The Supreme Court of Illinois is in accord. In Re: Hol-

land, 377 Ill. 346; 36 N. E. 2d 543. In the course-of holding

~ on State grounds that the suspension of an attorney for as-

sertion of the privilege constituted error, that Court dis-

‘tinguished the case from that of a policeman asserting the

same privilege. nig!

Even the New York Gk pias their turn-about in

the instant case, recognized that a State does not possess

the same power over private citizens that it does over pub-

lic employees. In Hecht v. “Motiaghan, 307 N. Y. at 468-469,

‘121 N.E. 2d at 424, the Court of Appeals said:

be :

* “In the present case, however, the petitioner is

, not the employee of any public body nor is he the

appointee of any municipal officer. Rather, he is a

' private citizen whose livelihood is derived fron? the

fares and gratuities he receives from the persons

whom he serves ‘as a licensed hack driver. He is not

under the direct supervision of a public official in the.

performance:of his daily routine, but is merely regu-

lated with regard to certain aspects of his business. —

‘The rules applicable to the disciplining, suspension

and discharge of civil employ ees should not be ex-

ng tended to include. the suspension or revocation of 1i-

lic funds.’”* ” ae a eet tp

"And the Court: of pe that had decided’ that an.at-

torney conld not be disbarred for refusing to yield his privi-

lege against self-incrimination, in the Matter of Ellis, 282. _

N. Y. 435, 26 N. E. 2nd 967, did so in the face of a decision

only six weeks: earlier that a police officer could he: dis-

missed for refusing to sign a waiver of immunity, Cantel-

’ line'v. McClellan, 282 N. Y: 166, 25 N. E. 2d 972. Notwith- .

standing the fact that-Cantelline v. McClellan was urged

upon the Court of Appeals i in Ellis,* it held that an attor-

ney could not be disciplined for a similar refusal. a

- So also the Supreme Judicial Court’ of Massachusetts in

Opinion of the Justices, 332 Mass. 763, 126 N. E. 24 100,

held that a statute would be unconstitutional if it required’

the discharge of teachers in private as well‘as public schools

solely for invoking the privilege against self-incrimination

at anfinquiry. Thus the Court in distinguishing between,

public and private employment of teachers, cogently, stated

(126 N. E. 2d at 103): x

* See brief of Petitioner- ise in Matter of Ellis, at pp.

24-25.

39 | bi :

; “Nothing in this opinion is inconsistent with what

; was recently decided in the case of Faxon v. School —

Committee of Boston, 331 Mass. 531, 120 N. E. 2d

772. In that case the. question was whether a pablic

board having charge .of public schools could in. the

» exercise of its judgment in a particular instance dis-

miss a public school teacher, for refusing to testify

about his relations with communism. In that case

- the. public as represented by the school. committee : °

had the rights of an employer in the selection and

retention of employees suitable to the enterprise. in

- hand. There was no attempt to interfere generally

with the petitioner’s practice of his profession. The .

question there was whether the school committee .

could be compelled to employ the petitioner i in public

-employment. The question now before us is whether -

all employers public or private can be compelled not

to employ a person who has dxercised his constitu-

‘o tional right. The difference is obyious.’’, (emphasis

is the Court’s)

| It is in the context of the Government as employer that

the decisions in Beilan, Lerner and Nelson and Globe must

be read. This Court was, of course, aware that it was.deal-

ing with public employees in those cases. Indeed, it is even

' ‘fair to say that it emphasized that fact at a number of

points. See, e.g., Beilan v. Board of Education, 357 U. Ss.

at 405, 408-409, 410.

When read j in context, it.is plain that Beilan, Lerner and

Nelson and Globe do not mean that the State is free to do

' * to its licensees whatever it may do to its employees. Any

other reading would seriously jeopardize many of our fun-

‘ damental liberties, for millions of Americans are licensees

hitherto thought to-be safe from the kind of restrictions

that Governments may aigese upon their employees. An

extension of the doctrine of those cases to cover attorneys

engaged in private practice or other licensees would. not

.. only be illogical, it. would be devastating so far as constitu-

_ tional rights are concerned. | |

, * . 2 * TR , od

It is useful to remember that the founding fathers re-

garded the privilege against self-incrimination as a funda-

‘mental protection of the individual and’as a bulwark

against the collectivism of the State, that New York too |

_ numbers the privilege among its constitutional safeguards,*

and that. the law of every Staté in the Union accepts it.

Consequently, there is no blinking the fact that, whatever

the theory, if it-were finally determined. that a State may

disbar an attorney solely because he relied on this univer-

sally. recognized privilege, it will be taking a large step

down the road to the destruction of individual rights. And -

_ that path once taken is difficult to retrace. Professor

- Gellhorn made the point eloquently in responding to the

_ Suggestion that the lawyer’s privilege should yield to his

? "so-called “duty of candor’’: |

‘Running counter to that view, however, is the

lawyer’s duty to defend rather than diminish the

nation’s constitutional heritage. That heritage

would undoubtedly lose some of its‘ richness if ex-

clusion from the bar were to be predicated on invo-

catio. ¢ a constitutional protection. No matter how

frequently the courts,and legal writers point out

that a Fifth. Amendment plea is not a confession of '

guilt, the lay public (and, indeed, some lawyers as

well) :presist in regarding the exercise ‘of constitu-

tional priyilege as a proof of unworthiness. The bar

should be able to récognize other people‘s insensi-

ee gs

* New York Constitution, Aiticle TZ Section 6.

- 41.

tivities and misconceptions witlidut ‘sympathetically

absorbing and, as it were, legitimatizing them. The

. Fifth Amendment, Dean Erwin Griswold has said,

is ‘a symbol of our best aspirations and our deep-

seated sense of justice.’ Cherished for generations

as a safeguard against ancient abuses—abuses that

have their contemporary, expression in the police

states Americans abhor_-the Fifth Amendment is

‘now challenged in the name of security. Lawyers

cannot afford to join in an emotional hunt for per-

- fect security at the expense 6f traditional liberties.

. The incautious discarding of one constitutional pro-

‘tection cheapens others as. well, for the erosion of .

’ values is, a process not easy to halt.’ Gellhorn,

Individual Freedom and pia dinnians Restraints,

at pp. 139-140.

: _ CONCLUSION: “eae

In’ the last: analysis, a lawyer continuously engaged in |

the practice of his profession for over thirty-seven years,

‘whose character and. fitness therefor has been certified on,

his admission to practice. and has never since been ques-

tioned, finds himself disbarred by the lower courts for his ‘

refusal to waive a constitutional right which is one of the

great prides and glories of our American.system of the true

administration of justice. Exercising the privilege in good

faith, relying on the advice of competent counsel, sup-

ported by a number of decisions of the highest court of his

own State, which that Agert now effectually repudiates in -

these words:

- 4“The holding in each case was that a lawyer like’

every other citizen is constitutionally’privileged not

to answer damaging questions. The -difference be-

tween those eases and the present one may seem

slight but it is enough to permit a fresh examination

(or re-examination) of the question now directly

pgesented, ”

this petitioner has received what to him is a professional

death penalty. What the Court of Appeals calls a slight

difference is in reality non-existent. The’ tragic injustice

inflicted upon petitioner demands correction by this Court

and the. preservation of the constitutional privilege against

self-‘ncrimination, despite its destruction. that some have

advocated when applied-to lawyers. The affirmance of the

judgment below would deprive the petitioner of his only

means of livelihood, regardless of his unquestioned good

character and fitness and an exemplary record and stand-

ing as a lawyer. We submit that no such miscarriage of

justice based on distorted concepts of the ethical, moral

or professional duties and obligations of an attorney-should

. be countenanced by this.Court. The judgment below should

be reversed and the bar of this nation thus assured that

_ the exercise of their constitutional privileges in good faith

will not be construed by this Court as any evidence what-

ever of professional misconduct or as the automatic, ipso

facto, per se relinquishment of the cherished right to con-

tinue to practice an anaes profession.

« Date: _— 19, 1960

TxeoporE Krenn.

Counsel for Petitioner

15 Broad Street

New York 5, N. Y.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.