# Brief for petitoner — Cohen v. Hurley (No. 84) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0352%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for petitoner - **Published:** January 1, 1960 ## Text = 7 — ——— ~ : 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 Ve : . 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 B. 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 s) 11 u 13 16 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 — w iv . 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 ; 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.’ ’’ 14 ’ o. * Any experienced advocate, and certainly the members of - this Court, would not fail to appreciate the possibility of i 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. 4 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 15 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, © - 16 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- 17 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. 18 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 19 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, ; ee 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.’’ 21 - 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- 24 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) :. a ‘*. . -. 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 _. ee ag Ss 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 26 o/ 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.). “ ? -_ 29 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. 9 30 _ 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 laws, rules or regulations appertaining to the con- © ’ 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- sional misconduct against petitioner. © , 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 r 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. ‘ | | t ‘ 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. | | ~s 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.’’ s 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.’ 37 r) ~ 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: 38 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- ‘= censes of those whose salaries are not paid f rom‘pub- © 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 * 40 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- 42 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. a é « Date: _— 19, 1960 TxeoporE Krenn. Counsel for Petitioner 15 Broad Street New York 5, N. Y. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0352%3A04. Public record. Not legal advice.