# Brief for Respondent — Cohen v. Hurley (No. 84) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0352%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Respondent - **Published:** January 1, 1960 ## Text * I Gitice Supreme Coun, US FILED: SEP 17 1960 j . JAMES R. BrauwNING, Clerk | Ix THE Pucreme Court of the United States Ol ae Ro TERM, 16 2 No. &4 6 meetin IN THE MATTER of | ALBERT MARTIN CQ@HEN, wee . Petitioner, oa : c s' i . J ‘ ; sh. ° i . DENIS M. HURLEY, ° . Respondent. On Wart or CertroRari To THE Court oF | Peed ALS OF TRE STATE OF NEW YORK AND THE SUPREME Cot t+ OF THI STATE oF New York, APPELLATE Division, SECOND DEPARTMENT, . JOINTLY OR IN THE ALTERNATIVI . BRIEF FOR "RESPONDENT be Denis M. Hurry, Attorney and Counsel for Re sige dent Ottice and Post O'ttice ies ss, oo. Hall, * Brooklyn LwWew York. -2 Micragnt A. CastaLpi, ‘ es ' . * “| MiciaAgEL Caputo, * James BP. Nrenorr,. | Of Counsel. . \ INDEX © ‘ 7 a > PAGE : Opinions Wo riscs tn dtisavetaketesvenes Seemens 2 Jurisdiction .....,..... aed ous pacae Attestcens ee Question Presented RRSP sate he ee ee iaeann deen Constitutional Provision Involved ......... se eccees an Statutes Involved ...... Woatubeas beceurecererrey 3 ME og choice ec eecue aad: 4 Petitioner’s Testimony &t the Additional Spe- cial Term ..... eed adewsande tes costacecnt ea sy) ommnnty of Argument ee exw meen ske tends vi Tr ° Post I—In a judicial inquiry ordered by the Appel- - late Division into unethiedl practices of lawyers, petitioner as.an attorney and officer of the court, ‘ was under a g@ity to answer all relevant questions relating to ‘his professional conduet..” For a, breach of that duty the lawyer is subject to dis- ~ ciplinary action~not by way of punishment, but for the protection of the publie, the «Bench ‘and errs te eee Vesey. ee Memberghip in the Bar is a 1 Privilege Burdened ee PD: sa Oe ne eieckecdesivessanets 42 .: Plenary Power of the Court to Supervise and ‘Control the Conduct of Attorneys .......... 18 Basis of Disciplinary Charge Preferred ota IE ac aha unekebasexbeescccursceecs .15 The Lawyer’s Duty to ' Answer Relevant Ques- | tions ina Judicial Inquiry .................. 17 a “a ° : Ree il ; INDEX sit . Y | PAGE Point II—As a citizen petitioner had the right to ~ invoke the constitutional privilege’ against self- incrimination. As a lawyer, pxtitioner was under a duty to answer to the courf. - Petitioner may not~évade: the disciplinary consequences for a breach of his duty to speak up as a lawyer by choosing«to remain silent under the exercise of his constitutional privilege ....... Du eaeueas on 23 The Lawyer’s Role as a F iduciagy | ‘ - 27 Conflicting Views as to the Lawyer’s Status .... 27 Answers to Other Arguyents ‘o daa Gti bate cau hpwace Post 111—Petitioner has been accorded the fullest measure of procedural due process ? med Conclusion ............... ase lieceiveessersacese Appendix--.......... usta eens hicee rs caese. " \ Cases Crrev’ Anonynious v. Baker, 360 U.S. 287 iceaeyevadeseds 45,65 Anonymous No. 14 v. Arkwright, cert. den. 359. ee Pema & Vis telecneeMageicas om _ Anonymous Nos. 16 and 17 v. Arkwright, cert. den... 350°U. S.. 1008 .....:.... icuibeeseua ua weeuees 4 Anonymous (No. 1) v. Hart, cert. den. 359 U.S. 953 4 ; Beilan v. Board of Edue., 357 UL S. 3990-69000... 12, 21, 22, , 24, 1 OO Canteline v. McClellan, 289/N. Y. 166 .........5... ot, 21 Christal v. Police Comm. . od Cal. App. 2d S64. 1D 21, 25, 26 Lal Fo a) mae = -* S iii - PAGE Ex parte W all, wr oe 3% gee Is Greenberg v. United States, ZO LW 2025 (C.C.A. | © ist Cir. . July 12, 1960) Per uate en aah ee nearer ec. 0S In re Cioffi, 21 Mise.-2d sis, aff do N D. 2d 425, aff'd m. T, 4.5. Dele 06 WOE... oases od... 0, ob In re Isserman, ail U.S. 286,289... eee PPT ae Lerner v. Casey, : 2 x. Y. 2d 2, aff'd 357 U.S. Me cacceeerecayees® Seleeates ees W210, ance Matter of Bar Association of the City wf New Nork, ~ 222 App. Div: SAD, SAE oF... ee cee eo cnes «14,19 Matter of Brooklyn Bar Association, 225 pp. Div. 149 (2nd Dept. 128) ........ Serer ee Te ane Matter of Ellis, 282 N. Y. 4) i waatenan ead ean ts . 22 Matter of Grae, 82. NOY. 48 04000... Pres a Matter of Neuman, 169 App: Div. G28... ee oP s - Matter of Rouss, 221. N.Y. 81, 84-85 (117)... 12, 26 Matter of Williams, 138; KF. .Supn. 279,280 ......... 1 Me Auliffe v. New Bedford, 1nd Mana, 216 eae ke - it Meinhard v. Salmon, 249 N.Y 2 Re eee oe Nelson ¢. Los Angeles cia! re U..8 } .:..48, 20,2 : ; . — Fh People ex rel, Karlin v. Culkin, Ys ®, Y, 465 24.6, 12,15, _— 1d, I, as | Ne hware v. ‘Board of Bar Examiners of New Mexico; BAS U.S. 232, QAT-BAD- . ee ens re 3.19 Theard v. United States, 354 US, 278, 281 a an bs! ; / + Usrrep States Constirution Amendment XLV, Section 1, Clause 2 ............055 2 a) awe fe i iv : * INDEX STATUTE INVOLVED PAGE - Section 90 -of the Judiciary. Law of the State of A SIR CREE SAS ae atid ha Geeta oc lA New York Stati: Constitution Article 1, Section 6 .......... aewawre eee iveeninate 9, 26 Section 27 (Constitution of 1777) .................. 14 % New York Penat Law © Sections 270-a, 270-b, 270-e, 271 -d, 276 cocccccccceces 17 8 * MISCELLANEOUS, Drinker on ‘‘Legal Ethies’”’ ...... Sih wisn hwnd eaens 18, 19 IN THE ‘Supreme Court of the uted States OCTOBER TERM, 1960 ve" * No. 84 +. » Iw THE Matters ~*~ 2 q ‘ Ausert Martin CoHEN, a ; Petitioner, ¢ v. * Denis M. Hustey, a 3 | Hespondent. é. vv » BRIEF FOR RESPONDENT Petitioner, Albert Martin Cohen, a New York attorney, hy writ of certiorari granted by this Court, has been al- lowed review of an order of the Appellate Division of the’ Supreme Court of the State of New York, Second Judicial - . Department, disbarring him from the practice of law for ‘professional misconduct. The Court of Appeals of New ‘ _ York affirmed the.order of disbarment. The misconduct - found was that Cohen hindered and impeded a judicial in- quiry that had been ordered by the Appellate Division . (a) by refusing to answer questions concerning is profes- sional conduct, which-were relevant, to the inquiry and (b) by refusing to produce relevant records set forth in a subpoena duces tecum served upon him. | Statement. ba Since petitioner claims that: New York acted arbitrarily in disciplining him, a statement of the essential facts and the procedure fcllowed is in order. The genesis of this proceeding isa judicial inquiry undertaken by direction of the Appellate Division: Second Department. Advised by the Brooklyn Bar Association’s — petition (presented after its own to the standards of conduct for lawyers so eloquently promulgated by this Court: that a lawyer must be imbued with-and demonstrate ‘‘tliose quali- ties of truth-speaking, of a high sense of honor, of granite. discretion, of the strictest observance of fiduciary respon- sibility, that have, throughout the centuries, been com- pendiously described as ‘moral character’ which ‘has been the historic unquestioned prerequisite of fitness’ to be a member of the Bar, and that to ‘a wide and deep extent, the law depends upon the disciplined standards of the profes- sion and belief in the integrity of the courts’ *’ (Mr. Jus- ° tice Frankfurter’in Schware y. Board of Bar Examiners of New Mexico, 353 U. S: 232, 247-249). (Emphasis ours.) Plenary Power of the Court to Control ey ; Mindful that membership in the Bar is a ‘revocable privilege, we turn to a consideration of the court's power to suprvise and control the conduct of attorneys. A scholarly \review of the history of the far-reaching control possessed by the courts over'the conduct of attor- - neys is —, Vv Carpozo, Ch. J., in Karlin, supra. He : ; . rd ‘ ~14-" ; vues” points out (at pp. 471-472) that Section 27 of the New York State Constitution of 1777 provided that all attorneys appointed and licensed to practice shall ‘he ‘‘regulated by the rules and orders”’ of the courts. Particularly relevant to the questions posed by the case at bar is the discussion in Karlin of the centuries old procedure: in England whereby a barrister was under a duty to answer regarding -his professional behavior under penalty of expulsion,.pages i 472473: ; ‘“‘Would the men who arn tie Constitution of 1777 have been in doubt for a moment that a rule or order might be made whereby lawyers would be under . a duty, when so directed by the court, to give aid by their testimony ‘in uncovering abuses? We find’ the: answer to these questions when we view the history of the profession in its home across the seas. “6680 @ @ the benchérs of his inn might i inquire of his. behavior. We can hardly doubt that refusal is answer would have been followed by expulsion. * * * Short shrift would there have been for the barrister who refused © —* to make answer as to his professional behavior in de- fiance of the vistigre. — (Emphasis ours. ) The power of the judiciary. to supervise per control the » conduct of attorneys is no less plenary today than it was when our system of jurisprudence was first established. ' That power is not only vested in the Appellate Division by statute (Judiciary “Law, Section 90), but it is also inherent in the court (Matter of Bar ‘Association of the City of ‘New York, 222 App. Div. 580; 584).°* — = ° * The visitors were the judges who had supervisory control over the inns of court and«who éxercised this control if the benchers of the inns failed to perform their duties. ** See also opinion of the Appellate Division in the instant case (R. 90-91; 9 A. D. 2d at 499-49). om If a barrister was, suspected of misconduct, | 15 ~It- is also evident that. a preliminary inquiry as to a lawyer's conduct may be made by the court itself or it may appoint someone else for that purpose. ~ Judiciary Law, Section 90, subd.-6; People ex rel. Karlin-y. Culkin, supra; Matter of Bar Association of the City of New York, supra; Matter of Brooklyn Bar Association, 223 App. Div. 149 (2nd Dept. 1928). Here, the Appellate Division directed that the investigation be conducted on its behsif by the Judicial Inquiry. The Supreme Court Justice presiding at the inquiry: was directed to hear the evidence and to report his findings and recommendations to the Ajpellate — Division. Thus, the Judicial Inquiry is the alter ego of the court. As such, a proper relevant question asked by the Judicial Inquiry is the same as if the question were asked directly by the. Appellate Division. ; To complement Section 90, the Appellate Division has promulgated Special Rules regulating the conduct of at- térneys in its Judicial Department. The genesis af such io in previous judicial inquiries. . For example, with respect to ‘tnegligence. cases,”’ Rule 3 requires an attorney to file a statement of retainer setting forth certain pre- scribed items Rs information. We specifically mention Rule 3 because the questions that petitioner refused to answer and the records that he refused to produce relate to the very negligence cases for which he was required to file a statement of retainer. In this connection, we hgain repeat that most of the factual data included in the ques- ‘tions put to petitioner came from pétitioner’s filed State- nents of Retainer. - Basis of Dissightanty Charge Preferred. Against Petitioner. Having demonstrated that membership in the Bar is a ,privilege burdened with, continuous conditions, and that the courts have plenary power to determine whether an at- torney has breached one of such conditions, we turn to the charge leveled against petitioner. 16 - Petitioner was charged with professional misconduct, the * specification of misconduct being set forth in paragraph 23 of the petition submitted by respondent (R. 15). Because of petitioner’s insistence that he was disciplined for asserting his constitutional privilege,we-emphasize the ~ fact that the petition presented to the court by respondent sought to discipline petitioner, not on the ground that he chad asserted his constitutional privilege against self-in- crimination, but precisely upon the ground (as stated in paragraph 23 of the petition) that his refusal to answer relevant questions and his refusal to produce releyant _ records ‘‘are in disregard and in violation of the inherent duty and obligation of respondent as a member of the legal profession”, in that such refusals: (a) are-‘‘eontrary to the standards of candor and frankness that are required * * * of a lawyer to the Court’’, (b) are ‘‘in defiance of. and flout the authority of the Court to inquire into and elicit information within respondent’s knowledge relating to his conduct and practices as a lawyer’’, (c) have ‘‘hin- dered and impeded the Judicial Inquiry’? which had been ordered by the Appellate Division, and (d) have resulted in respondent's withholding ‘‘vital information bearing upon his conduct, character, fitness, integrity, trust and re- liability as a mémber of the legal profession’’ (R. 15). In this context, the Appellate Division plainly stated the issue presented to it (R. 65): ‘ ‘*Thus, the sole question for our determination is whether the * * ° [petitioner], by. reason “of his re- | fusal to answer relevant questions and to produce rele- vant records, may he disciplined as a lawyer * ° *.’’ The Appellate. Division and the Court of Appeals of the ‘State of New York have both ruled that petitioner laid him- Self open to discipline when he refused to. answer relevant questions and produce relevant records for the information and scrutiny of the Appellate Division in the course of that co¥rt’s inquiry and investigation. > dl ‘ ‘ u a @ a — - | The Lawyer’s gis to Answer Relevant _ Questions in a Judicial taquiry. It has already been shown that ‘* Membership in the bar is a privilege burdened with-conditions”” (Matter of Rouss, 221 N. Y. 81, 85, supra). In affirming the order. disbarring petitioner, the Court of Appeals noted that (R. 85): **Those conditions must not be arbitrary but the . . proper and appropriate ones arepumerous.”’ Among other things an attorney cannot solicit retainers -or employ others to solicit them for him, or divide lis fees with laymen (New York Pena! Law, Sees. 270-a, 270-h, 270-c, 270-d, 276). If he knows of such practices by others, he must inform ‘the court {Canon 29) and he must be candid and frank wii!. the court at all times (Canon 22 That being so, it follow. that a lawyer, obviously possess- ‘ing pertinent information, owes a duty to the Bar ind ° to the court to help expose and uproot such evil practices and corruptiva at the Bar and in the courts with respect to negligence cases. Manifestly, such duty can be dis- charged only by candid answers to relevant questions. In the words of the, A:ypellate Division (R. 67-68) : ‘Can he [the lawyer], with impunity, disregard _ the eanons of e-hies and cast io the winds all in- ‘= quiries into his professional cond as a lawyer? Can he disregard his obligation to be frank and caudid . . with the court? Can he negate his duty to cooperate with this court to expose. the evil and unethical prac- tices at the Bar and-in the courts? Can he refuse to assist this court in its quest to maintain the jn- tegrity and morality of the members of the Bar and to maintain the high standards of the legal profes-ion?. We say, emphatically no.”’ ( Emphasis ours.) In iniaiatiie a person to practice the profession of: the law, the court represents to society at large that here’ bs a 18 is an hendrable man deserving of its trust and confidence— one who is worthy to uphold the honor of the_professien ~~ and the dignity of the court.. When the lawyer, as an officer-of the ¢ court, refuses to give an accoufting of his ‘stewardship, and .réfuses to answer to the court for his professional practices, then the lawyer loses his ‘‘good standing’’ as an instrument or agency to advance the ends of justice. (See Théeard v. United States, 354 U. S. 278, 281.) Disbarment must follow usé the court can no longer represent to the public that the lawyer is worthy. of its trust and confidence.* Henee;the courts say that disharment-is not by way of punishment of the individual, . but “*for the protection of both the court and the pub- lie * * * from the official ministration of persons unfit to practice’’ (Ex parte Wall, 107 U. S. 265, 288, 307). ° The principle thus enunciated was adopted by the Ameri- ean Bar Association in this language: “The purpose of discipline of lawyers is the protection of the public, the profession dnd the adjninistration of justi¢e, and not the punishment of the person disciplined.’’** ' | Counsel for petitioner ‘indulges in dire -predictions with respect to the ruling. in this case upon every New’ York lawyer similarly situatéd and indeed upon all non- lawyer licensees not here even remotely involved. Such speculation has no bearing upon the problem of whether this particular casé offends federal due process. Nor aré we here concerned with anyone éxcept a member of the. bar—a professional burdened with fiduciary responsibility. The opinions of the New York courts in this case formu- - late and enuncjate state policy specifically governing the conduct of New York lawyers. The standard of conduct mandated for lawyers.is high‘but no higher than the stand- ard traditionally demanded by our courts down through * See also Drinker on “Legal Ethics”, pages 35-38. ** 80 A.B. A. Rep. (1955) 470. 19 the centuries. (See People ex rel. Karlin v. € "ulkin, 248 'N. Y. 465.) The promulgation of such standards by a local state court do not in any sense violate fedéral due process. The state courts rejected petitioner's contention that he was deprived of due process—-and did so Upon a } rational basis and sokd grounds, When an applicant is admitted’ to the -bar, he is held out and certified by, the admitting court as a person in whom the court places its confidence and‘ trust: (see Drinker ‘** Legal Ethies”’, pp. 36, 37 and cases cited). Upon the basis of that representation, clients confide their most precious gauses to him, Relying upon the court’s certifica- tion, clients entrust the lawyer with their most sacred confidences, with the defense of their properties, their liberties and their lives. Clients every day place ‘such -trust even in lawyers who’are strangers to them and whom they meet for the first time when in difficulty. . In a broader sense, every American lawyer is a trustee of the vast rich heritage of the common law \and all that it stands for. Thus, u upon admission, in reality a lawyer hecomes a trustee. It is for this reason that the courts , below spurned the concept that an attorney.is a mere li- censee of the State, with no higher obligations than a bare licensee, or that the lawyer here has been consigned to the same category as such licensees as bail bondsmen, hair- dressers, -restaurant owners, mortician’ taxicab drivers, merchants, peddlers, and motorists, as urged by our ad- versaries, ~ apt To the contrary, the courts below have simply reaffirmed that the status of an attorney: is more akin to that of a trustee or, fiduciary and that his obligations and responsi- bilities are just as sacrosanct, if not more so, That this is the historie view of the exalted status of the lawyer in American society has been uniformly. attested. to by our courts time and again. (Schware v. Board of Bar Exam- . ‘iners of New Mexico, 353 U.S. 232, 247; Matter of Wil- liams, 158 F. Supp. 279, 280.) 20 eee 2. When a trustee or fiduciary is called upon ‘to give an accounting of his stewardship he must.do so or forfeit his’ _trusteeship. That is the case here. = - a In the landmark case of Meinhard v. Salmon, 249 N. Y.- 458, Chief Judge Cardozo spelled’ out the nature of a trus- tee’s duty in these now famous words: ee “Many forms of conduct permissible i in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than. the morals of the market place. Not honesty alone, but the punctilio-of an honor the - most sensitive, is then the standard of behavior. As ‘ to this there has developed a tradition that ‘is unbend- ing: and inveterate.’’ + Such language is niiibde in full force to all those | who become trustees of the heritage of the law. The thrust of petitioner’s argument is that he was ‘arbi- trarily deprived of the privilege of practicing law.. This arguinent closes its eyes to the record; it is blind-and deaf to the profound reasoning and judging * contained in the opinions of the courts of New York i in this case. Petitianer was-disciplined for the breach of one of the conditions, with which the .privilege of membership jn the Bar is burdened. He was disciplined precisely for refus- ing to give an accounting of his stewardship as a lawyer; for lack of candor; for breach of his inherent obligation as an officer of the court; and for impeding the inquiry ordered by the court. For these reasons, the courts of ~ New: York decreed that he could be steward no longer. Petitioner’s claim that he was arbitrarily disciplined is ~ based upon the notion that no state may constitutionally discipline a lawyer for refusing to answer relevant ques- tions posed by a:state judicial inquiry. (See Petitioner’s - brief, pp. 21, e¢ seq.) These are strange words to be a aaa by a fiduciary of the public trust. . - x2 21 This court has held that public employees are subject to dismissal for refusjng to: answer pertinent questions posed by the employer-municipality (Lerner v. Casey, 2. N. Y. 2d 355, affd. 357 U. S. 468; Beilan v. Board of Educ., 357 U. S. 399; Nelson v. Los Angeles County, 362 U. Se 1; '.and see Christal v. Police Comm., 33 Cal. Apyf. 2d 564; Canteline v. McClellan, 282 N. Y. 166).. The underlying theme of these cases is that the duty of forthrightness at- taches to public employment.° Simply put, whenever a pub- lic employer questions an employee it is.entitied to answers, ‘ and to honest answers, from its employee. -Phrased dif- ferently, these cases stand for the proposition that public employment is burdened with conditions, one of the condi-. * tions being. forthrightness. Can it reasonably be said that a lawyer’s duty of forth- rightness to his supervisory court is not as great as that ofa public employee -to higsuperior? Has the character of the legal profession sunk to the low level where the duty _ of candor which an attorney owes the bench, bar and public , is not as great as that which a subway conductor (the _ Lerner case) owes to tlie public? Yet, this is the end result which petitioner's principal argument in this Court would make inevitable. ~~ ~ Tf,'as the courts of New York State with ee reason and abundant precedent have held, the refusal of a lawyer, without more, to answer relevant questions posed by a state | - judicial inquiry warrants the taking of disciplinary action against the lawyer, the fact that, the’ lawyer may have chosen to place his’ refusal on a ‘claim of constitutional privilege against self-incrimination does not put the matter in any different posture. As a citizen, he. may thus escape possible criminal prosecution. But, as an officer of the court, he may not thus shirk the solemn obligations of his lawyerhood. Lf POINT Ie -_ a citizen: petitioner had tip right to invoke the constitutional privilege against self-incrimination. As a lawyer, petitioner was under a duty to answer to the court. Petitioner may not evade the disciplinary con- sequences for a breach of his dhity to speak up as a lawyer by choosing ta remain silent under the a: of his constitutional privilege. “1 Tn. this. Court, as in the.New York State courts, petitioner | persists in asserting that he was disciplined for invoking his constitutional privilege against self- inerimination. . Tlie opinions below helie any such claim. The Appellate Division, in disbarring petitioner, spe cifi- ~ eally declared (R. 76-77) : “To avoid any. possible doubt as to our position, we | . State again that the basis for any disciplinary action _. by this court is. not the fact that respondent has in- xoked his constitutional privilege against self-in- -. crimination, but rather the fact that he has deliberately refused to co-operate with the court in its: efforts to expose unethical practices and in its efforts to deter- mine incidentally whether he had committed. any acts of professional misconduct Which destroyed the char- acter and fitness required of him as a condition of his - retention of the privilege of remaining a member, of the Bar.”’ ee A. . Petitioner takes the view that the foregoing statement of _ the Appellate Division is grounded in semantics. This Court has already rejected the ‘*semanties’’ argument in the cases of Lerner v. Casey, 357 U.S. 468, aff’g, 2.N. Y. 2d ' 355, aff’g, 2 A. D. 2d.1; Beilan v. Board of Education, 357. U.S. 399; and Nelson v. Los Angeles County, 362 U. S.-1. In Lerner, petitioner was ‘an employee of the New York : City Transit Authority. He refused to answer questions.” » . — of his employer based on the exercise of his privilege against self-incrimination. On that premise, Lerner argued that he could not be ‘dismissed. The Appellate Division . rejected that contention and upheld Lerner’s distiissal for refusal to answer *‘on whatever grounds’’ (2 A. D. 2d 355). Chief Judge Conway, who wrote the opinion for the Court of Appeals, reaffirmed the fact that petitioner had not been discharged for invoking the privilege against self-inerimina- tion but for refusing to answer relevant questions concern- ing his trustworthiness and reliability. - To prove the truth of this statement Chief Judge ‘onway employed a supposititious example (2 N. Y. 2d at€p. 369): ‘‘It seems to us that it would be more clear if we - supposititiously divided the conduct of petitioner r into two parts. -The first, wher? he was asked by ‘his eui- ‘ployer whether he was thon a member of the Com- - ' munist Party. That question he refused to answer. He then left the room. Certainly by that conduct he would have: given evidence of his own untrustworthiness and ‘-unréliability. Suppose,‘then as the second part of -his conduct, -he returned five minutes later and told the Commissioner of Investigation that he had refused to- answer his question because to do so might tend to in- ‘ criminate him. May not. the employer discharge an employee who refuses to answeg-his proper question! _ If the petitioner, m the case wes 2 sed, had not returned © té the Commissioner five minutes later ‘and given a reason for his- conduct, we think all would agree that - he was properly discharged. Does it change the situa- tion because he returns to say that he refused to answer because to do so might tend to incriminate him! ‘Does that explanation destroy the evidence which he has given to his employer of his, untrustworthiness and unreliability as a security risk? Does the explanation » require that the employer consider without any doubt _ that the employee by his explan«tion has again become ‘trustworthy and. reliable as a,seeurity risk as a mnatter of law a We think not.”’ The order of the Court of Appeals in Lerner was af- firmed by this Court (357 U. S. 468) upon the reasoning» that Lerner’s dismissal for his refusal to’ answer ‘“was: not _ destroyed by the claim of the Fifth Amendment privilege heeause the Commissioner was not required to accept that claim as an adequate explanation of the refusal’? (Mr. Justice Harlan at p. 476). In Beilan, supra, a school teacher was dismissed’ for re-, fusing to answer relevant questions in an inquiry by the 2Superintendent of Schools. . This Court upbeld the dis- ‘ missal stating (357 U.S. at pp. 405-406) : ; ‘‘By engaging in teaching in the public schools, peti- tioner did not give up his right to freedom of beiief, - speech or association. He did, however, undertake obligations of frankness, candor and co-operation in answering. inquiries made of :him by his employing Board examining into his fitness to serve it as a public schoo] teacher.’’ : In Nelson, petitioners had been ordered by their é¢m- ployer, the County of Los Angeles, to answer any questions __ asked of them by a Congressional subcommittee before: . which they had been subpoenaed. There was a- California statute -making.it the duty of any public. employee so subpoenaed to answer any «uestions as to his membership in any organization advocating the forceful overthrow of the United - States’ government. Petitioners refused to answer any questions on Fifth Amendment grounds and were thereupon discharged from their county, employr ~nt. ’ This ‘Court, following ‘Lerner and Beilan, supra, held that they had been validly separated from their employ- ment not for invoking their constitutional privilege. but for insubordination under California law. : pakee a Mr. Justive Clark, writing for the majority of this Court, stated that if these men had simply refused without more to answer the subcommittee’s questions, the county could o iS . 2 25 ? certainly have discharged them, and*the fact that they chose. tq place their refusal on a Fifth Amendment ciaini put the matter .a no different posture since their assertion _ of that claim was not used as a basis for drawing an in- ference of guilt. (See, also, Christal v. Police Comm. of San Francisco, 33 Cal. _ App. 2d 564, 9 P. 2d 416.) So here, the petitioner, ‘‘an officer of the court, and like the court itself, an instrument * * * of justice’’ (People ex rel. Karlin v. Culkin, 248 N. Y. 465, 470-471) was under an obligation to cooperate.with the Appellate Division in its judicial inquiry bearing upon the professional conduet of attorneys by adiswering the court’s relevant questions. Failure to perform that obligation would frustrate the court and render it impotent to perform its statutory-and inherent duty to clean ap the Bar. [etitioner’s refitgal to answer such questions constituted a breach of his duty, warranting disciplinary action by the Appellate Division. Petitioner seeks to escape the impact of Lerner, Beilan; and Nelson by claiming that the principle of those cases is restricted to.cases where a public employee refuses to an- swer. relevant questions posed by his ewploy er. The cardinal principle of those cases cannot SO ‘restricted. _ For, the philosophy underlying Lerner, Beilan and N elson applies with equal, if not greater, force to the case at bar. ‘The determining factor is that in each of the cases, includ- ing the instant one, there is the positive duty to speak up ‘or get out. It matters not whether the relationship is one of public employment so long as ‘‘the public interest’’ is directly involved, Quick to recognize ‘“‘the settled distinction inissins the rights of private citizens and those of public employees’’ (Petitioner’s , Brief, p. 35), nevertheless: throughout his brief, petitioner professes to perceive: no difference in the dual capacity of the citizen-law' er, when called as a wit- ness in a judjcial inquiry by the court. b) 26 Can it rationally be said that the duty of an attorney vis-a-vis*the court which admitted him and is chargeable ‘with control. over his professional conduct, is any less . sacred than the duty to the public employer of a subway ' eonductor (the Lerner case), a teacher (the Beilan case), or a policeman (the Christal case)? Is not the duty of the lawyer higher than any of these non-lawyers? And, is the public interest any less vital in the case of the attorney? - In the ultimate, the fundamental principle is the same,’ « namely, that he who refuses to answer when, in the public interest, it is his duty speak, must bear. the conse- quences, ° The Court of hoon,’ in ‘affirming the order disbarring petitioner, summed this up in these words: ‘*In those cited eases -(i.e., Lerner, Beilan, Nelson ~ and Globe, and Christal) the duty to co-operate in in- vestigations by answering relevant questions was found in statutes or constitutions. The lgyer’s duty is found elsewhere—in the common law and in the Canons of Ethics—but it is just as plainly written. ° In this State a lawyer on admission to the Bar takes the same oath as does a public official (see Judiciary Law, Sec. 466)’’ (R. 86) ° ig As demonstrated above, the New York Court of Ap- peals has ruled that the petitioner was not disciplined for having invoked his New York State privilege against self- incrimination (N. ‘Y. Const., Art. 1, Sec. 6); that-he was disciplined for having refused to ‘answer relevant questions . in the judicial inquiry, such conduct having constituted ‘ a breach of the condition’on which depended his privilege of membership in the Bar (Matter of Rouss, 221 N. Y. 81); and that the posture of the matter was not changed by the fact that he chose to place his refusal to answér on a ) claim of the New York State — privilege against self- i incrimination. | . { a proposition that invocation of the State constitutional é 27 That aspect of the decision of the New York Court of Appeals, which involves an interpretation of state law-and .. a construction of the State Constitution only, is, we believe, beyond review by this Court. The Lawyer’s Role as a Fiduciary Reference has already been made to the fact ‘that the status of a-lawyer is akin to that of a trustee or fidu- ciary, charged-with “‘the punctilio of an honor. the most sensitive.’’ . Where a court ousts a trustee who refuses to render . his account under a plea of constitutional priv ilege, the - trustee’s claim of deprivation of due process has no va- lidity; he is ousted precisely because he refuses to per- form his duty. To ward off his ousting, the trustee cannot be heard to assert that the beneficiaries- must, in the first ifstance, prove an affirmative case against him. The right to formal accusation and proof, to confrontation and cross- examination of witnesses, is beside the point where there is the absolute positive duty of rendering a true account in the first instance. An attorney-trustee is in no different position. . ; é The New York courts; while readily eran to the privilege against self-incrimination is the right of every citizen and must be sustained, refused to subscribe to the _ narrow view that the privilege itself is the sole measure of a lawyer’s éntire duty or to the categorical coriclusion that the exercise. of the right, in refusing to answer per- tinent questions, can never under any circumstances bé a _ breach of a lawyer’s duty to the court. Conflicting Views as to the Lawyer’s Status. These important considerations point up the fact that cepts of the role of the lawyer in American society. ~ the opposing views in this case reflect two conflicting con-_ 28 ‘ In substance, our adversaries urge that if the view of . the courts below should prevail,.then the lawyer is rele- ‘gated to second-class citizenship for the reason that he is. -penalized for pleading the privilegeoaccorded ‘to every citizen. " Oni the contrary, our courts hold that a lawyer like every other citizen may invoke his privilege, that the courts must sustain such invocation, and that is the full extent and — protection of thé constitutional guarantee. They take the ~ view, however, that a lawyer is. more than a citizen, that . he is a citizen-plus; that he has undertaken far higher obli- gations than an ordinary citizen; that as trustee of a price- less res*—the true administration of justice as the firmest foundation of the republic—he must, when called upon by’ the very court that admitted him and certified his trust- worthiness, and which has plenary supervision over hjs conduct every thoment of his professional life, render a true accounting of his stewardship. Contrary to peti- tioner’s, contention, firm insistence by the courts upon the fulfillment of that obligation by the lawyer-trustee strikes’ no blow at a lawyer’s liberty or independence, for he assumed that, obligation from the very‘day of his adifission to the Bar. . In striking contrast to the prophecies of, petitioner, af- firmance of this order of disbarment: will have a most salutary and beneficial impact upon the practice of the law : ‘ Vv . © * This trust res of the lawyer was defined, in his own-inimitable way, by Mr. Justice Holmes as, “the body’ of our jurisprudence,—that vast cenotaph shaped on the genius of our race, and by powers greater than the ° greatest individual, yet to which the least may make their contribution and inscribe: it with their names. The glory of lawyers,Tike that of men of science, is ‘more corporate than individual. Our labor is an endless organic process. The organism whose being is recorded and protected by the law is the undying body of society.” (Holmes, Daniel S. Richardson [1890], in Speeches [1913] 46, 47-48.) * [petitioner], but of inany other lawyers who similarly have asserted their constitutional privilege against self-incrimination as a basis for refusing to divulge pertinent information with respect to” their ‘practices in relation to negligence cases. ‘ The: resolu- tion-of this question will’ also determine in largé - “measure whether this court’s supervisory and regula- tory power over lawyers, and whether this court’s plenary power to curb all evil and unethical practices. in the profession of the law, are to be suppressed and subverted, and whether this court is to be rendered impotent in the performance of its inherent and statu- tory duties relating. to attornets and’ té the adminis- tration of justice.”’ ° | > Mindful of the gravity of the wesetine? that. is- bestia ‘for determination by this Court, we affirm that we do not’ seek to trespass ppon or invade the constitutional right. against self-incrimination granted to every citizen, whether or not he be a lawyer. (The record here fully bears ou the care and the caution with which we approached the \, presentation of this important case). The Bar should be ever zealous to protect that right against any encroach- ‘ment. ‘However, wheré the assertion of that constitutional right by one who is a lawyer and officer of the court is in- consistent and incompatible with his duty of candor to the court, the lawyer must make a choice. Tf he deliberately chooses, as is his unquestioned right as a citizen, to assert . *- . a P x { ‘ ’ . . ’ \ \ 35 - ‘his constitutional privilege and thereby remain silent when it is his professional duty to speak out as a lawyer, then he must bear the consequences. For conduct unbecoming an ‘officer of the court, by breach of his special duty, as a lawyer, he may no longer remain as a trustee in the ad- ministration of justice by the Bench and the Bar. -We respectfully submit, therefore, that this Court, as - the nation’s supreme. guardian of the true administration of: justice, should in all respect& lend its sanction to *this ruling of the courts of New York. The order: of disbarment should be affirmed. Dated: ' September 15, 1960.- Brooklyn, N. Y. ; 2 : \ . Denis M. Hvurvey, Attorney and Counsel for Respondent, Office and Post Office Address, ‘ : -. - ~ Borough Hall,’ \ Brooklyn 1, New York. Micwatn A. CasTAcptl, MicHaEL Caputo James F, Nrenorr, : : Of counsel. ee Wane dt APPENDIX” : To the Clerk of the Appellate Dibdision, Second | udicial Pepartment _ This statement as to ‘Retainer is filed pursuant to and in compliance with Rule 3 of the Special © Rules regulating the conduct of attorneys and counsellors at law in the Second Judicial Department. * “4, Date of agreement as to retainer... September ith, 1955 4 2. Terms of compensation... Bato. = 50% of any amount. recovered for damages by suits settlement. or otherwhees oo cccicenme | 3. Name and home address of stent... PATRICK } MC | 2CORMACK, aod pesestin samme. | seneeseneneneen BRONK...38 5... Mow. York... ieee \ of ne 4. Name and office address of attorney..... ALBERT “MARTIN GOREN, ESQ.s.16 Court Street, Brooklyn... New..York 5. Date of occurrence of injury....... AUZUSt 19th, 1955. = 238th Street & Willow Avenue, bron, Wes York 6. Place of occurrence Of imjury.......2--2---..c-cssccnessereesneeneeees wr pt . w 7. Title and description of the condemnation or change of grade proceeding ~ 8. Date proceeding was COMMENCEM ec cssccvvvevseveveerveeens oon , stigueeesitanl 9. Number or other designation of the parcels affected...................-..-..0sseeceseeneenen --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386409_0352%3A09. Public record. Not legal advice.