Petition for a Writ of Certiorari — Spevack v. Klein
Supreme Court brief1967
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SUPREME COURT OF THE UN
N. 2
SAMUEL SPEVACK, Petitioner,
V.
SOLOMON A. KLEIN, Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
COURT OF APPEALS OF THE STATE OF NEW
: YORE.
Lawrence J. Larro
Want H. Dempsey, In. 5
Muri J. Fuyyyw
: 734 Fifteenth Street, N.W.
Washington, D.C. 20005
; Attorneys for Petitioner.
Of Counsel: -
Bzewagp SHAKE a 7
: 235 East 42nd Street : :
New York 17, New Tork 3
INDEX u
Ornnons n 855. ie ROA 3
nner eee 2
Questions PärSNriͤ )) ota
Srarurzs Involved ...........502 000.0 eis Lee +B
SraTEMENT oF THE Cas ' 3
Reasons ron Grawtine tHe Wait ......./.: tit AHI | 6
1. The decision below is in conflict with this
Courts decision in Malloy v. Hogan, 878
U.S. 1, and other cases applying the the Fifth
Amendment al,, ee ß 7
2. The disbarment of petitioner for his refusal to
relinquish his privilege against self. inorimina-
tion is arbitrary and discriminatory state ac-
tion in yiolation of the Fourteenth Amend-
⁹,j˖ẽẽꝭ, c dace poe 11
3. The. State ney not deprive petitioner of the
Fifth Amendment privilege against com pu-.
sory production of his financial records and
documents by a requirement that attorneys
preserve records of that ive 16
a. This Court’s decision in Shapiro v. United
States is no longer valid in lot. of its sub-
sequent decision in Albertson v. S.A. C. B.,
— US. — and of other decisions applying’
the Fifth Amendment Se STS Li Oe 18
b. The Shapiro doctrine is inapplicable to the
record requirement in this base 24
ee cc... eee
Citations: Seeder
Albertson v. S.A iis — US. — (Nov. 15,
1966). ‚ Nn 18, 21, 22
Anonymous v. 1 7 App. Div. 2d 874,
leave for cures Comets 5 N. T. A Certs
denied, 359 U.S. 1009 i N een . 8
A. u 00
— 7293-4 f
#2
INDEX
Anonymous v. Baker; 260 TS. 287............
e Barenblatt v. United States, 360 U.S. 109......
Beard v. United States, 222 F.2d 84 (4th Cir.)
cert, denied, 350 U.S. 84s
Beilan v. Board of Education, 357 . 399
In re The Integration Rule of the Florida Bar,
Boyd v. United States, 116 U.S. 616. 9, 20, 21
Cohen v. Hurley, 366 U.S. 117 vine: passim
Counselman v. Hitchcock, 142 U.S. ee Veer
Cummings v. Missouri, 4 Wall, 277, 322 9, 10
Curcio v. United States, 354 U.S. 11 17, 20, 23
Danis v. United States, 328 U.S. 582. 17, 18
E v. Ilimois, 878 U.S. 888 15
Ea Parte Garland, 4 Wall. 333. 9
Ex. Parte Wall, 107 U.S. 265.................. 11
Fahy y..Connecticut, 375 U.S. 85. 18
N. California, 380 U.S. 609 ............. 9
v. United States, 353 U.S. 3911 16
Hoffman v, United States, 341 U.S. 479...... n
In ve Coken, 166 N. E. 2d 672 (N. L.), af d sub
nom. Cohen v. Hurley, 366 U.S. 117. 16, 17
Ia te Fenn, 128 S. W. 2d 657 (Mo.) 11
-. In re Grae, 26 N. R. 24.963 (N. v.) Sea: 11
Ia re Holland, 36 N.E. 2d 543 o 3, 11
Railroad Trainmen v. Virginia Bar, 877 US. 13 12
Russell v. United States, 306 F. 2d 402.(9th Cir.) 24
Schware v. Board of Law Examiners, 53 UB.
TT ĩ ˙ AAA . 12,14
Shapiro v. United States, 335 U.S. 1. passim
Sheiner v. State, 82 So. 2 657 N 11
Slochower v. Board of Education, 350 US. i
CTT 10, 12, 15 9
Stevens v. Marks, No. 210, and
Stevens v. McCloskey, No, 290, OT 1965, cert. .
granted, 382 U.S. 809 (Oct. 12, 1965)
8 7 States v. Ansani, 138 F. Supp. 451 (N. D.
ba tees. 276 F. ad 617 (7th Cir.)
rev'd on other grounds, n
United States, 365 U.S. 312.
United States v. Kahriger, 345 US. Ee |
United States v. Remolif, 227 F. Supp. 40
DDr teh ik cea Me aa ee
United States v. Silverstein, 314 F. 2a 789 ‘(ind
Cir.), cert. denied, 374 U.S. 801.
United States v. White, 322 U.S. 694..........
Weiman v. Updegraff, 344 US. BS Sia re as
Wilson v. United States, 221 U.S. 361.......... 18,
Statutes:
Constitution of the United States:
2 2
Eee B 8E
0
%% „„ eae copepod)
Art. 1, See. 6, Constitution ot the Sts. af New
18 U.S. C. 787(a) and (e) 8
Süd ee 5
iv INDEX
Civil Prastice Annual 9-26 (19687)
Comes DR e Rev. 875 (1957)
Meltzer, Required Records, the McCarran Act,
and the Privi > Aion Self-Incrimination,
18 U. Chi. L. Rev. 687 (19511ͤ)))))) .
Note, Constituti tional Limits on the Admissi-
bility in the Federal Courts of Evidence ©
Obtained from Required Records, 68
Rev. 340 (1954).............
„L.
Note, Required Information and the Privilege
Against Self-Incrimination, 65 Colum.
J MMO occ cles cee ct ems 20
Note, The Privilege to Practice Law versus
mme Fifth Amendment Privilege to Re-
main Silent, 56 N.W. U. L. Rev. 644
„ ‚ ( Pak egy em 11
Note, Unconstitational Conditions, 73 Harv. L.
„ MAGE oS SS eeeise eae 14
Ratner, Consequences of Exercising the Privi-
inst Self-Incrimination, 24 U
Chi. L. Rev. 472 (1957) ...........:.. 8
Jo nta 9 ys 0 ry ay 8
W ie ely é
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SUPREME COURT OF THE UNITED ‘STATES...
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SAMUEL SPEVACK, Petter,
°S \SOTOMON A. KLEIN, Re i e 0
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CCC
the judgment of the Court of Appeals of the State of New
ee ene
„ e abviewsiaoltiton cid?
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1
Jurisdiction
The jurisdiction of this Court is invoked under 28 U.S.C.
1257(3). Tue judgment of the Court of Appeals was ren-
dered on December 1, 1965, and, on December 13, 1965, Mr.
Justice Harlan entered a stay of the order of the Appellate
Division conditioned upon the filing of a petition for certio-
rari on or before January 24, 1966.
Questions Presented
1. Whether the disbarment of an attorney solely because
of his refusal, based upon a good faith claim of the privilege
against self-incrimination, to testify and to produce records
before a State Judicial Inquiry is in violation of the self-
incrimination clause of the Fifth Amendment, as applied to
the States by the Fourteenth Amendment.
2. Whether, assuming the Fifth Amendment standafd
does not of itself preclude the disbarment of an attorney
under such circumstances, the disbarment is nonetheless a
deprivation of due process of law or equal protection of
the laws under the Fourteenth Amendment.
This petition involves the Fifth and Fourteenth Amend-
ments to the United States Constitution and Special Rule V
of the Supreme Court of New York, Appellate Division,
Second Department, all of which are printed in pertinent
part as Appendix E hereto. 1
"Statement of the Oise
8 — 1957 the Appellate Division of the Supreme
Court of New York, Second Department, ordered a Judicial
Inquiry into alleged unethical practices among segments
of the Kings County Bar. See Anonymous v. Baker, 360
US. 287. For a number of years the Second Department
has had special rules regulating the conduct of attorneys
who practice in personal injury, property damage and cer-
tain other types of ‘actions under contingent fee arrange-
ments. Among other things, the rules require the filing by
such attorneys of statements of retainer setting forth the
details of such arrangements and the preservation for a
five year period of ‘‘the pleadings, records and other papers
pertaining to such Action . ., and also all data and memo-
randa of the disposition thereof... [App. EI.
Petitioner a practicing attorney in Kings County
since 1926, and he has filed numerous statements of retainer
as required by the rules On June 2, 1958, a subpoena issued
calling for petitioner to testify and to produce records
before the Judicial Inquiry. Petitioner’s motion to quash
the subpoena was denied, Anonymous v. Arkwright, 7 App.
Div. 2d 874, leave for appeal denied, 5 N.Y. 2d 710, cert.
denied, 359 U.S: 1009, and he appeared before the Judicial
Inquiry and was sworn as a witness (R. 52). However,
he refused to testify or to produce the records on the ground
that this might tend to incriminate him (R. 70). The Pre-
siding Justice, after stating his „opinion that petitioner
hadi a perfect right to plead that constitutional privilege,”?
called attention to the pendency of a “‘test ease” presenting
similar issues and informed petitioner that no further pro-
ceedings would be held in his ¢ . e until the final is 08!
ofthat tat cane (R. 71-78).
n ins Hur epee Rs ait 3 2
8.
_The test case, Cohen v, Hurley, 966 U.S. 117, wa
this Court in April, 1961. In July.
by this Cou “eRe Sake Baie OL Coe Ot eee
TRIM te at nien hall tun n hs
—— —
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the Presiding Justice of the Judicial Inquiry that, in view
of the decision in the Cohen case, he wished to withdraw
his claim of privilege (R. 102). Shortly thereafter he re-
tained new counsel, and, after further adjournments of the
hearing, he appeared before the Judicial Inquiry and was
asked if he did wish to withdraw his claim of privilege, as
indicated in his letter. Petitoner replied that, upon the ad-
vice of his new counsel, he continued to claim his privilege
against self incrimination under the Fifth and Fourteenth
Amendments, and also under Article 1, Section 6 of the
Constitution of the State of New York. He also stated his
reliance upon the standard of fundamental fairness under
the due process clause of the Fourteenth Amendment and
upon the equal protection clause of that Amendment (R.
115-18).
In response to questions by the attorney for the Judicial
Inquiry as to the specific documents included in the sub-
poena (R. 118-19 printed as App. F), petitioner persisted
in his decision ‘‘not to produce any of the records or to
answer any questions in relation thereto [R. 117].’’ Sub-
sequently, he asserted his rights also under the Fourth
Amendment’s prohibition against unreasonable searches
and seizures (R. 143-44). Respondent, by direction of the
Judicial Inquiry, then filed a petition seeking disciplinary
action against him.
The petition filed by respondent stated that this peti-
tioner had been guilty of misconduct in ten separate re-
spects, Eight of the charges were allegations that he had
failed t6 comply with certain court rules rélating to filing
of retainer statements, that he had filed false statements
and pleadings, that he had commingled clients’ funds with
32 that he had violated the canons of ethics. The
ninth charge was. that petitioner, apart from his refusal
aining repeated postponements and making or caus-
5
ing to be made false representations; and the tenth charge
was that petitioner was guilty of misconduct in that ‘‘his
refusal to answer questions and to produce the records
required by said subpoena duces tecum to be produced, are
in disregard and in violation of the inherent duty and obli-
gation of~[petitioner] as a member of the legal profes-
sion... [Petition of Solomon A: Klein to Appellate Divi-
sion 4].’’ The petition and answer were referred to a
referee for hearing, at which hearing respondent announced
that he was abandoning all charges in the petition other
than the ninth and tenth charges. Petitioner was again
called to testify, and he again refused to answer questions
under a specific claim of all the federal constitutional provi-
sions upon which he had relied in the Judicial Inquiry
(R. 164-65).
In his report, the referee found that neee had not
proven the allegations in the ninth charge. Among his
specific findings were that the evidence offered no basis
for a conclusion that petitioner’s claim of privilege ‘‘was
invoked more extensively than reasonably required to pro-
tect [petitioner] against incrimination’’ and that the In-
quiry was neither prejudiced nor misled by petitioner’s
July 1961 letter indicating his intention to withdraw his
claim of privilege (Ref. Rept. 10, 19-20). As to the tenth
charge, the referee found that petitioner did refuse to
testify and to produce records under constitutional. privi-
leges based upon the Fourth, Fifth, and Fourteenth Amend-
ments and upon relevant state constitutional provisions. He
made no finding as to whether petitioner’s refusal to testify
and to produce records was in violation of his duties as an
attorney, since that question was ‘‘inextricably bound up
with the constitutional issues ‘raised by [petitioner’s] af-
ꝶ6́51w—wꝓsß.. tans
within my province [Ref. Rept::33}:°? «see
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firmation of the referee’s report and for the imposition
of discipline against petitioner, and the Appellate Division
entered a judgment disbarring petitioner. Finding the
sole issue to be petitioner’s refusal to testify and produce
records before the Inquiry, the court, relying solely upon
the Cohen case, held that an attorney has ‘‘an absolute
right to invoke his constitutional privilege against self-
incrimination’’ but that when he does so he fails in his
inherent duty fo the-court to divulge all pertinent informa-
tion necessary to show his character and fitness to remain
a member of the Bar and necessary to the proper admin-
istration of justice, and he must, consequently, forfeit his
privilege of remaining a member of the bar [App. B,
p. 31].““ The Appellate Division in no sense questioned
either the applicability of the Fifth Amendment to peti-
tioner’s refnsal to testify and to produce records or his
good faith in asserting that privilege, but it held that he
must make an election between incrimination and disbar-
ment. N
e e U es est of de Ap
pellate Division in a memorandum order without opinion,
on the authority of Cohen and on the further ground that
the Fifth Amendment privilege does not apply to a de-
mand for production of records required by law to be
kept by an attorney (App. C). Judge Fuld concurred,
stating that while he adhered to his views in dissent in
CRG, IOS NBs en ren he deemed himself
bound by that ease. om
1 for Granting the Writ
eee eee e the court below
erred in relying upon Cohen v. Hurley,supra, and that the
governing decisions are Malloy v. Hogan, 378 U.S. 1, and
other of this Court’s decisions applying the Fifth Amend-
7
ment. Under those decisions, the State is precluded from
requiring petitioner to elect between aeserting the privilege
and retaining the right to practice in his profession. H,
however, the Fifth Amendment itself is thought not to pre-
clude the State action here, then it is our alternative con-
tention that the broader standards of due process and
equal protection were breached by the State. And, finally,
we show that the decision below cannot be supported by the
Court of Appeals’ partial reliance upon the required
records’’ doctrine of Shapiro v. United States, 335 U.S. 1.
1. The decision below is in conflict with this Court 's deci-
ston in Malloy v. Hogan, 378 U.S. 1, and other cases apply-
ing the Fifth Amendment. The opinion of the Appellate
Division relied solely upon this Court’s decision in Cohen
v. Hurley, supra, and the Court of Appeals also relied upon
that case. In Cohen, this Court, over the dissents of four
of its members, upheld the disbarment of an attorney for
his refusal to testify and to produce records in the same Ju-
dicial Inquiry involved in the instant case. The Court held
that it was neither arbitrary nor discriminatory for New
York to disbar an attorney who, by claiming his state consti-
tational privilege against self-incrimination, failed to co-
operate adequately with the Inquiry. The Court passed
only upon petitioner’s question of fundamental fairness
under the Fourteenth Amendment, holding that ‘‘a State
has great leeway in defining the reach of its own privilege
against self-incrimination . .”* 366 U.S., at 125. The
Court also held that — had not preserved any Fifth
_ Amendment claim and that, in any event, no Fifth Amend.
105
ment privilege was applicable in a State pro e
2 Whether the State of New York — — netic
— — of ite Constitution, upen
of. [as =
against self-incrimination
Wha the splay —
In this case, however, petitioner has relied specifically
the Fifth Amendment’s protection at all stages, and
contends here, as he contended in the courts below, that
the courts’ reliance upon the standard of Cohen is in con-
flict with this Court’s decision in Malloy v. Hogan, 378 US.
1. The Cohen premise that the Fifth Amendment privilege
is not applicable against state action was rejected in Mal-
loy, which held that ‘‘the Fourteenth Amendment secures
against state invasion the same privilege that the Fifth
Amendment guarantees against federal infringement.
Id., at 8. [Emphasis added.] The Court in Malloy specif-
ically rejected the suggestion that ‘‘the availability of the
federal privilege to a witness in a state inquiry is to be
determined according to a less stringent standard than is
applicable in a federal proceeding,’’ holding that [ilf
Cohen v. Hurley. . and Adamson v. California. . sug-
gest such an application of the privilege against self- in-
crimination, that suggestion cannot survive recognition of
the degree to which the Twining view of the privilege has
deen eroded.“ Id., at 10-11.
The federal standard, which the courts below have failed
to apply, is clear from Malloy—the State may not infringe
tethe right of a person to remain silent unless he chooses to
Stevens v. McCloskey, No. 290, cert. granted, 382 U. 8. 809 (Oct. 12, 1965).
Those cases involve the dismissal of a policeman for his refusal to sign a
waiver of immunity in connection with prospective testimony before a
jury. Petitioner contends that, if the Court coneiudes that the
|
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9
speak in the unfettered exercise of his own free will and
to suffer no penalty... for such silence. Id., at 8. Last
Term the Court reaffirmed that standard in Griffin v. Cali-
fornia, 380 U.S. 609, 614, holding that comment by a pros-
ecutor upon the refusal to testify is repugnant to the Fifth
Amendment, since ‘‘[i]t is a penalty imposed by courts
for exercising a constitutional privilege. It cuts down on
the privilege by making its assertion costly. That broad |
protection of the federal privilege has been recognized at
least since Boyd v. United States, 116 U.S. 616, 634-5, and 33
has been reaffirmed repeatedly by this Court. See, e. g., |
Counselman v. Hitchcock, 142 U.S. 547; Hoffman v. United
States, 341 U.S. 479.
In Griffin and Boyd, as in this case, the Wen
sought to impose an election, an alternative to relinquish-
ment of the privilege. The election in Griffin was to suffer
the consequences of comment on the refusal to testify; in
Boyd it was the forfeiture of thirty-five cases of plate glass J
in a forfeiture proceeding; here it is the deprival of the
right to practice a profession in which petitioner has en-
gaged for almost forty years. That election is no more
permissible here than in Griffin and Boyd, since this Court
has held that exclusion from any of the professions or
any of the ordinary avocations of life for past conduct can
be regarded in no other light than as punishment for such
condu % Ea Parte Garland, 4 Wa: 333, S77; rg dere
mings v. Missouri, 4 Wall. 277, 322.
Nor can it fairly be disputed that „6
was based upon invocation of his privilege under the Fiftn
Amendment. Both the opinion’ of the A p * 5 8 Division
rm
to produce e and they eee 4 N refusal
c vende
. Shas
Privilege. Indeed, the referee refrained from making a
finding as to whether petitioner’s refusal was a violation
of his duties as an attorney on the ground that the question
was ‘‘inextricably bound up with the constitutional issues
raised’? by him. Faced with this Court’s decision in
Slochower v. Board of Education, 850 U.S. 551, 558, that a
statute which ‘‘operates to discharge every city employee
who invokes the Fifth Amendment is unconstitutional, the
Appellate Division stated that its order was not grounded
upon petitioner’s invocation of the privilege but upon his
refusal to cooperate with the Judicial Inquiry. The opinion,
however, unequivocally lays down an inflexible rule which
admits of no exception. If an attorney ‘‘elects to invoke
his constitutional privilege against self-incrimination and
thus avoid exposure to criminal prosecution—an election
which undoubtedly is his to make—he cannot at the same
time retain his privilege of membership at the bar [App.
B., p. 82)}.’’ It is evident, therefore, that the distinction
asserted by the court below is solely verbal and not sub-
stantial. For this reason whether the disbarment is said
to be based upen a failure to cooperate or upon the plea
of self-incrimination the legal result must be the same,
for what cannot be done directly cannot be-done indirectly.
The Constitution deals with substance, not shadows. Its
inhibition was leveled at the thing, not the name.’’ Cum-
' mings v. Missouri, supra, at 325.*
The importance of the application of the federal standard
of the Fifth Amendment’s self-incrimination privilege in
Neon v. Los Angeles , 362 U.S. 1, whieh held that it was not
a violation of due process for a state employee to be discharged for
|
i
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*
11
disciplinary proceedings against attorneys is apparent from
the conflicting decisions of state courts concerning attor-
neys’ claims of the privilege on either state or federal con-
stitutional grounds.“ Compare In Re The Integration Rule
of the Florida Bar, 103 So. 2d 873, 875 (Fla.) (“ This court
is committed to the doctrine that claiming the privilege . . .
may not be considered a breach of duty to the .court.’’);
Sheiner v. State, 82 So. 2d 657 (Fla.) ; In re Holland, 36
N. E. 2d 543 (IIL); and In re Grae, 28 N. E. 2d 963 (N. T.);
with In re Fenn, 128 S. W. 2d 657 (Mo.); and Johnson v.
State Bar of California, 52 P. 2d 928 (Cal.). See generally,
Note, The Privilege to Practice Law versus the Fifth
Amendment Privilege to Remain Silent, 56 N.W.U.L. Rev.
644 (1961). 3 i
2. The disbarment of petitioner for his refusal to re-
linquish his privilege against self-incrimimation és ar-
bitrary and discriminatory state action im violation of the
Fourteenth Amendment. Petitioner contends that the spe-
cific standard of the Fifth Amendment, ag applied to the
states in the Fourteenth Amendment, pre..ades the action
at issue in this case. But even if the State 's action in
—
.
—
a
12
employment. Tosigsberg v. State Bar, 353 U.S. 252;
Schware v. Board of Law Examiners, 353 U.S. 232; Slo-
chower v. Board of Education, supra; Weiman v. Updegraf,,
344 U.S. 188. — f
Preliminarily, it is important to recognize that this
Court’s decision in Cohen v. Hurley, supra, and its analo-
gous decisions in Nelson v. Los Angeles County, 362 U.S. 1;
Lerner v, Casey, 357 U.S. 468; and Beilan v. Board of Edu-
cation, 357 U.S. 399, are not controlling on this issue in light
of Malloy v. Hogan, supra. In both Cohen, 366 U.S., at 118,
and Lerner, 357 U.S., at 478-9, the Court held that there
could be no reliance upon the Fifth Amendment privilege
in the state proceedings there involved. In Beilan the
Pennsylvania Supreme Court’s determination that the dis-
missal was entirely unrelated to Beilan’s claim of privilege
was accepted by this Court, 357 U.S., at 402, n. 3. Nelson,
on the other hand, did involve state sanctions that resulted
from the invocation of the Fifth Amendment. But Nelson
was decided at a time when it was not considered arbitrary
for a state even to compel testimony, in the face of an as-
sertion that it would incriminate the claimant under federal
law. Knapp v. Schweitzer, 357 U.S. 371.5 A fortiori it was
not then considered arbitrary for a-state to discharge an
employee who claimed his federal privilege against self-
In sum, if the case is to be tested by the fundamental
The premise of Knapp, which was decided on the same day as Beilan
and Lerner and which was equally applicable to those cases, was that
lil is plain that the [Fifth] Amendment can no more be thought of as
restricting action by the States than as restricting the conduct of private
Amendment privilege against self-incrimination is the security of the
exertion of the power of the Federal Government.
saute" 13
fairness standard of the Fourteenth Amendment, Mallo
has. introduced an important new element: the obligation
of the State under the Fourteenth Amendment to preserve
inviolate a person’s claim of the Fifth Amendment.* The
question, then, is whether the action of the State in forcing
petitioner to choose between his livelihood and the privilege
is so offensive to the community’s sense of fair play as to
be arbitrary or discriminatory under the due process and
equal protection clauses. 7
There is no denying the fact that the state has imposed
a grievously heavy penalty upon petitioner’s claim of his
Constitutional right. In whatever verbal formula the
State’s motive may be couched, the inescapable fact is
that: petitioner’s, claim of his privilege was the act that
produced the disbarment. It is also perfectly obvious that
the State's action will have an inhibiting effect on the
Fifth Amendment in our scheme of Constitutional govern-
ment. See Murphy v. Waterfront Comm’n, 378 U.S. 52, 55.
Petitioner in no sense disputes that the State has a legiti-
mate interest in maintaining high standards of competence
and character among the members of the legal profession.
At the same time, it is relevant to the Fourteenth Amend-
14
ment question that this interest of the State is not of pre-
eminent importance. It is not of the same order, for ex-
ample, as society’s interest in self preservation in
of grave national emergency. Indeed, the interest argu-
ably is of no greater importance than the State’s interest
in convicting the guilty—an interest that by the explicit
command of the Constitution is made subordinate to the
Fifth Amendment.
But granting the legitimacy of the State’s interest, the
critical question remains whether what the State has done
is reasonably necessary to preserve the integrity of the
bar, since the State may not, by characterizing the practice
of a law as a/‘privilege’’ rather than a right, withhold or
discontinue the exercise of that ‘‘privilege’’ without meet-
ing the standards of the Fourteenth Amendment, Schware
v. Board of Law Examiners, supra, at 239, n. 5, nor can it
ein the guise of prohibiting professional misconduct,
ignore constitutional rights.“ N. A. A. C. P. J. Button, 371
US. 415, 438. See Railroad Traimmen v. Virginia Bar, 377
US. 1. See generally Note, Unconstitutional ——
73 Harv. L. Rev. 1595 (1960).
Plainly, no such reasonable relationship e eee
lished. With respect to this case, petitioner’s pleadings
in actions before the courts and the statements of retainer
that he filed disclosed the identity of all of his clients, so
that the state had but to take the time required for careful
investigation in order w establish whether a case against
him could be made. And beyond the facts of this case,
petitioner suggests that there is nothing in reason or ex-
perience to indicate that the maintenance of high stand-
ards of conduct nie attorneys will be prejudiced in any
material way if „ a8 well as other citizens, are per-
mitted. to invoke Fifth Amendment rights without
fear of loss of livelihood and reputation. Perhaps the
>
ee
development of independent evidence is not as efficient ss
convicting a man out of his own mouth or disbarring him
if he refuses to cooperate, but the Bill of Rights ordains
that where its protections conflict with the efficiency of a
system of law enforcement, the fault lies in the system
and not in the Constitution. Bocobedy v. een, 378 US.
478, 490.
Moreover, the procedure 3 here by the State
does not merely denigrate an important eonstitutional right
unnecessarily. It is fraught with the same danger that is
characteristic of all devices which undermine the guaran-
tees of the Fourth, Fifth and Sixth’ Amendments: it is .
bound to punish the innocent along with the guilty. This
Court has emphatically **scored the assumption that those
who claim this privilege are either criminals or perjurers.
The privilege against self-incrimination would be reduced
to a hollow mockery if its exercise could be taken as equiva-
lent either to a confession of guilt or a conclusive presump-
tion of perjury.’’ Slochower v. Board of 3 supra, at
557."
Finally, the arbitrary 0 discriminatory nature of the
States position is particularly- apparent in its application
to the Judicial Inquiry in which petitioner’s testimony and
production of records were sought. While, pursuant to a
specific request, petitioner was permitted to have counsel
ti ni a wm
*
PEEP FONE EA MAME LOSE WAI MAI AE
.
LO Ria nee alee Sa n
dent case” was developed. PH
16
of cross-examiration. See Id., at 292-3. It is in just
this sort of proceeding that the Court has recognized
the privilege to be most valuable. See Grunewald v. United
States, U.S. 391, 422-23. To be sure, the State recog-
nizes petitioner's absolute right—as a citizen—to. claim
the privilege, but only at an impermissibly high price—
the forfeiturerof the right to practice his profession“
3. The State may not deprive petitioner of the Fifth -
Amendment privilege against compulsory eee of his :
VVFVFP VVT
private investigators who refused to testify before the Judicial Inquiry
because they were not permitted to have their counsel in the hearing room
during the interrogation. In holding the secret interrogation’ without
presence of counsel consistent with due process of law, the Court. noted
the availability to the petitioners of the state pri e against belf-
inerimination, and quoted the following from the interim report of the
the facts.’” 360 U.8,, at 296, n. 11.
JJC
„Tb ĩ ß
5 2
Seba he — — 3
E e Cf. cases cited supra,
~
25
17
financial,records and documents by a requirement. that at- :
torneys preserve records of that type. The Appellate
Division explicitly recognized that petitioner had an ab-
solute right to * his constitutional privilege against
self - inerimination and to refuse to testify and to produce?
the records for which the subpoena called, but held that he
could nonetheless be disbarred for exerciSing that right.
In its memorandum-erder, however, the Court of Appeals
relied not buly upon the Cohen case but also ‘ —
ground that the Fifth Amendment privilege does not apply
to a demand, not for oral testimony but that an attorney
produce records required by law to be kept by him (Davis v.
United States, 328 U.S. 482; Shapiro v. United States, 335
U.S. 1) [App. C].’’. Thus, the Court of Appeals reversed i
the Appellate Division’s holding that the privilege was ap- otal
plicable to petitioner’s refusal to produce records,” although
it agreed with the holding that the Privilege applied to his
' refusal to testify. 3
Assuming arguendo that the Fifth, Amendment — . re
does not, by virtue of the so-called required records ex-
ception,’’ preclude the State from compelling petitioner to
produce his financial records and documents, that excep-
tion would not remove the privilege to refuse to testify,
either in general or with reference to the required records.
Shapiro v. United States, 335 U.S. 1, 27; see Curcio v. United
States, 354 U.S. 118. The respondent's petition for discipli-
nagy proceedings, the referee’s report, the Appellate i
Tivile opinion, and the order and amended remittitur :
of the Court of Appeals establish that petitioner’s disbar-
ment was based upon both the refusal to answer | ue
ADEE
NIE A BS RNR MORI FORE, iE Tae GS Se
— 18
N Wee b Oak
_ accepts’ petitioner's argument to the extent that petitioner
I could not constitutionally be disbarred for his refusal to
testify; the fact that the disbarment order was also based in
some inestimable degree upon an unprivileged refusal to
roduee records would not salvage that order, see Jackson
nno, 878 U.S. 368; Fahy v. Connecticut, 375 U.S. 85,
the Court thus would not have to reach the question
whether the records could be withheld under a claim of
Privilege. 3 the Court believe it appropriate to
reach that q nedtion, however, petitioner contends that the
doctrine of Shapiro should be reconsidered and réjected in
light of subsequent decisions of this Court, or, in the alter-
native, that the doctrine, whatever its validity in the con-
e ta cored e
a. This Court in Shapiro v. United States is
e subsequent decision in Albert-
son v. S.A. C. B., — U.S. — and of other decision applying
the Fifth Amendment. In the Shapiro case the Court held
that the Fifth Amendment privilege did not apply to sales
records required to be kept by food licensees under wartime
regulations of the Office of Price Administration, since those
records lost their character as private papers and acquired
‘¢ ‘public aspects. 335 U.S., at 34. The case involved a
fruit and vegetable wholesaler licensed under the Emer-
gency Price Control Act, 56 Stat. 23, who was tried on
charges of having made sales in violation of OPA regula-
tions. He contended that because he had produced, under
sales records required to be kept by him under
OPA regulations and had been assured that sueh produc-
tion conferred. x him the immunity which flowed from the
nun 0 ns of the Emergency Price Control Act,
2 { not be proseouted for violations disclosed by such
ecords. The Court, in a long opinion devoted to the con-
straction of the immunity provision of the Act, rejected the
V.
19
petitioner’s contention that its scope was broader than the
boundaries of the Fifth Amendment and held that no im-
> munity applied to the petitioner by virtue of his record
production. Noting that petitioner had not duly raised
the question, the Court then held that the Act was con-
„there are limits which the Government cannot constitu-
tionally exceed in requiring the keeping of records which
may be inspected by an administrative agency and may be
used in prosecuting statutory violations committed by the
record-keeper,’’ 335 U.S., at 32, but held este the bounds
were not exceeded in that case.
The principal authorities cited for that e were
Wilson v. United States, 221 U.S. 361, which held that the
president of a corporation had no Fifth Amendment priv-
ilege to resist the production of corporate rather than per-
sonal records merely because they were in his custody,
and Davis v. United States, 328 U.S. 582, which held that
gasoline ration coupons issued by the OPA under, regula-
tions which provided that such coupons did not decome
private property but remained the property of the gov-
ernment were not protected by the Fourth and Fifth Amend-
ments to the same degree as are private papers. Thus
Shapiro used the premise that documents belonging to a
third party do not become personal,“ and as such pro-
tected by the privilege solely because they are in the cus-
tody of the individual claiming the privilege, to reach the
nelusion that documents admittedly personal can be de-
prived of that character {and thus of the Fifth Amend-
ee eee eee eee statute or regulation
PRION en ie een Ws Feit... ss
C "The Cou in Shapiro See res from Win woo in
1 to the e 3
by to be kept in
r that there be suitable
=
3535600
erer
0
Wha TAP ote
fay
ene of. Shapiro, which is not that the Fifth
ned .againat countervailing gov-
- ermmental interests but rather that the privilege simply
does not apply because of waiver or because required rec-
ords loge their character as private papers, has been re-
jected. by most commentators, who have urged re-examina-
tion of the doctrine. See, e. g., Note, Required Information
“and the Privilege Against Self-Incrimination, 65 Colum.
L. Rev. 681 (1965); Note, Constitutional Limits on the
Admissibility in the Federal Courts of Evidence Obtained
from Required Records, 68 Harv. L. Rev. 340 (1954);
Meltzer, Required Records, The McCarran Act, and the
Privilege. Against Self-Incrimination, 18 U. Chi. L. Rev.
687 (1951).
The required records doctrine of the Shapiro « case should
be reconsidered and rejected for three reasons: First, it is
an unwarranted limitation upon the scope of the privilege
as earlier applied i in Boyd v. United States, supra, which
held unconstitutional under the Fifth Amendment (and also
the Fourth) a statute calling for the compulsory produc-
tion, in suits for forfeiture, of business books, invoices or
papers of the defendant or claimant. Under the Shapiro
doctrine, except as read in its narrowest sense, see Curcio v.
United States, infra note 15, the importer-claimant’s invoice
in Boyd was a required record not within the protection of
Shans? ™ 005 30.0. 6:40; et. that: Magenge-counat be diverse’. from. the
context of the questions with which the Court was faced in Wilson and
Davis. See Id., at 56-66 (dissenting opinion of Frankfurter, J.).
W. eg deste ger eee errs eee eee eee eda.
moieties; 18 Stat. 187:
in all suits and proceedings other than criminal arising under
the revenue laws of the United States, the Attorney represent-
government, whenever, in his belief, any business-book, in-
or paper, belonging to or under the control of the defendant
will tend to prove any allegation: made by the United
may make a written motion . . and thereupon the court .
its discretion, issue a notice to the defendant or claimant to
ö e e eee eee
Fa
2
the Fifth boned” Second, Shapiro is inconsistent
with subsequent injunctions of the Court that the privilege
„must be accorded liberal construction in favor of the right
it was intended to secure. Hoffman v. United States, 341
U.S..479, 486; see Quinn v. United States, 349 U.S. 155, 162.
Third, Shapiro is inconsistent with the Court's deeision
this Term in Albertson \ v. S. A. C. B., — US. — Gaar. 15,
1965). 8
In the Albertson case, the Court held that 1 8(a)
and (c) of the Subversive Activities Control Act of 1950, 50
U.S. C. 787 (a) and (e), and orders under those sections
requiring petitioners to register as members of the Com-
munist Party by completing and filing registration state-
ments, were violative of the self-incrimination clause of the
Fifth Amendment. The Court cited eases in which it had
held that witnesses could not be compelled to testify as to
Communist party membership or association, and held
that, if the admission cannot be compelled in oral testi-
mony, we do not see how compulsion in writing makes a
difference for constitutional purposes. Cf. People of New
York v. Reardon, 197 N.Y. 236, 243-244, 90 N. E. 829, 832.“
— U.S., at —.* That holding in itself is inconsistent with
pelled production of the invoice in Boyd, prohibited the entry into the
United States of any foreign valued in excess of $100 “without the
is violated by a requirement that an individual prepare and
file a registration statement with the government, it is
violated equally by a requirement that an individual keep
records which must be surrendered upon the government’s
call. Surely the Albertson case means more than that the
statute must be amended to require that records be kept
of the information called for by the registration form.
’ Admittedly there are factual differences between this case
and Albertson, notably the fact that the general probabilities
of incrimination from filing registration statements under
the 1950 Act are substantially greater than from keeping
and producing records under the Appellate Division rule
at issue here: But the significance of that distinction is not
determinative since the privilege depends only upon the
tendency and not the certainty of incrimination, Counsel-
man v. Hitchcock, supra; Quinn v. United States, supra;
and petitioner finds no other significant distinctions which
detract from the following conclusion of a commentator
shortly after the 1950 Act was passed:
** Accordingly, unless the Court . . . upholds the regis-
tration provisions [of the 1950 Act] as compatible with
the privilege, it must repudiate the Shapiro doctrine,
or limit it in some fashion which will suggest the
Coart’s Appraisal of the substantive policy imple-
men informational requirements. Meltzer, Re-
quired Rebords, the McCarran Act, and the Privilege
Against Self-Incrimination, 18°U. Chi. L. Rev. 687, 727
(1951).
Regardless of whether the impact of Albertson upon
Shapiro is as clear as we believe, the question of the con-
tinued vitality of Shapiro in light of Albertson is surely a
question deserving consideration by this Court. The Court
has not, since Shapiro, applied its doctrine or explained
the scope of the limitations upon that doctrine which the
A
Court acknowledged in that very case. Cf. United States
v. Kahriger, 345 U.S. 22. In view of the continuous re-
striction of the area of activity that is beyond the reach of
the government’s regulatory powers, which correspond-
ingly i the potential of the Shapiro doctrine as a
vehicle for draining the Fifth Amendment of a substantial
part of its force, the uncertainty as to the reach of Shapiro
should be resolved.
That there is much uncertainty as to the reach of Shapiro
is evidenced by the conflicting interpretations given that case
by the Courts of Appeals and District Courts. In Beard v.
United States, 222 F. 2d 84, 93 (4th Cir.), cert. denied, 350
U.S. 846, the court interpreted Shapiro as holding that
all records which Congress in the exercise of its constitu-
tional powers may require individuals to keep in the conduct
of their affairs relating to the public interest become public
records in that they fall outside the constitutional protec-
tion of the Fifth Amendment.“ In Usited States v.
Remolif, 227 F. Supp. 420, 423 (D. Nev.), however, the
15 In Curcio v. United States, 354 U.S. 118, the Court held that a
official could not be compelled, upon a elaim of the Fifth
1
it
10
1
ite
ftir
1
24
in interpretation and application of the Shapiro doctrine,
compare United States v. Clancy, 276 F. 2d 617, 630-1 (7th
Cir.), reversed on other grounds sub nom. Clancy v. United
States, 365 U. S. 312, with Russell v. United States, 306 F. 2d
402, 410-411 (9th Cir.), and United States v. Ansani, 138
F. Supp. 451 (N.D. III.). :
b. The Shapiro doctrine is inapplicable to the record re-
quirement in this case. Assuming that the Shapiro doctrine
is not wholly invalid, the factors.discussed above show at
‘ least that it must be limited so that the power to compel
production of records against a claim of privilege is nar-
rower than the full scope of Congressional and State power
to requize the keeping of records.“ Under any reasonable
limitations, the doctrine would not be applicable in this
case. Qne limitation which has been suggested is that the
privilege should be inapplicable only where evidence from
the records involved is clearly essential to the implementa-
tion of a regulatory program and where there are no other
available means of enforcement which ‘are less repugnant
Stan. L. Rev. 375 (1957). This test, while it has not been
16 Even if the Shapiro doctrine is rejected entirely, any possible impair-
ment of the government’s enforcement of regulatory programs would be
met by the State in this case, would still seem to be at odds
with the Court’s recognition that the Fifth Amendment
privilege is not to be balanced against competing State in-
terests. See Barenblatt v. United States, 360 U.S. 109, 126.
Another limitation of the doctrine (which, in petitioner’s
view, would still be an unwarranted limitation upon the
privilege) may be found in the.Court’s reliance in Shapiro
upon the fact that the sales recdrd’required to be kept and
produced by the petitioner ‘‘recorded’’ a transaction in
which he could lawfully engage solely by virtue of the
license granted him under the statute. 335 U.S., at 35.
Under this analysis only documents which served this
recording funetion would lose the protection of the privi-
lege.
No such records are involved here. The transactions in
whieh petitioner engaged by virtue of his license were fully
recorded in the pleadings filed in the Appellate Division
and other courts and in the statements of retainer which he
filed and which are not in issue here. If respondent. sought
to enforce any ethical or legal requirements against peti-
tioner, he had ready access to the information necessary
to do so. But the records called for in the subpoena directed
to petitioner, which respondent. apparently contends are
required to be kept under Special Rule 5 of the Appellate
Division, are of a completely different character, see App.
F, including such items as his check books, savings ac-
count pass books, records all loans made, and state and
Pant
— co slo oS Seas
conception of private books and papers which would not
include those . . enumerated, People v. Reardon, supra,
at 831, and the Rule is therefore not within the scope of
Shapiro and does not remove the Fifth Amendment privi-
lege.
For the foregoing reasons, this petition for writ of
certiorari should be granted.
Lawrence J. Larro
Waun H. Demrszy, Je.
Mur J. FLrxx
734 Fifteenth Street, N. W.
Washington, D.C. 20005
Attorneys for Petitioner.
Of Counsel: 4
Bunxann SHArzxix
235 East 42nd Street
New York 17, New York
Suea & Gaby
734 Fifteenth Street, N. W.
Washington, D. C. 20005
27
At a Term of the Appellate Division of the Supreme Court
of the State of New York, held in and for the Second
Judicial Department at the Borough of Brooklyn, on
the 19th day of July, 1965.
Present—Hon. Munous G. Cunt, Acting Presiding Justice.
ö Arrnur D. Bezewnay,
L. Bannon Huw, f ~
In the Matter of Samuzt»Srzvack, an attorney
: 8 A. Kum, Petitioner; .
Samut. Srevackn, Respondent.
Order of Disbarment
A proceeding having been instituted in thie court upon
the petition of Solomon A. Klein, verified the 8th day of
July, 1963, in respect to Samuel Spevack, an attorney and
counselor at law admitted in this department on March 3,
why such other or further action upon the charges embodied
in said petition, as justice may ‘require, should not be had,
and for such other and further relief as may be just and
proper, and the respondent having filed an answer, and
this court by order dated September 23, 1963 having re-
i
F
:
1
=
i
Fy
4
F
b
ey
| appropriate measure of discipline upon the respondent, by
| “hotice of motion, dated April 29, 1965.
ef ‘petitioner in sapport of motion to cotifirm report,
affidavit of Bernard Shatzkin and memoranda of respondent
in opposition to petitioner’s motion,-the report of the
Referee, the testimony and exhibits, and all the papers filed
herein, and the said motion having been submitted by Mr.
_ Solomon,A. Klein, petitioner appearing in person and sub-
mitted by Messrs. Shatzkin and Cooper of Counsel for
respondént, and due deliberation having been had thereon;
and upon the opinion and decision slip of the court herein,
heretofore filed and made a part hereof:
It is Ordered that the petitioner’s motion to confirm the
Referee’s report be and the same hereby is granted; and it
is further
Bes Ordered that fhe report of the Referee and the Referee’s
findings be 1 same hereby are confirmed; and it is
furthe
“Ordeted the basis of the Referee’s unch&lienged
oa that ndent refused to testify and to produce
his s the respondent Samuel Spevack be and he hereby
is from practice as an attorney and counselor at
e October 1, 1965; and it is further
5 eee eee
5 J cared seston is struck from the role of attorneys and
at law in the State of New York effective October
1, 1965; and it is further
. Ordered that the said Samuel Spevack be and he hereby
is commanded to desist and réfrain from the practice of the
law in any form, either as principal or agent, clerk or em-
ployee of another; and he is forbidden to appear as an at-
torney or counselor-at-law before any court, judge, justice,
board, commission or other public rity or to give to
another an opinion as to law of its application or any
advice in relation thereto’ ive October 1, 1965.
Enter: Peete
Jom J, C
“
Sirians Cox: e
Drvisios, Szecowp Jupicuat Department,
Clerk’s Office, Borough of Brooklyn, N.Y. ;
I, Joun J. Catzanan, Clerk of the Appellate Division of
the Supreme Court of the State of New York in the Second
Judicial Department, do hereby certify that the foregoing
is a copy of the order made by said Court upon the Appeal
in the above entitled action or proceeding, and entered in
my office on the 19th day of July, 1965
[Seat] Iw Wrrxess Wuenzor, I have hereunto set my
hand and affixed the seal of said Court, at the Borough of
Brooklyn, this 22nd day of July, 1965. 7
— 786% Joun J. CAN, i!
8 | Clerk,
~
Opinion of the Supreme Court of New York, Appellate
Division, Second Department
No. 1209.
In the Matter of Samus. Srevack, an attorney.
Soromonw A. Kiztn, petitioner;
* Samus. Srrvacx, respondent.
This is a proceeding to discipline respondent, an attorney ;
at law, for professional misconduct. The issues of fact were
referred to a Referee for a hearing and for report set-
ting forth his findings upon the issues. The Referee, after
rams ecg hearing, has filed his report setting
forth findings which are partly in favor of the respondent
and partly adverse to him. The petitioner now moves to
confirm the Referee’s report and for the imposition of an
appropriate measure of discipline upon respondent.
reference to this one surviving charge will be made below.
As to eight of the cane the petitioner offered no proof
and has in effect abandoned them. As to the ninth charge,
the Referee found that aa had failed to sustain
the burden of proof and that respondent was not guilty.
The remaining tenth charge—the sole charge now in
—— constituted a breach of his rant duty as an
learned Referee has found, and the respondent does not
deny: times he may have wavered in his
8
6.6: 8 5
tional privilege against sélf-incrimimation and to refuse to
supply the pertinent information; but that when a
does 8o he fails in his inherent duty to the
all pertinent information necessary to show his
and fitness to remain a member of the
to the proper administration of justice,
sequently, forfeit his privilege of remaining a re of
the bar (Matter of Cohen v. Hurley, 9 A D 2d 436, affd.
7 NT 2d 488, affd. 366 U. S. 117, rehearing denied 374 U. 8.
857, 379 U. 8. 870). As we stated in Cohen (pp. 448-449) :
„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 invoked
his constitutional privilege self incrimination,
but rather the fact that he has deliberately refused to
co-operate with the court in its eff to expose un-
ethical practices and in its efforts determine in-
fitness required of him as a condition to his retention
of the privilege of remaining a member of the Bar.
In our opinion, the doctrine which we enunciated in Cohen
has been in no way undermined or impaired by con-
holding in the subsequent case of Malloy v. Hogan
(378 U. S. 1), as urged by respondent. In that case, the
petitioner had been held in contempt and imprisoned in
consequence of his refusal to answer questions on the
ground that his testimony would tend to incriminate him.
But the petitioner there was not a member of the bar and,
4 12)
Be Sy
_ of course, his right to retain his membership in the bar,
his refusal, was in no way involved.
' Under the circumstances, this court has no alternative
than to disbar the respondent. If he elects to invoke
his constitutional privilege against self incrimination and
thus avoid exposure to"criminal prosecution—an election
which undoubtedly is his to make—he cannot at the same
time retain his privilege of membership at the bar. To
* that doctrine this-court must adhere.
Accordingly, the petitioner’s motion to confirm the Ref-
eree’s report is granted; the Referee’s findings are con-
firmed; and, on the basis of his unchallenged finding that
respondent refused to testify and to produce his records, the
respondent is disbarred and his name directed to be struck
from the roll of attorneys and counselors at law in the
State of New York, effective October 1, 1965.
Cuamt, Acting P.J.. Brennan, Huu, Horxims and
Bsnzamin, JJ., concur. ä e
July 19, 1965.
fo
*
APPENDIX ©
Copy-of Minute furnished by Clerk of the Court of Appeals
of the State of New York:
2 Ne. aii wtaqeh 65
In the Matter of Samus. Srvack, an Attorney.
Sotomon A. Kuen, Respondent,
Samuzn Srxvack, Appellant.
Order affirmed on the authority of Cohen v. Hurley (366
U.S. 117) and on the further ground that the Fifth Amend-
ment privilege does not apply to a demand, not for oral
testimony but that an attorney produce records required
by law to be kept by him (Davie ¥. United States, 308 US.
482; Shapiro v. United States (335 U.S. 1). No opinion.
All concur, Fuld, J. in the following memorandum: Al-
though I still adhere to the views I expressed in dissent in
Matter of Cohen, (7 N.Y. 2d 489, affd. sub nom Cohen v.
Hurley, 366 U.S. 117), I deem myself concluded by that
decision and, accordingly, concur for affirmance. (But cf.
Malloy v. Hogan, 378 U.S. 1).
*
*
bn
4
APPENDIX D
Stars or New Yor, m Cover or Appears
At a Court of Appeals for the State of New York, held at
Court of Appeals Hall in the City of Albany on the Sixth
day of January A D. 1966.
Present, Hon. Cuanzes S. 8 Chief Judge, presiding.
2 Mo. No. 27
ms the Matter of Sanum. Sruvack, an Attorney,
Soromon A. Kiar, Respondent,
Samus. Srvack, Appellant.
A motion to amend dhe remittitur in the above cause
having heretofore been made upon the part of the appellant
herein and papers having been submitted thereon and due
. deliberation having been thereupon had, it is
Onperep, that the said motion be and the same hereby
is granted, the return of the remittitur requested and, when
returned, it will be amended by adding thereto the follow-
ing:
Upon the appeal herein there was presented and
necessarily upon a question under the Constitu-
tion of the United States, vis: Appellant contended that
his disbarment, hased upon his refusal to produce any
of the records specified in the subpoena duces tecum,
duly issued in a judicial inquiry into professional con-
duct, and based upon his prior refusal to answer any
‘questions. which might be asked relating thereto,
violated his constitutional privilege against self-inerim-
ination and his constitutional right to due process of
law. ‘The Court of Appeals held there was no viola-
tion of any of the appellant’s constitutional rights.
Anp the Appellate Division of the Supreme Court, Second
Judicial Department, hereby is requested to direct its Clerk
to return said remittitur to this Court for amendment ac-
cordingly.
A copy
(Sean) R
Deputy Clerk.
—— — *
‘APPENDIX E
United States Constitution, Amendment V
No person. . . shall be compelled in any crimjnal ease
r 5
Nei Constitution, Amendment XIV
Section 1... . nor shall any State deprive any person
of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal
protection of the laws.
Special Rules Regulating the Conduct of Attorneys and
Counselors at Law in the Second Judicial Department
Rutz V
Preservation of Records of Actions, Claims and Proceed-
ings. In every action, claim and proceeding of the nature
described in rule three, attorneys for all the parties shall
preserve the pleadings, records and other papers pertaining
to such action, claim and proceeding, and also all data and
memoranda of the disposition thereof, for the period of at
least five years after any settlement or satisfaction of the
action, claim or proceeding or judgment or final order
thereon, or after the dismissal or discontinuance of any
action or proceeding brought.
37
APPENDIX F
(R. 118-19)
Q. Mr. len ns ee
suant to the subpoena of June 2, 1958, produce the day book
requested therein. Just to speed the process, if your answer
is the same, with permission of the Court, would you say
the same?
A. Yes.
Q. Is your answer the same?
A. It is.
Q. Would you produce, pursuant to that subpoena, cash
receipts book?
A. The answer is the same.
Q. Cash disbursements book?
A. The answer is the same.
Q. Check book stubs?
A. The answer is the same.
Q. Petty cash book?
A. The answer is the same.
Q. Petty cash vouchers?
A. The answer is the same.
Q. General ledger and general journal t 8
A. The answer is the same.
Q. Canceled checks, bank statements, duplicate deposi-
tion slips of regular and checking accounts, open and closed?
A. The answer is the same.
Q. Passbooks and evidence of accounts other than check-
ing accounts, with all depositories, such as savings banks,
savings and loan A eredit unions,
etc.?
A. The .
Q. Record of all loans made from financial institutions
and others, open and closed?
A. The answer is the same.
Q. Payroll 5 (A) e . (8)
Social Security and withholding tax
:
: | 5
17 cy
+
3: 7
i
3 at
fe, te ota: .
1121 *
44446
25
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.