Petitioners Brief — Spevack v. Klein

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SUPREME COURT OF THE U

_ OCTOBER TERM, 1966

No. 62

SAMUEL SPEVACK, Petitioner,

3 v.

SOLOMON A. KLEIN, Respondent.

* —

. *

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF THE STATE

OF NEW YORK 5

N 0

33 Washington, D. C. 20005

Of Counsel: | N

Bunxann SNA * N

235 East Street ; :

New York 17, New York . . hae hs

7584 Fifteenth Street, N. W. 885

Washington D. C. 200 8

BLANK |

PAGE

J triediction „cc 8

Statement FFV

Summary of Argumennnththk

1 GGG COO Be ee ee Lt ö

I. The Disbarment of Petitioner Was a Vio-

lation of the Specific Gr ~anties of the Fifth

A. The Reliance of the Courts Below Upon

Cohen v. Hurley Was Misplaced.......

B. The Standard of the Fifth Amendment

Prohibits Imposing the Penalty of Dis-

barment as a Consequence of Invoking

the Privilege Against Self-Incrimination

C. Petitioner’s Disbarment Was Imposed as

a Consequence of Invoking the Privilege

II. The Disbarment of Petitioner Was Arbi-

trary and Discriminatory State Action in

Violation of the Due Process and Equal

Protection Clauses of the Fourteenth

— O08 20h Ste Ls S168 Saw e -3 Seen a

B. The Disbarment of Petitioner Under the

min reg orgs of This Case Was Arbi-

oe + Bs. Aj Per CSIR 3

eee Other

ii —

III. The Invalidity of Petitioner's Disbarment

Is Not Affected by the State’s Rule Requir-

ing Attorneys to Keep Records. 42

A. The Judgment May Not Be Affirmed

Upon the Sole Ground That the Privi-

lege Did Not Apply to Petitioner’s

og bey aye ee aera tas ange eoeees ee 42

B. The Required Records Doctrine Is an

Unwarranted Limitation Upon the Scope

of the Privilege Against Self-Incrimina-

„ Assuming Requir

Retains Some Validity, the Doctrine Does

Not Apply to the Records Involved in

UI ce ris ee as ca 54

D. Affirmance of the Judgment on the

Ground That Petitioner Had No Privi-

lege to Refuse to Produce His Records

Would Be a Denial of Due Process of

„% gS eS AAA ˙ . 56

„ 5. 268 Ss ea . 58

CrraTions

Cases: 25

Adamson v. California, 332 U.S. 46. 15, 31

Albertson v. SACB, 382 U.S. 70 13, 52

Anonymous v. Arkwright, 7 App. Div. 2d 874,

181 N.Y.S. 2d 784, leave for appeal eee

5 N.Y. 2d 710, cert. denied, 359 U.S. 1009 6

. Anonymous v. Baker, 360 U.S. 287. 4, 28

Aptheker v. Secretary of State, 378 U.S. 500. 54

Barenblatt v. United States, 360 U.S. 109 30, 38

Bates v. Little Rock, 361 U.S. 5188. 34

ees Beard v. United States, 222 F. 2d 84 (4th Cir.),

cert. denied, 350 U.S. 84.

_ Beilan v. Board of Education, 357 U.S. 399 32

Boyd v. United States, 116 U.S. 616........... passim

Bram v. United States, 168 U.S. 532. 11, 18, 24

1 *

Brophy v. Industrial Acc. Commission, 46 Cal.

App. 2d 278, 115 P. 2d 885 (D. O. App.)

Brown v. Mississippi, 297 U.S. 278. 19

Brown v. Walker, 161 U.S. 591................ 1

Cammer v. United States, 350 U.S. 399

Chambers v. Florida, 300. U.S. 227 5 Sees:

Cohen v. Hurley, 366 U.S. 117, affirming 7 N.Y.

2d 488, 166 N. B. 2d 672

Communist Party v. Control Board, 367 U.S. 5

Costello v. United States, No. 41, OT 1966, cert.

granted, 383 US. 94122.

Counselman v. — 142 U.S. 547.

Cummings v. Missouri, 4 Wall. 277.

Curcio v. United States, 354 U.S. 11

Davis v. United States, 328 U.S. 5822 45,

Entick v. Carrington, 19 How. St. Tr. 1029, 1073.

1074 (Ct. of Common Pleas )

Escobedo v. Nlinois, 378 U.S. 47.

Ea Parte Garland, 4 Wall. 338838.

Ez Parte Robinson, 19 Wall. 5055.

Eæ Parte Pall, 107 — UAA

58888

zy |

SR ESS B8888 88888 BF

Gehen v . e 609 aW passim

Grunewald v. United States, 853 U.S. 391 ae

Hale v. Henkel, 201 U.S. 423.

Haynes v. Washington, 373 US. BOB. EL 17,19,

Hoffman v. United States, 341 U.S. 479 17,

Hubner v. Tucker, 245 F. 2d 35 (9th Gir.) ..... ;

In re Dunn, 85 Neb. 606, 124 N. W. 10

In re Fenn, 235 Mo. App. 24, 128 S. W. 2d 657

Dr <a

In re Grae, 282 N.Y. 428, 26 N. E. 24 968 a8 e

Ia re Hanson, 134 Kan. 168, 5 P. 2d 1088

In re Holland, 377 Tl. 346, 36 N. E. 2d 548 Ant

In re Sawyer, 360 U. S. 622

28888 SSN 888

In re Solovei, 276 N.Y. 647, 12 N. E. 2d 802

In re The Integration Rule of the Florida Bar,

— Fla. —, 108 So. 2d 878.2... .

Jackson v. Denno, 878 U.S. WWew ..

Kennedy v. Mendoza-Martinez, 372 U.S. 144.

Kern-Limerick, Inc. v. Scurlock, 347 U.S. 110.

Kimm v. Rosenberg, 968 US. 0.

Knapp v. Schweiteer, 357 U.S. 37am... .....

S8 8888 4

Tonigsberg v. State Bar, 353 U.S. 252 aay 29, 38, 40

Konigsberg v. State Bar, 366 U.S. 36. * 38

Lerner v. Casey, 357 U.S. 468 n 32

Lewis v. United States, 348 U.S. 4199. 49

Malloy v. Hogan, 378 U.S. 1. passim

McCarthy v. Arndstein, 262 U.S. 355, 266 U.S. 34 17

McLaughlin v. Florida, 379 U.S. 184........... er

Miranda v. Arisona, 384 US. 3

Murphy v. Waterfront Comm n, 378 U.S. 52. 30.32 32, 40 40

NAACP v. Alabama, 377 U.S. 288............. 36, 56

NAACP v. Button, 371 U.S. 415............ 33-34, 40

Napue v. Illinois, 360 U.S. 264................ 27

Nelson v. Los Angeles County, 362 U.S.1...... 32, 39

New York Times Co. v. Sullivan, 376 U.S. 254. . 41

People ex rel. Karlin v. Culkin, 248 N.Y. 465, 471,

We ae AT: i ek EE oer es 33

People ex rel. Ferguson v. Reardon, 197 N.Y.

r »A AS 49, 57

Plymouth Sedan v. Pennsylvania, 380 U. S. 693. . 22

Quinn v. United States, 349 U.S. 155. 16, 17, 21

Railroad Trainmen v. Virginia Bar, 377 U.S. 1 33

Raley v. Ohio, 360 U.S. 423. 13, 16, 43, 57, 58

Rogers v. United States, 340 U.S. 367.......... 48

Rich v. Campbell, reported sub nom. United

States v. Collins, 25 Fed. Cas. 545 (Cet. Ct.,

. ESS SR AE A eh. 37. 23

Russell v. United States, 306 F. 2d 402 (9th Cir.) 47

Schmerber v. California, 34 U.S. L. Week 4586

r AA 51

Sckwure v. Board of Law Eraminers, 353 U.S.

OME. Sp ss eke ĩ 29, 34

INDEX *

Securities d Exchange Commission v. Olsen, 854

FF, 20: 308; (90: Cie) 5 oe ae a ee. 47

Shapiro v. United States, 335 U.S.1.......... passim

Shelton v. Tucker, 364 U.S. 479. 2 54

Slochower v. Board of Education, 350 U.S. 551. passim

Smith v. United States, 337 U.S. 1377 17

Speiser v. Randall, 357 U.S. 513............ 22, 23, 38

Steinberg v. United States, 143 Ct. Cl. 1, 163 F.

Bans G00. re es eI F 23

Stephens v. Hill, 10 Mee. & W. 88. .

Stevens v. Marks, 383 U.S. 234. 16, 26, 49, 58

Stromberg v. California, 283 U.S. 359. 43

Takahashi v. Fish Comm u, 334 U.S. 410 40

Tehan v. Shott, 382 U.S. 400 17

Thomas v. Collins, 323 U.S. 51. 12, 43

Truam v. Raich, 239 U.S. 333. 40

Twining v. Veih Jersey, 211 U.S. 6. 15,31

Ullmann v. United States, 350 U.S. 422 17, 19

United States v. Ansani, 138 F. Supp. 451 (N. D.

JJJVVVVVVTVTVVTVTVTTTT ee 47

United States v. Brown, 381 U.S. 47.

United States v. Clancy, 276 F. 2d 617 (7th Cir.),

reversed on other grounds, 365 U.S. 312 47

United States v. Kahriger, 345 U.S. 22 49

United States v. Lovett, 328 U.S. 33 19, 20

United States v. Remolif, 227 F. Supp. 420 (D.

Nr.). 3 47

United States v. Silverstein, 314 F. 2d 789 (2d

Cir.), cert. denied, 374 U So PIV, 54

United States v. White, 322 U.S. 4. 18, 54

Wan v. United States, 266 U.S. 1 17

Wieman v. Updegraff, 344 U.S. 133. 12, 29, 35

Williams v. North Carolina, 317 U.S. 287 43

Willner v. Committee on Character, 373 U.S. 96 37

Wilson v. United States, 221 U.S. 361 45, 46, 54

Statutes:

4 . . Lage

An Act to Amend the Customs-Revenue Laws

and to Repeal Moieties, 18 Stat. 186-191:

tee Bs OS aa cd Ee ais 51

rene Gs neces 51

err e. RAGA pti 51

Article 1, Section 6 of the New York State Con-

stitution Gk te C.. ES Sie. «5's oad 7

United States Constitution |

Article I, Sections 9 and 10............... 19, 20

Fourth Amendment 7, 22

Fifth Amendment passim

Fourteenth Amendment passim

- Emergency Price Control Act, 56 Stat. 3 44

Judiciary Act of 17899. 21

Miscellaneous:

Brief for the United States in Shapiro v. United

Z 53, 55

Comment, 9 Stan. L. Rev. 375 (1957) 48, 54

er oh Taæ Records, the Fifth Amendment, and

Records Doctrine, 9 St. Louis

1 J. 502, 507-508 (1965) 47, 48

Fortas, The Fifth Amendment: Nemo Tenetur

br Prodere Seine 25 Cleve. B. A.J. 91, 98-99,

ba wr MOSER). ani r 41

Griswold, The Fifth Amendment Today,7 (1955) 29

“Meltzer, Required Records, the McCarran Act,

and the Privilege Against Self-Incrimination,

158 U. Chi. L. Rev. 687 (1951) 48

Note, Quasi-Public Records and Self-Incrimina-

tion, 47 Colum. L. Rev. 838 (1947) Ae 44

Note, Required Information and the Privilege

Against Self-Incrimination, 65 Colum. L. Rev.

61 (166) -.. 3 48

vii

Page

Note, The Privilege to Practice Law versus the

Fifth Amendment Privilege to Remain Silent,

56 N.W.U.L. Rev. 644 (1961)...............

Note, Unconstitutional Conditions, 73 Harv. L.

CCC ee

Note, 68 Harv. L. Rev. 340 (1954)............ 48,

Ratner, Consequences of Exercising the Privi-

lege Against Self-Incrimination, 24 U. Chi. L.

Special Rule IV (G) (1961); Civil Practice An-

nual of New York 9-26 (19650)))))

31 Fed. Reg. 4000-4085 (March 8, 1966), revising

e ,, ee:

17 C. J. S. Contempt, 592 e

D oa .

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1966

No. 62

SAMUEL SPEVACK, Petitioner,

SOLOMON A. KLEIN, Respondent.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF THE STATE

b OF NEW YORE

BRIEF FOR PETITIONER =.

—

r *

The opinion of the Appellate Division of the Supreme

Court of New York is reported at 24 App. Div. 2d 653.

The memorandum order of the Court of Appeals, affirming

the order of the Appellate Division, is reported at 16

N.Y. 2d 1048, 213 N. E. 2d 457. The order of the Court of

res Getanee fn eo a ad

490, 214 N. B. 2d 373.

(2)

Jurisdiction

The judgment. of the Court of Appeals was entered 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 certiorari on or

before January 24, 1966. The petition was filed on January

24, 1966, and was granted on March 21, 1966. 382 U.S.

942. The jurisdiction of this Court rests on 28 U.S.C.

1257 (3).

Questions Presented

1. Is 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, in violation of the self-

incrimination clause of the Fifth Amendment, as applied

to the States by the Fourteenth Amendment?

2. Assuming the Fifth Amendment standard does not of

itself preclude the disbarment of an attorney under such

circumstances, is the disbarment nonetheless arbitrary or

discriminatory action prohibited by the due process or

equal protection clauses of the Fourteenth Amendment?

3. May the protection of ‘the self-incrimination clause

. of the Fifth Amendment be removed from ‘the financial

records of an attorney by a broad State regulation requiring

that certain records be kept by attorneys?

The Fifth and Fourteenth Amendments to the Coustitu-

tion of the United States provide, in pertinent part, as

follows: |

Fifth Amendment

No person . . shall be compelled in any criminal

case to be a witness against himself... .”

Fourteenth Amendment

„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.“ ‘ °

Rule 5 of the Special Rules of the Second Department,

Appellate Division ofthe Supreme Court of the State of

New York Regulating; the Conduct of Attorneys and

Counselors at Law in the Second Judicial Department, pro-

vided as follows: a f

„Preservation of Records of Actions, Claims and

Proceedings. In every action, claim and proceeding of

the nature described in rule three [personal injury,

property damage or condemnation claims involving con-

tingent fee compensation], 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.“

Statement

In January 1957 the Appellate Division of the Supreme

Court of New York, Second Department, in response to a

petition of the Brooklyn Bar Association, ordered a Judicial

Inquiry into alleged unethical practices relating to the repre-

sentation of clients on a contingent-fee basis. The nature

Paps hasipeimper beer ge mpesaraipeeaierne tee

See Civil Pe Amina of Now York 9.2 1 55 1

in this Court's opinions in Anonymous v. Baker, 360 US.

287, and Cohen v. Hurley, 366 U.S. 117. Generally, as the

Beker and Cohen cases indicate, the Judicial Inquiry pro-

ceeded by serving subpoenas upon attorneys and other per-

sons requiring their testimony and/or production of records,

and examination of witnesses was conducted in secret and

with attendance of counsel permitted only at the discretion

of the presiding Justice.

For a number of years, the Second Department of the

Appellate Division has had special rules regulating the

conduct of attorneys who practice in personal injury, prop-

erty damage and certain other types of actions under con-

tingent fee arrangements. Among other things, the rules

require the filing by such attorneys of statements of retainer

setting forth the details of such arrangements“ and the

“Statements as to Retainers in Actions or Claims Arising from

Personal Injuries or Property Damage and in Condemnation or

preservation for a five-year period of ‘‘the pleadings,

records and other papers pertaining to such action |

and also all data and memoranda of the disposition there-

of .... [Rule 51 2

Petitioner has been an attorney in Kings County since

his admission to the bar in 1926, practicing primarily in

actions covered by the terms of the special rules. Pursuant

to those rules, during the years 1953 to 1959, petitioner

filed over 1000 statements of retainer (R. 12). On June

before the Judicial Inquiry and to produce records generally

described as pertaining to his business as an attorney but

representative, or by registered mail. Such statements may also be

filed by ordinary mail, provided the statements are accompanied by a

in blank at the time of ite execution” = = 8

„„ es Justice stated that there

were no charges against | 4), counsel for the Inquiry stated

in no finding of wrongdoing, but “if we do find anything that is improper

or anything that proves a point, then and only then do we offer I u

the subpoena was denied, Anonymous v. Arkwright, 7 App.

Div. 2d 874, 181 N. T. S. 2d 784, leave to 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. 26). The Presiding Justice had refused permission for

observers to be present, since the Inquiry was a ‘‘secret

investigation,’’ but he did grant the request of petitioner’s

counsel that he be permitted to remain during petition: 8

questioning (R. 22, 25).

Though petitioner was sworn as a witness, he advised the

Presiding Justice that, in view of possible tax or other

problems and in view of the Court's inability to grant

him immunity, he refused to produce his records or to an-

swer questions under a claim of the privilege against self-

incrimination (R. 29-32). The Presiding Justice stated his

opinion“ that petitioner had a perfect right to plead that

constitutional privilege’’ but called attention to the fact

that a test case was being prepared by the Inquiry on

the theory that such a plea, made in the context of this

Inquiry, might be indicative of such a lack of candor...

as to warrant disciplinary proceedings based upon that

ground alone [R. 30].’’ Therefore, the Presiding Justice

determined that no further proceedings would be held

in petitioner’s case until the final disposition of that test

case (R. 33-34).

_ The test case, Cohen v. Hurley, 366 U.S. 117, was decided

by this Court in April, 1961. In July of that year petitioner

wrote the Presiding Justice of the Inquiry that, in view of

the decision in Cohen, he wished to withdraw his claim of

privilege (R. 52). Shortly thereafter he retained new coun-

sel, and, after further adjournments of the hearing, he ap-

peared before the Inquiry, was recalled to the witness

the record, it is fair inference that petitioner was called before the

Inquiry ‘as a result ef his extensive practice, as was the case

W. :

stand and was asked if he did wish to withdraw his claim

of privilege, as indicated in his letter. Petitioner replied

that, upon the advice 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 State Constitution. He also stated his

reliance upon the standard of fundamental fairness of the

due process clause of the Fourteenth Amendment and upon

the equal protection clause of that Amendment. (R. 42-43).

In response to questions by the attorney for the Inquiry

as to the specific documents included in the subpoena, peti-

tioner persisted in his decision ‘‘not to produce any of the

records or to answer any questions in relation thereto

IR. 43].’’ Counsel for the Inquiry previously had stated

that he wished to proceed, ‘‘as we do in all cases, to have

[petitioner] come in, take the stand and produce [the

records], and we can then mark them for identification.

Then he can explain the absence of any other records. We

can go through the subpoena piecemeal with him IR. 361.“

Petitioner’s counsel advised counsel for the Inquiry, how-

ever, that he did not wish to place petitioner ‘‘in the posi-

tion that it may ever be urged that he opened the door by

answering these questions“ and that, unless he could be

assured that no such position would be taken by the Inquiry,

he would advise petitioner to answer no further questions

(R. 47). No JSC

was discontinued.

Ab sie s daring de Rears Pers ib Samide Te.

quiry did either the Presiding Justice or counsel for the

Inquiry contend that the privilege against self-inerimina-

cumstances of his claim, to answer questions or to produce

‘records. Counsel for the Inquiry did contend at the hear-

ing that petitioner’s decision to continue to rely upon the

privilege after having indicated that he would withdraw

that privilege was a lack of cooperation, but he did not

contend that petitioner had made any irrevocable waiver of

the privilege (R. 46). Counsel continued that the Inquiry

would initiate disciplinary proceedings against petitioner,

and that its position would be that petitioner’s claim of

privilege was a lack of cooperation in the same sense as

that of the attorney in the Cohen case, justifying the same

result—disbarment (R. 48). ;

After the close of the hearing, a petition for disciplinary

proceedings against petitioner was filed by respondent,

Solomon A. Lein,“ by direction of the Judicial Inquiry. The

petition (R. 410) alleged that this petitioner had been

guilty of misconduct in ten separate respects. Eight of

the charges were allegations that he had failed to comply

with certain court rules relating to filing of retainer state-

ments, that he had filed false pleadings, that he had com-

mingled clients’ funds with his own and that he had violated

the canons of ethics. The ninth charge was that apart from

ponements and making or causing to be made false. repre-

sentations; and the tenth charge was that he wus guilty of

misconduct in that ‘‘his refusal to answer questions and

the inberent duty and obligation of [petitioner].as.a mem-

C IR. 7.“ The. petition

5 The order of the te Division to institute

‘disciplinary proceedings against petitioner refers to only as

and answer (see R. 67-58) 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 (R. 13, 59). Petitioner was again

called to testify, and he again refused to answer questions

under a specific claim of all the federal constitutional pro-

visions upon which he had relied in the Judicial Inquiry

(R. 53-64).*

In his report, the referee found that respondent had not

proven the allegations in the ninth charge. Among his

findings were that there was no claim or evidence that

petitioner’s claim of privilege ‘‘was invoked more exten-

sively than reasonably required to protect him] against

incrimination”’ (R. 67) and that the Inquiry was neither mis-

led nor prejudiced by petitioner’s July 1961 letter indicating

his intention to withdraw his claim of privilege (R. 74-76).

As to the tenth charge, the referee found that petitioner

did refuse to answer questions and to produce records

under claims of constitutional privileges, federal and state,

but he made no finding as to whether the refusals were in

violation of petitioner’s duties as an attorney, since that

question was ‘‘inextricably bound up with the constitutional

issues raised by This] affirmative defense, and resolution

of those issues is not within my province IR. 79-80J.”? i

Respondent moved in the Appellate Division for oon.

re ny 75

- * : 5 * 72 conduct before re

, * R 5 LER 38 he" *

1 a >, » . ¥ — 5

* r 12 “bad Duin “ * 2

10 =

the sole issue to be the charge that petitioner ‘‘had refused

to produce his financial records and had refused to testify

before the justice presiding at said Judicial Inquiry [R.

84],’’ the court, relying,solely upon the Cohen case, held

that an attorney has ‘‘an “absolute right to invoke his consti-

tutional privilege against self-incrimination’’ but that when

he does so he fails in his inherent duty to the court to

divulge all pertinent information necessary to show his

character and fitness to remain a member of the Bar and

necessary to the proper administration of justice, and he

must, consequently, forfeit his -privilege of remaining’

a member of the bar [R. 84-85].’’ The Court in no sense

questioned either the applicability of the Fifth Amendment

to petitioner’s refusal to testify and to produce records or

his good faith in asserting the privilege, but it held squarely

that, if he elected to invoke the privilege, he could not con-

tinue to practice law (R. 85).

The Court of Appeals affirmed the judgment of the

Appellate 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 demand“

for the production of records required by law to be kept’’

by an attorney (R. 86). Judge Fuld concurred, stating that,

while he adhered to his views in dissent in Cohen, see 7

N. V. 2d 488, 498-502, 166 N.E. 2d 672, 677-80, he deemed

himself bound by that case. .

Upon motion by petitioner, the court subsequently

amended its remittitur, stating that petitioner’s claims of

violation of his federal privilege E. self-incrimination

1¹

and of his right to due process of law were necessarily

passed: upon (R. 90-91).

Summary of Argument

1. The principal reliance of the Court of Appeals and

the sole reliance of the Appellate Division in support of

their judgments was the decision in Cohen v. Hurley, 366

US, 117, affirming 7 N.Y. 2d 488, 166 N. E. 2d 672, which

held that disbarment of an attorney who refused, under a

claim of the State privilege against self-incrimination, to

"testify and to produce records before the Judicial Inquiry,

did not violate the standard of fundamental fairness of

the Fourteenth Amendment. We contend that reliance upon

Cohen was misplaced, since the Court’s decision in Malloy

v. Hogan, 378 U.S. 1, expressly repudiated the rationale

of Cohen and made clear that state action is limited by

the same standard of the self-incrimination clause of the

Fifth Amendment which restricts federal action. That

standard precludes the imposition of a penalty which makes

more costly, the exercise of the privil--» against self-in-

crimination, Griffin v. California, 380 U.S. 609, and dis-

qualification from the practice of one’s profession is just

such a proscribed penalty. And if disbarment in these cir-

cumstances is not a penalty within the meaning of the Fifth

Amendment, it is clearly a method of compulsion employed

by the State to extract incriminating evidence, and any

such compulsion is prohibited by the Fifth Amendment.

Bram v. United States, 168 U.S. 532.

2. Even if the threat of disbarment is not the kind of

compulsion that the federal and state governments may not

employ by virtue of the-specific prohibition of the Fifth

Amendment’s self-incrimination clause, this Court’s deci-

sion in Malloy establishes that the requirements of funda-

mental fairness imposed by the due process clause of the

—

. Fourteenth Amendment may no longer be determined with-

- out reference to the duty of a state to preserve the guaran-

ties of the Fifth Amendment. Thus, Cohen and other of

this Court’s decisions must be re-examined in light of the

individual’s right, now protected against state action, to

be free from compulsory self-incrimination. That vital in-

terest, weighed against the absence of any showing by

the State that its legitimate interest in maintaining the

standards of the bar cannot be protected by shouldering

its burden of independent investigation and proof of wrqng-

doing, compels the conclusion that the State’s imposition

upon attorneys of an election between relinquishment of

the privilegé against self-incrimination and disbarment is

arbitrary and capricious. See Slochower v. Board of Educa-

tion, 350 U.S. 551; Wieman v. Updegraff, 344 U.S. 183.

Similarly, the State’s recognition of the availability of

the privilege to petitioner as a citizen but its unavailability

to him as an attorney evidences a classification which is

not only arbitrary within the meaning of the due process

clause of the Fourteenth Améndment but also fatally dis-

criminatory within the meaning of that Amendment’s equal

protection clause.

3. No different conclusion results from the fact that the

State required attorneys to keep records pertaining to the

disposition of actions in which they represented clients

under contingent fee arrangements. Even if the ‘‘required

records doctrine established in Shapiro v. United States,

335 U.S. 1, were a valid limitation upon the scope of the

“privilege against self-incrimination and were applicable to

the record requirement involved in this case, petitioner’s

disbarment, based only in part on that doctrine and in part

dn the invalid rationale of Cohen, could not stand. See

Thomas v. Collins, 323 U.S. 516, 519. But in ax} event the

Shapiro doctrine that the government, state or federal, may

0 13

Sod

remove the applicability of the privilege to the papers of an

individual merely by enacting a requirement that such

papers be kept is wholly invalid, as an unwarranted limita-

tion, upon the scope of the privilege as earlier determined

in Boyd v. United States, 116 U.S. 616, as inconsistent with

the recent decision in Albertson v. SACB, 382 U.S. 70, and

as violative of this Court’s repeated injunctions that the

privilege be accorded a liberal construction. See eg. *

Miranda v. Arizona, 384 U.S. 436, 461.

Even assuming that the scope of the privilege can be

limited to an extent through state-imposed record-keeping

requirements, the policy of the privilege requires at least

that such limitations be no more extensive than clearly re-

quired in order to protect a valid state interest which can-

not adequately be protected through any means other than

a limitation upon the scope of the privilege. No such show-

ing has been made in this case and, therefore, the required

records doctrine is inapplicable. Further even if some

limitation of the scope of the privilege were necessary to

effect the State’s interest here, the State has removed the

privilege from a class of documents much broader than that

involved in Shapiro, so that that case does not support the

State’s unduly broad intrusion into the privacy guaranteed

by the Fifth Amendment privilege.

Finally, whatever may be the validity and scope of the

required records doctrine, its application to this case, where

the availability of the privilege was recognized by the Judi-

cial Inquiry and the Appellate Division and was only be-

latedly questioned by apenas is inconsistent with res

v. Ohio, 360 U.S. 423.

eee

PR LOLOL LEA O E. eee ENT LEE IGT LE

L The Disbarment of Petitioner Was a Violation of the

Spoeciflo Guaranties of the Fifth Amendment.

4 The Reliance of the Courts Below Upon Cohen v. Hurley

ake was Misplaced.

The opinion of the Appellate Division relied solely upon

the decision in Cohen v. Hurley, and the Court of Appeals

also relied upon that case. In Cohen, this Court upheld the

disbarment of an attorney for his refusal to testify and to

_ produce records before the same Judicial Inquiry involved

in this case, holding that it was neither arbitrary nor dis-

criminatory for the State to disbar an attorney who, by

claiming his State constitutional privilege against self-

incrimination, failed adequately to ‘‘cooperate’’ with the

Inquiry. The Court passed only-upon the contention that it

was fundamentally unfair, and, hence in violation of the

Fourteenth Amendment, to foree an attorney to elect be-

tween relinquishment of the privilege and disbarment. In

rejecting that contention the Court relied upon the premise

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 the 9 had not pre-

served any Fifth Amendment claim and that, in any event,

no Fifth Amendment privilege was applicable in a State

proceeding. Thus, under the analysis of the majority in

Cohen, if any ‘constitutional privilege against self.

incrimination’ has here been made a phrase without

reality it can only have been a state privilege which

this Court does not have jurisdiction to pro . Id., at

128, n. 8. But see id., at 131-166 (dissenting e of

Black, Douglas and Brennan, J. J.). 5

We contend that the Court’s due process analysis in

Cohen should be re-examined and rejected, see pp. 29-39,

infra, but, in any event, that analysis is inapplicable: to

petitioner's claim under the Fifth Amendment. The Cohen

premise that the Fifth Amendment prohibition against eom-

pulsory self-incrimination does not limit state action was

rejected in Malloy v. Hogan, 378 U.S. 1, 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.) Malloy explicitly 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,’’ hold-

ing that [if Cohen v. Hurley... and Adamson v. Cali-

fornia”. . . suggest such an application of the privi-

lege against self-incrimination, that suggestion cannot.

survive recognition of the degree to which the Twining

view of the privilege has been eroded.’? Id., at 10-11.

Thus the Court is faced here not with a claim limited to a

State privilege but with petitioner’s claim, timely presented

and preserved at all stages of this case, that the State’s

action in disbarring him for his refusal to relinquish his

Fifth Amendment privilege is in violation of the guaranties -

of that privilege, as secured against state action 2 the

Fourteenth Amendment.

B. The Standard of the Fifth Amendment Prohibits I mpos-

ing the Penalty of Disbarment as a Consequence of

Invoking the Privilege Against Self-Incrimination.

As a preliminary matter, we note that, throughout the

Proceedings in this case, the parties and the courts have

focused not upon the question of whether the privilege ©

was availabe to petitioner but rather upon the question

of the-sanction—é.e., disbarment—which might or might

not constitutionally be imposed in consequence of petition-

er's refusal to relinquish a valid claim of the privilege.

— —

— aentinenasuePaneumatee

The Court of Appeals placed partial reliance upon the

_ ‘inapplicability of the privilege to.so-called required records,

‘an aspect of this case that we discuss at pp. 42-58, infra,

“but its primary reliance was upon Cohen, which upheld

‘disbarment! based upon a concededly valid claim of the

State privilege. The Appellate Division,-the referee, and

the Presiding Justice all accepted that petitioner’s claim

of federal privilege was valid and in good faith both as to

his refusal to testify and his refusal to produce records,

‘and no challenge was made in the Judicial Inquiry to the

method by which or the circumstances in which petitioner

invoked the privilege. In his Brief in Opposition to the

Petition for Certiorari, however, respondent contended for

the first time that petitioner’s refusal to answer questions

was a defective ‘“‘blanket refusal.’’ Brief in Opposition,

‘pp. 10-11. That challenge, even if it were valid, should

have been made at the time that petitioner invoked the

privilege before the Judicial Inquiry, and may not be relied

upon at this late stage. See Stevens v. Marks, 383 U.S.

234; Raley v. Ohio, 360 U.S. 423; Quinn v. United States,

349 U.S. 155.

Thus, the question appropriately before the Court is

whether the State could disbar petitioner for his re

to relinquish a valid claim of the privilege

below failed to apply, is clear from Malloy—the

not infringe the right of a person to remain si

he chooses to speak in the unfettered exercise Sf his own

will; and to suffer no penalty ...for such silence.

878 U.S., at 8. (Emphasis added.) More recently the

‘Court reaffirmed that standard in Griffin v. California, 380

JS. 609, 614, holding that comment by a prosecutor upon

_ ‘the refusal to testify is repugnant to the Fifth Amendment,

. gitiee lilt is a penalty imposed by courts for exercising a

_ cunstitational privilege. : It cuts down on the privilege by

making its assertion eostly,’’* That broad protection of

the privilege has been recognized at least since Boyd v.

United States, 116 U.S. 616, 634-5, and has been reaffirmed

repeatedly by this Court. See, e. g., Miranda v. Arizona,

2384 U.S. 436, 461; Hoffman v. United States, 341 U.S. 479;

Counselman v. Hitchcock, 142 U.S. 547.

The bar against governmental action imposed by the

Fifth Amendment has consisted of two facets: it has

prevented the use of compulsion to elicit inariminating

statements or documents in any proceeding, civil or erimi-

nal, and in any forum, judicial, investigative or administra-

tive, see e. g., Boyd v. United States, supra; Counselman v.

Hitchcock, supra; McCarthy v. Arndsteim, 262 U.S. 355,

266 U.S. 34; Smith v. United States, 337 U.S. 137; Quinn v.

United States, 349 U.S. 155; and it has also prevented the

use as evidence in a criminal proceeding of statements by

or documents of the accused obtained through compulsion

or stealth, see e. g., Gouled v. United States, 255 U.S. 298;

Wan v. United States, 266 U.S. 1; cf. Haynes v. Washing-

ton, 373 U.S. 503. Only to a limited extent, however, have

the opinions of this Court focused upon the type of compul-

sion, if any, that may be employed to persuade a person

to relinquish his privilege.

It should be emphasized that the question presented here

is not whether petitioner had a privilege to refuse to dis-

close information which could not lead to ‘‘incrimination”’

but which could lead to disbarment, cf. Ulimann v. United

States, 350 U.S. 422, but rather whether the State could

nee ‘the threat of <disharmant to couspel ‘gatitionan to ‘tlie,

„ *

—

2 ne

18 25 ;

close information which might tend to incriminate him,

and, failing in its purpose, use the sanction of disbarment

as a penalty for petitioner’s refusal to relinquish the privi-

lege. We do contend that, under this Court’s decisions,

disbarment is a penalty indistinguishable from the penalty

imposed upon conviction of crime, so that the could

f not compel petitioner to disclose information which might

lead to disbarment, and a fortiori it cannot disbar him for

refusal to disclose the information, since its action would

amount to adjudication of criminal guilt from invocation

of the * ee if disbarment is not- inerimination,

so that one may not refuse to disclose information which

might lead only to disbarment, it does not follow that the

State may impose it as a sanction for refusal to disclose

information which is protected by the privilege. The

question then is whether imposition or threat of disbarment

is compulsion which may not be used by the State as a

means for inhibiting exercise of the privil

The Malloy and Griffin cases, as ee, above, in-

dicate that the Fifth Amendment should be construed

liberally and that no form of governmental coercion, direct

or indirect, that serves to impair the exercise of the privi-

lege may stand against the bar of the Fifth Amendment.

Statements if this Court’s opinions may be found, how-

ever, suggesting that only certain types of compulsion are

forbidden. In United States v. White, 322 U.S. 694, 698,

for example, it was said that the privilege was designed

to prevent the use of legal proéess to force from the lips

of the accused individual the evidence necessary to convict

him... r. P

— dissenting in Grifts ; California, 360 0:8. 600,

stated that historieally the came into being because a person

dediine to answer an question only “on pain of incar-

’ 19

Walker, 161 US. 591; to Ullmann v. United: States, supra,

may be read as forbidding the Government only from im-

posing something akin to criminal punishment—e.g., fine

or imprisonment for contempt—as a means for compelling

testimony or the production of records, although that con-

clusion by no means necessarily follows from those cases.

While they held that a witness may be required to testify

if he is accorded immunity from criminal prosecution that

is as extensive as the protection of the privilege that is

being replaced, they did not hold and it has never been

held that the Government is free to deny immunity and

also to impose a variety of non-criminal of quasi-criminal

disabilities upon a person who exercises the privilege.

Even if the Fifth Amendment were to be given a narrow,

restrictive reading, and held to forbid the imposition

only of sanctions penal in nature upon a person who

asserts the privilege, the decisions of this Court establish

that forfeiture of an attorney’s right to earn a livelihood

in his profession must be regarded as such a prohibited

sanction. While most of these decisions involve the prohi-

bitions of Article I, Sections 9 and 10, against bills of

attainder, the sanction prohibited by those provisions is

the legislative infliction of punishment without a judicial

trial. United States v. Lovett, 328 U.S. 303, 315. If the

Fifth Amendment is to be interpreted to forbid only punish-

ment criminal in nature as the means of éxtracting in-

criminating evidence there is no apparent reason why the

definition of punishment under the Fifth Amendment

25 Whatever may have beon the forms of sompalsion aguinst whieli the

psychological compulsion.

Capes an e e tedadaend tn invewe %, Amoniaaee ant AEA.

278; Chambers v. Florida, 309 U.S. ee ee ee

503; and Miranda v. ee er

———ů— ee

— 1

20 5

Should not be at least as broad as the definition of .punish-

ment for purposes of Article I, Sections 9 and 10. :

In e Parte Garland, 4 Wall. 338, 377, this Court held

invalid as a bill of attainder a statute which denied an

attorney the right to practice, stating that exelusion 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 conduct.’ In Cummings v.

Missouri; 4 Wall. 277, provisions of the Missouri Consti-

tution were held invalid as a bill of attainder and ex post

facto law because they produce the same result [as crimi-

nal statutes} . .. by depriving such persons of the right to

hold certain offices and trusts, and to pursue their ordinary

and regular avocations. This deprivation is punishment.

.. Id., at 827, 8

The earlier bill of attainder cases involved legislative

declarations of criminal guilt accompanied by provision

for punishment, see United States v. Lovett, 328 U.S. 303,

821-322 (concurring opinion of Frankfurter, J.), but the

Court in the Lovett case held that the formality of such

# pronouncement of criminal guilt was not an essential

element of unconstitutionality. There the Court held un-

constitutional a federal statute which prohibited the

further compensation of named government employees.

Holding that ‘the permanent proscription from any

. 21

of à most severe type, id., at 316, the Court continued

that “(t]he fact that the punishment is inflicted through

the instrumentality of an Act specifically eutting off the

pay of certain named individuals found guilty of dis-

loyalty, makes it no less galling or effective than if it had

been done by an Act which designated the conduct as

eriminal. “ Ibid. Under the same reasoning, the disbar-

ment of petitioner in this case is no less effective a punish-

ment than if the courts below had held him in contempt

for refusing to relinquish the privilege, which they clearly

could not do, see Quinn v. United States, 349 U.S. 155, and

then disbarred him as punishment for that contempt." “

It is, of course, not controlling whether the State labels

either the sangtion or the proteeding in which it is im-

posed ‘‘criminal’’ or civil.“ In Boyd v. United States,

116 U.S. 616, the Court held unconstitutional a federal

statute providing for compulsory production of documents

which by its terms applied to suits and proceedings

other than criminal,’’ 18 Stat: 187, quoted at p. 51, n. 22,

infra, and the proceeding in Boyd was a civil forfeiture

action against property, to which Boyd was a party only

because he entered a claim for the property. The statute

struck down in Boyd offered an election between produo-

tion of the document and forfeiture of the 85 cases of

law from being compelled to give evidence that tends to

cs poniahment for contempt hus ben applied in the ate

er erect S. Contempt, § 92; In re Dunn, 85 Neb. 006, 124

N. w. 120; In ve Henson, 134 Kan. 5 P. 2d 1088. As for federal conrts,

in Ez Parte Robinson, 19 Wall. 5 this Court issued en mandamus order-

789 negated all other Ta ike toa oe

including disbarment. But of, Gelder v. Haygood, 1 (Cet. Ct.

— N

lg iol shal

briminate him, or to subject his property to forfeiture.’’

Id. at 538. Thus the Court found the sanction to be within

the spirit!“ though not the ‘‘literal terms of both the

Fourth and Fifth Amendments, id., at 633, since ‘‘ proceed-

ings instituted for the purpose of declaring forfeiture of

a man’s property by reason of offenses committed by him,

though they may be civil in form, are in their nature

oriminal. Id., at 634. Compare Plymouth Sedan v. Penn-

sylvania, 380 U.S. 693, 701, where the Court applied the

Fourth Amendment’s exclusionary rule to a proceeding for

' forfeiture of an automobile, noting that the forfeiture of a

$1,000 automobile was an even greater punishment' than

the maximum penalty of a $500.fine that could have been

imposed upon the owner in a criminal proceeding.

Finally, the punitive character of petitioner's disbar-

ment would not be altered by any argument of the State

that its purpose was not vindictive but only preventive—

é.e., to safeguard the bar and the public from whatever

harm might be caused in the future by an attorney so lack-

ing in candor and frankness that he claimed the privilege

against. self-incrimination. The Court only recently re-

jected just such an argument in United States v. Brown,

381 U.S. 437. In holding unconstitutional as a bill of at-

tainder federal statute which disqualified members of

the Party from holding union offices, the court

in Brown that ‘‘[i]t would be archaic to limit the

definition a ‘punishment’ to ‘retribution.’ Punishment

serves several purposes: retributive, rehabilitative, de-

terrent—and preventive. One of the reasons society im-

prisons those convicted of crimes is to keep them from

‘inflicting future harm, but that does not make imprison-

‘ment any the less punishment.’’ Id., at 458.

» Disbarment, then, clearly can be regarded as punish-

- ment criminal in nature, just as can other sanctions apart

from fine or imprisonment. In Speiser v. Randall, 357

U.S. 513, 518, for example, the Court held that Ito deny

an exemption [from property taxes] to claimants who en-

gage in certain forms of speech is in effect to penalize them

for such speech. Its deterrent effect is the same as if the

Stille were to fine them for this speech. See, also Kennedy

v. Mendoza-Martinez, 372 U.S. 144, 163-184; Steinberg v.

United States, 143 Ct. CL 1, 163 F. Supp. 590; see generally,

Ratner, Consequences of Exercising the Privilege Against

Self-Incrimination, 24 U. Chi. L. Rev. 472 (1957). Since the

State could not constitutionally require petitioner to disclose

information which could result in the imposition of the

penalty of disbarment, it could not constitutionally impose

that penalty upon him solely because he refused to relin-

quish his privilege.

That a broad meaning must be given to the term, “‘crimi-

nal,’’ as it is used in the Fifth Amendment ‘was established

in the opinion of Mr. Justice Bradley for the Court in Boyd.

That opinion should be considered in light of his earlier

opinion as Circuit Justice in Rich v. Campbell, reported

sub nom. United States v. Collins, 25 Fed. Cas. 545; 549-550

(Cet. Ct., S.D. Ga.), in which a United States Marshal was

called as a witness in connection with a ‘party’s challenge

that jurors were improperly selected by the court’s =—

of whom the Marshal was one. ‘The court

: ‘refused to compel him to testify,. fen. tne tollawing

reasons: Where a charge of misconduct is made

against an officer, whether-amounting to an indictable

Nee

might furnish grounds for his removal or .impeach-

——— — ngnieet biantelé,

To compel him te be so would infringe the spirit, if

not the letter, of the fifth amendment to the. constitu-

tion of the United States, Which expressly declares

that no person shall be compeljed, in any ¢riminal

——]— — —U——.m —

I An inquisitorial

, @xamination, under oath, of a party charged with an

offense, is repugnant to the principles of personal

' Liberty, which are embodied in every fibre of the

. .-@otmmen law.... If the party stands upon his rights,

F am tmpljeation, however unjustifiable, that

there is some good reason (unfavorable to him) for

his refusal to be examined. Such an implication

+5 ought in wo case to exist. The immunity is founded

on principles of public policy and a regard to the just

’ liberties of every citizen; and, when claimed, ought to

be regarded and claimed as a fundamental right which

eninet be properly assailed.’’ (Emphasis added.)

That is the view of the fundamental character of the privi-

lege against self-incrimination which found its way into

Boyd, and that is the view of the privilege which we von-

tend should apply in according the privilege ‘‘liberal, con-

eee

Haff man v. United States, 341 U.S. 479, 486. i

It is, however, unnecessary to reach the question of

whether disbarment .is equivalent to incrimination within

the: meaning of the Fifth Amendment. This Court's de-

cisions demonstrate, that the threat of fine or imprisonment

or its equivalent is not the only form of compulsion which

the government muy nbt employ to elicit information

protected by the privilege, Only last term, in Miranda

v. Arizona; 348 U.S. 488, this Court reaffirmed the teaching

of Bram v. United States; 168 U.S. 532, that it is

traction of ineriminating evidence by the @retcise of any

improper influence that is forbidden by the Fifth Amend-

ment: The Bram opinion explained that since the common

la «principle holding that one accused sould ‘not be

compelled to testify against himself, was in its ‘edsence

sompréhensive: enough: to erdlude all manifestations of

compulsion, whether arising from torture or moral causes,

the rule formulating the principle with logical accuracy,

came to be so stated as to embrace all cases of compulsion

which were covered by the doctrine. And it was this

doctrine which, while in England was a mere rule of

evidence, became clothed in this country with the impreg-

nability of a constitutional enactment.’’ Id., at 547-48, 545.

While Bram and Miranda involve the second facet of

the Fifth Amendment’s prohibitions, i in that the sanction

there imposed was the suppression of evidence obtained

by unlawful compulsion, those cases held that the means

employed to obtain such evidence were in violation of

the Fifth Amendment. Since persistent questioning of an

accused, in thé absence of counsel and without adequate

warning of his right to remain silent, can hardly be

characterized as criminal punishment, it is evident that

at least some forms of compulsion other than criminal

punishment are denied the government. Similarly, com

ent by u Proctor tn u iel Weber ing W the

the refusal of an accased to testify is not in itself criminal

punishment but it is nonetheless prohibited by the Fifth

Amendment. Griffin v. California, 380 U.S. 609.

If the Court should accept our contention that the forms

of compulsion forbidden by the Fifth Amendment are not

limited to penal sanctions but should draw the line some-

where between the prohibition of any Compulsion und the

prohibition of only the most severe kinds of compulsion,

there can be little question as to the side .

Which’ this case would fall. ‘The ‘bat J ‘

decree of disbarment inflicts uy upon an

—

that a person may be required to elect between relinquish-

ment of the privilege and some comparatively mild form

of governmental compulsion, the governmental imposition

of a choice between disbarment and relinquishment of the

privilege: cannot be countenanced.

C. Petitioner’s Disbarment was Imposed as a Consequence

of Invoking the Privilege.

The Appellate Division, apparently in an attempt to

avoid the decision in Slochower v. Board of Education,

350 U.S. 551, that a statute which ‘‘operates to discharge

every city employee who invokes the Fifth Amendment

is unconstitutional, 350 U.S., at 558, reiterated the language

from its opinion in Cohen that the basis for disbarment

was not petitioner’s invocation of the privilege but rather

his deliberate refusal ‘‘‘to cooperate with the court

[R. 85.“ The opinion continued, however, asefollows:

„Under the circumstances, this court has no alterna-

tive other than to disbar the [petitioner]. 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. Te that doctrine this court

must adhere [R. 85]. ”

Thus, . the court destroyed its. own n attempt to rationalize

r pone a copaprrnenee

of exercising the. privilege. by stating clearly that it was

such a penalty, The doctrine to which it“ must

2e i ates o put attorneys to-, ‘a choiee between

he : Aes hir l Aterens v. Marks, 388. U.S.

3, disbarring all .who invoke the privilege . when

to, testify and produce. their records, Hore

as in Slochower, the assertion of the privi vilege against

— EP CE CCD

self-incrimination is equivalent to a resignation and

the heavy hand.. falls alike on all who exercise their

constitutional privilege, the full enjoyment of which every

person is entitled to receive. 350 U.S., at 554, 558.

Both the opinion of the Appellate Division and the ref-

eree’s report establish that the charge of petitioner’s pur-

ported failure to cooperate with the Judicial Inquiry was

sustained only as to his refusal to testify and to produce

records, and they also establish that the refusal was based

upon a good faith claim of his privilege against self-

incrimination. Indeed, the referee soundly 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 thé consti-

tutional issues raised by him (R. 80). The State cannot

extricate the inextricable by ignoring ‘the only basis for

petitioner’s refusal to furnish. information, looking only at

the refusal, itself, and labeling. it a violation of a duty to

cooperate or to be candid. and trank. = Whatever it may

call its action, 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 in-

hibition was leveled at mete ke oe the name. ee

v. Missouri, 4 Wall. 277 825. .

Unquestionably, petitioner has a” e bs an ‘sttorney

to be candid and to cooperate: with thé burt, but he also

has 2 constitutional richt to refuse to a —

a = — oe . — — 2!

1 We iebognize that ‘this’ Bolt bas 2d ö accept a

— — woe oa 1 this

application, te the State of

the spetifie guaranties of

at p. ee wl te th Amendment» We Ste Howe cs

construction which establishes that the duty rests on this Court to decide

for itself facts or constructions upon which federal constitutional issues

rest. Kern-Limerick, Inc. v. Beurlock, 347 U.S. 110, 121; see Napue v.

TUinois, 360 U.S. 264, 271-2; Haynes v. Washington, 373 U.S. 503, 516-518.

which might tend to incriminate him. Indeed, prior ‘to

Cohen the State had repeatedly recognized that ‘(t]he

-eonetitational privilege is a fundamental right and a

measure of duty; its exercise cannot be a breach of duty

to the court. In ve Grae, 282 N.Y. 428, 435, 26 N. E. 2d

963, 967 ; see In re Solovei, 276 N.Y. 647, 12 N.E. 2d 802.

But the State in Cohen, 7 N.Y. 2d 488, 166 N. E. 2d 672, af d,

366 U.S. 117, created a new kind of duty, in a test case pre-

pared ham the Judicial Inquiry, in the words of its Pre-

ustice, because lilt was the thought in some

ps that such an attitude, or such a plea [of the

privilege], made in the context of this Inquiry, might be

indicative of such a lack ot candor . „as to warrant disci-

plinary proceedings based t upon that ground alone [R.30].”’

We gontend that the purpose ‘of that test case was to pro-

a ‘a nas restricting the exereise by attorneys of

vilege against self-incrimination, as evidenced by

the statement and by the statement of an earlier

Presiding Justice of the Manley quoted in Anonymous

v. Baker, 360 U8. 28, 296, U. 11.

4. „We onde ae in apprising. all attor-

neys of the stated: purposes of the Inquiry as laid down

dy the Appellate Divisien, and ‘witnesses, whenever re-

quired, have been advised of their constitutional rights.

oo -tgito AS Many.ae 30 persons. sworn as witnesses before

the ‘Additional “Special Terma have, as is their unques-

tioned 1 Tight dnvoked, their, Lonstitutional privilege

against self-incrimination, including 11 attorneys and

g doctors. _. Faced. with. this roadblock, Counsel, for

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The ‘‘roadblock’’ then was the State pri re

now includes the Fifth Amendment privilege as

is a roadblock aptly characterized.as one of the

andar in man's derte, make hie cried”

Griswold, The Fifth Amendment Today 7 (1955), and it

cannot be surmounted or skirted by the State or by the

federal government through penalizing aan such as .

tioner, who choose to invoke it.

U. The Disbarment of Petitioner Was Arbitrary and Dis

criminatory State Action in Violation of the Due

Process and qual Frotection (lanes of the Feur-

teenth Amendment.

As we Ihave: jase ee Pues. anenten ibe

penalty prohibited bythe self-incrimination clause of the

Fifth Amendment, as applied to the stated by the Fout

teenth Amendment. We show below that the State’s aetion

was also in violation of the more generalized prohibitions of

the Fourteenth Amendment’s due process and ‘equal pre-

tection clauses, which prohibit arbitrary or discriminatory

deprivation of either one’s right to practice a profession

or of public employment. Tonigsberg v. State Bar, 363

U.S. 252; Schware v. Board of Lam Examiners; 353° Us.

232; Slochower v. Board of Education, ‘epee; Wee wv.

Updegraff, 344 U8. 168 °° :

: A. The Btondard of Pundamental enen, ts Tha‘ Avés

IS Not Controlled ‘by Cases Decided Prior: to the

Application of the Privilege ‘Against Self. ui

e tee ee seer este

—

to the states of the Fifth Amendment privilege against

_self-incrimination is not relevant to that standard. Even

if disbarment of an attorney is not a penalty absolutely

proscribed by the Fifth Amendment, there can be no ques-

tion about the very substantial deterrent effect of disbar-

ment upon the ‘exercise of a privilege which the states are

now required fully to protect. -Aécordingly the determina-

tion of whether the automatic disbarment of a lawyer who

invokes the privilege against self-incrimination amounts

to a denial of die process cannot be made without accord:

ing full weight to the privilege arid its policies, which in-

clude preservation of “‘ ‘a fair state-individual balance by

requiring the government to leave the individual alone

until good cause is shown for disturbing him and by re-

quiring the government in its contest with the individual

to shoulder the entire load....’’’ Murphy v. Waterfront

Comm n, 778 U.S. 52, 55. In short, if the disbarment is

within the specific prohibitions of the Fifth Amendment,

the State may not impose that penalty whatever may be

the legitimacy or weight of its countervailing interest.

Miranda v. Arizona, 384 U.S. 436, 479; see Barenblatt v.

United, States; 360 U.S, 109, 126. But if the compulsory

effeet of disbarment as an unquestionable deterrent to the

exercise of the. privilege somehow falls short of the kind or

degree of compulsion absolutely prohibited by the standard

of the Fifth Amendment, the question becomes whether

the State’s interest in maintaining the standards of its bar

iso compelling and the means used to effect that interest

~vtheadeption of a rule that denies every attorney who

refuses to relinquish the:privilege the richt to earn a living

in his chosen profession —are 80 essential that the consti-

futional Fights of the individual must de relinquished to

— J aautsved.

, eo Be 9 phituly cd Whatever

may have been the validity of the analysis and the deter-

mination reached in the Cohen case at the time it was de-

cided, the subsequent recognition by this Court that the

privilege against self-incrimination is a fundamental per-

sonal liberty that serves to limit state action by reason. of

the due process clause of the Fourteenth Amendment

eliminates any value as a precedent that that case might

otherwise have had. A major premise of Cohen, in con-

clu that disbarment there was not irrational and

arbitrary, was that the State was not limited by the attor-

ney’s federal constitutional right not to incriminate him-

self, so that, ‘‘something substantially more must be

shown than that the state procedures involved have a

tendency to discourage the withholding a self-incrimina-

tory testimony.’’ 366 U.S., at 129. 25

Admittedly, the Aikens cited by the Court for the

absence of any protection against self-incrimination in a

state proceeding furnished strong support for the con-

clusion that disbarment for a refusal to relinquish the

privilege was not arbitrary. Thus, the Court cited, id.,

at 128-129, Twining v. New Jersey, Q11 U.S. 78, and Adam-

son v. California, 332 U.S. 46, which established that there

was no denial of fundamental fairtigss in requiring a

criminal defendant to elect between testifying or suffering

the penalty of comment by the prosecutor upon his refusal

to do so; and Knapp v. Schweitzer, 357 U.S. 371, which

held that a state grand jury witness could constitutionally

be held in contempt, for his refusal to subject himself to

federal incrimination. If a state may jail a person for

refusing to testify on the ground of possible federal in-

crimination, it is not inconsistent to permit disbarment

for a similar refusal. But the major premise of Cohen

was repudiated by this Court’s decision in Malloy, and the

applications of that premise in Twining, Adamson and

e SS. en SORES Oe. Sele Peltier, 2

U8? 609, and Murphy v. Waterfront Comm 'n, 878 U.S. 52."

In light of the course of constitutional interpretation by

this Court sinee Cohen; then, the standards applied in that

case are inapplicable to the question of the validity of state

procedures. which operate to impair the personal liberties

= by ‘the privilege against self-incrimination.”

4 ee ee eee

— tioner had preserved only his State constitutional privilege and

is Fifth Amendment privilege. Thus the question was whether the

Scher ailhieed inatieal De canlodntody the ebsa beet of Gn: tee wee of

ere emerennrs, oy peel Sy wien. visiting Oe ve. presen Samy

of the Fourteenth Amendment, to require relinquishment of the State

privilege on & means of accomplishing that objective The scope of that

Privilege, in the absence of a

838

B. The Disbarment of Petitioner Under the Circumstances

| of This Case Was Arbitrary, 3 =e

Petitioner in no sense disputes the legitimacy of the

State’s interest in maintaining high standards of compe.

tence and character among the members of the bar; nor

does he dispute, as Judge (later Mr. Justice) Cardozo

stated in People ex rel. Karlin v. Culkin, 248 N.Y. 465

471, 162 N.E. 487, 489, that an attorney becomes an in-

strument or agency to advance the ends of justice. *

Neither does he dispute that an attorney may be disciplined

or disbarred if he is proven, in a proceeding consistent

with the standards of the Fourteenth Amendment, not

to have maintained the standards which the State imposes

upon its attorneys, But this Court has long recognized |

ree

si Culkin, an attorney was imprisoned

Inquiry, ew Court ppeals upheld

ment. A of petvflege eee

Jndge Cardozo posed the issue thus: “We are now asked to hold that,

when evil practices are rife to the dishopor of the profession, [an attorney]

may not be compelled to say what he knows of them, subject to his

claim of privilege if the answer will expose him to punishment for orime.”

371 U.S. 415; Schware v. Board of Law Examiners, 353

U.S. 232. As in other areas ‘“‘[w]here there is a signifi-

cant encroachment upon personal liberty, the State may

prevail only upon showing a subordinating interest which

is compelling,’’ Bates v. Little Rock, 361 U.S. 516, 524,

and the means ‘‘must be viewed in the light of less drastic

means for achieving the same basic purpose.“ Shelton

v. Tucker, 364 U.S. 479, 488.

It is, first of all, clear that the objective of a bar that

adheres to the highest standards of ethical behavior,

while important, is not of pre-eminent importance. It is

not of the same order, for example, as the nation’s need

to ‘preserve itself against foreign invasion, or internal

subversion, or economic collapse. Indeed, the State’s

interest in a ber of high character is, we submit, of no

greater importance than its interest in convicting those

guilty of major crimes—an interest that by the explicit

command of the Constitution is made subordinate to the

Fifth Amendment. And it is not without significance that

our system of law enforcement, while no more perfect

than any other human institution, has operated quite

satisfactorily in the almost two centuries since the Fifth

Amendment was adopted.

As to the means here used by the State, what has been

done, as the opinion of the Appellate Division makes clear,

is to call attorneys before a secret investigation in which

no charges are made against them and to require them

to answer questions and produce all their financial records

for examination. If such attorneys refuse to cooperate

with these procedures under good faith claims of theig

privilege against self-incrimination, the State has an in-

flexible rule that they must be disbarred. The State’s

rationale for that inflexible rule is difficult to grasp. The

Appellate Division’s opinion appears to deny that any

Senate ee nr eee Soom Se eeeeatiin af Ge priv

loge, but at the same time it equates invocation of the privi-

lege with a lack of candor and frankness. In the Slochower

case, of course, the New York Court of Appeals even more

clearly denied that any inference of guilt was drawn from

Professor Slochower’s invocation of the privilege, 306

N.Y. 532, 538, 119 N.E. 2d 373, 377, but this Court nonethe-

less held that such an inference was made “‘[i]n practical

effect, 350 U.S., at 558, and it condemned unequivocally

the practice of imputing a sinister meaning to the exer-

cise of a person’s constitutional right under the Fifth

Amendment. Id., at 557; see Grunewald v. United States,

353 U.S. 391, 421. But that is exactly what was done

by the State in this case. It gave a sinister meaning to

petitioner’s invocation of the privilege by finding therein

a lack of candor and frankness which was found te be in-

consistent with the duty of cooperation owed to the court.

If one accepts at face value the rationale of the Appel-

late Division, which was implicitly accepted by the Court

of Appeals through its reliance upon Cohen, the State has

created an absolute duty of attorneys to disclose informa-

tion to the court, and it will not look behind the refusal to

examine the reason. Thus, the duty is violated equally by

one who refuses to cooperate merely on grounds of con-

tumacy, by one whose refusal is based upon a good faith

claim of the privilege against self-incrimination, and, pos-

sibly even by one who resists disclosure because it would

involve privileged information obtained from a client. It

is difficult, to conceive of a more arbitrary procedure than

to give undifferentiated treatment to these grounds for re-

fusal to disclose information. Compare Wieman v. Upde-

graf, 344 U.S. 183. But if one looks behind the court’s

rationale, as we contend this Court can appropriately do,

see pp: 27-28, supra, it appears that this absolute duty

is newly created for the purpose of penalizing’ attorneys

CCC

— evidence.

It cannot be denied, of course, that it is more efficient

and simpler for the Judicial Inquiry to pursue its task

through direct questioning of members of the bar, including

both those who are suspected of unethical behavior and

those who are not, than it is to develop independent evi-

dence through less direct means. But the choice between

greater efficiency of the State and the freedom of the indi-

vidual was made long ago when the Bill of Rights was

adopted. Where the protections of the Bill of Rights con-

flict with the efficacy of a system of law enforcement, it is

the Constitution that must be respected and the system

that must be modified to make it conform. Escobedo v. Illi-

nois, 378 U.S. 478, 490: Brown v. Mississippi, 297 U.S. 278;

see also Entick v. Carrington, 19 How. St. Tr. 1029, 1073-

1074 (Ct. of Common Pleas). |

The issue, however, is not whether it is simple or con-

venient for the State to insist upon relinquishment of the

privilege but rather whether the State can manage to do

without so drastic an invasion of a constitutional right and

yet preserve the integrity of the bar. For where funda-

mental personal liberties are to be impaired the law or

regulation must be shown necessary, and not merely ra-

tionally related, to the accomplishment of a permissible

state policy, McLaughlin v. Florida, 379 U.S. 184, 196

(Emphasis added.), and ‘‘a governmental purpose to con-

trol or prevent activities constitutionally subject to State

regulation may not be achieved by means which sweep un-

ily broadly and thereby invade the area of pro-

tected freedoms.” N. A. 4. C. P. v. Alabama, 377 U.S. 288, 307.

New York’s own history, to which we refer at p. 28,

supra,. does not indicate that recognition and preservation

of the privilege has resulted in any noticeable lowering of

the standards of the bar or in the extent to which those

standards are generally observed.“ Nor is there anything

in the record to support the bald conclusion of the Appel-

late Division that the kind of ‘‘cooperation’’ demanded

by that court of members of the bar is a necessary condi-

tion to the maintenance of the desired standards of conduct.

On the contrary, this record discloses that the State’s

investigation would have been hampered very little had

it adhered to its earlier practice of recognizing that, exer-

cise of the privilege against incrimination is wholly con-

sistent with an attorney’s obligations to the court. Peti-

tioner complied fully with the special rules of the Appel-

late Division requiring the filing of statements of retainer.

Accordingly, the pleadings filed by him in actions before

the courts and the statements of retainer filed by him gave

detailed information as to his activities as an attorney,

see p. 4, n. 2, supra, so that the State had but to take

the time required for independent investigation in order

to establish whether he had abused his right to practice.

Beyond the facts of this case, it seems to us highly un-

likely that there will be many instances in which exposure

of unethical practices by an attorney will turn ‘solely upon

the ability of the State to compel his testimony, in the

face of a claim that it would be incriminating. In short,

No conflict exists between constitutional requisites and

exaction of the highest moral standards from those who

would practice law.. Willner v. Committee on Character,

373 U.S. 96, 106 (concurring opinion of Goldberg, J.).

It is possible that instances will arise in which invoca-

e eee,

26 ‘The English practice appears a

the tight to refase to give testimony — where

the complaint against him involved an indictable offense, although he could

Tr. *.

222 5a

plicant for a license or a governmental benefit to establish

that he possesses the requisite qualifications. See Konigs-

berg v. State Bar, 366 U.S. 36; cf. Kimm v. Rosenberg, 363

U.S. 405. He must still be allowed the opportunity to

establish those qualifications, however, because a refusal

to supply information upon a claim of federal constitu-

tional right cannot of itself constitute evidence of bad

character. Konigsberg v. State Bar, 353 U.S. 252.“ There

may be reason, moreover, for permitting a state greater

leeway when it is dealing with applicants for a license

than when it seeks to withdraw a license long enjoyed and

relied upon. It is one thing to say, for example, that a

state need not, in processing the hundreds of annual appli-

cations for admission to its bar, maintain a staff of in-

vestigators to establish by independent evidence the lack

of qualifications of applicants who withhold information

upon constitutional grounds. It is quite another thing to

say that one who has long since established his qualifi-

cations and practiced under a license from the state may

be called upon to appear before a secret investigation and

given the burden of disproving, in absence of any charges

of wrongdoing, that he has not maintained the standards

required of him. Cf. Speiser v. Randall, 357 U.S. 513. And

might tend to subject him to incrimination. Indeed, it is

in just this sort of proceeding that the Court has recog-

nized the privilege to have its paramount justification, see

Grunewald v. United States, 353 U.S. 391, 422-423, and it

follows that it is in just this sort of proceeding where pro-

cedures inhibiting the exercise of the privilege are most

arbitrary.

Americans today, with relatively inconsiderable excep-

tions, live upon what they earn and not what they own.

To disbar a man who has practiced law for forty years,

without complaint or reproach, when he has violated no

valid law or regulation is, in the words of Mr. Justice

Black in dissent in Nelson v. Los Angeles County, 362

U.S. 1, 10, a denial of due process ‘‘in its authentic, his-

torical sense. The exercise of a constitutional right can-

not be made the sole basis for denying a man the right

to engage in the only profession for which he is qualified.

C. Disqualification of Attorneys From the Exercise of a

Privilege Guaranteed Other Citizens Is Invidious

Discrimination.

Even aside from the arbitrariness of the State’s proce-

dure on the grounds discussed above, the opinion of the

Appellate Division attempts to create a classification under

which petitioner as a citizen is entitled to exercise his

privilege though he cannot do so as an attorney. That

classification, of course, echoes the rationale of the New

York courts and of this Court in the Cohen case. We

contend, with all respect, that there can be no more invidi-

ous discrimination under the equal protection clause of

the Fourteenth Amendment than to hold that an attorney,

whose office is undertaken under an oath to support and

defend the rights guaranteed by the Constitution and whose

practice frequently may 8 8 him, in good faith, to

. SS 3 2S

counsel clients to withhold information from the courts

under that Constitution, is disqualified from exercising

those rights for himself because he is an attorney. Com-

pare Takahashi v. Fish Comm’n, 334 U.S. 410; Truaz v.

Raich, 239 U.S. 33. It is no answer to say that an attorney

may be denied rights guaranteed to other citizens merely

because his position is one of trust or because his status

carries with it a duty of cooperation with the courts, since

% State cannot foreclose the exercise of constitutional

rights by mere labels.“ N. A. A. C. P. v. Button, 371 U.S. 415,

429. Stripped of its trappings, the rationale for such a

classification as between attorneys and other citizens is .

that, while the government may well tolerate a marginal

standard of behavior from citizens in general, the much

higher standards required of attorneys do not permit them

to hide behind a constitutional privilege the function of

which is to shelter those who have done wrong. But, as

we have already shown, at p. 35, supra, this Court time

and again has emphasized that no such view of the privi-

lege against self-incrimination may be taken by the gov-

ernment, since ‘‘one of the basic functions of the privilege

is to protect innocent men,’’ Grunewald v. United States,

supra, at 421, particularly in the circumstances in which

it was invoked by petitioner. Id., at 422-423; see also

Murphy v. Waterfront Comm u, 378 U.S. 52, 55-56. Thus,

the classification of the State is left without rational jus-

tification on the basis of any peculiar status of petitioner

as an attorney or because of any peculiar relationship

between him and the Judicial Inquiry which sought to strip

him of either his privilege or his profession.

Finally, a classification disqualifying attorneys from the

exercise of a constitutional right while preserving that

right for other citizens ignores a basic interest of society.

As this Court stated in Konigsberg v. State Bar, 353 US.

252, 273, [a] bar composed of lawyers of good character

is.a worthy objective but it is unnecessary to sacrifice vital

freedoms in order to obtain that goal. It is also important

both to society and the bar itself that lawyers be unin-

timidated—free to think, speak, and act as members of an

Independent Bar.’’ Surely it would not be contended that

the attorney’s status strips him of his constitutional right

to criticize the courts in good faith while others enjoy that

right. Compare Garrison v. Louisiana, 379 U.S. 64, with

New York Times Co. v. Sullivan, 376 U.S. 254; cf. In re

Sawyer, 360 U.S. 622. It would be an equally unacceptable

denigration of the privilege against self-incrimination if

the states were free to determine that its exercise is con-

sistent with the duties of a layman but not with those of

an atférney. There is, we submit, no rational basis that

supports such a determination, and the State’s action must

citizens in connection with the history of

elie

lis

to The

state and he could meet, as the law contemplates, in adversary trial,

as equals—strength against strength, resource against resource, argu-

ment against argument. The duty to cooperate came to an end at the

threshold of conflict between the state and the individual.” Fortas,

The Fifth Amendment: Nemo Tenetur Prodere Seipewm, 25 Cleve. B.

A.J. 91, 98 (1954)

TIL The Invalidity of Potitioner’s Disbarment Is Not

Affected by the State’s 8 Rule Requiring Attorneys

to Keep Records.

A. The Judgment May Not Be Affirmed Upon the Sole

Ground That the Privilege Did Not Apply to Peti-

tioner’s Records.

The Appellate Division explicitly recognized that peti-

tioner had ‘‘an absolute right to invoke his constitutional

privilege against self-incrimination and to refuse’’ to tes-

tify and to produce the records for which the subpoena

called, but it held that he could nonetheless be disbarred

for exercising that ‘‘absolute’’ right. In its memorandum

order of affirmance, however, the Court of Appeals relied

upon the Cohen case and ‘‘on the further ground that the

Fifth Amendment privilege does not apply to a demand,

not for oral testimony, but that an attorney produce rec-

ords required by law to be kept by him... . [R.86]’’ Thus,

the Court of Appeals reversed the Appellate Division’s

holding that the privilege was applicable to petitioner‘s

refusal to produce records, although it agreed with the

holding that the privilege applied to his refusal to testify.

Assuming arguendo that the Fifth Amendment privilege

as to production of petitioner’s records was removed by

virtue of the so-called required records doctrine established

in Shapiro v. United States, 335 U.S. 1, nothing in that

doctrine would operate tb remove the testimonial privilege,

either in general or with reference to testimony about the

required records. Shapiro v. United States, supra, at 27;

Curcio v. United States, 354 U.S. 118.

Petitioner asserted both a testimonial and a documentary

privilege before the Judicial Inquiry. The charge against

him was a ‘‘refusal to answer questions and to produce

the records’’ called for by the subpoena (R.7). The order

of disbarment was entered ‘‘on the basis of the Referee’s

unchallenged finding that [petitioner] refused to testify

and to produce his record [R.83].’’ Thus it is clear from

the order of the Court of Appeals, as well as its amended

remittitur, that its affirmance of the disbarment order was

based both upon petitioner’s conceded right to refuse to

testify and his refusal to produce his records. Otherwise

reliance upon the Cohen case, which held that an attorney

may be disbarred even for a refusal to testify based upon

a valid claim of privilege would have been neither neces-

sary nor appropriate.

If this Court accepts our previous argument that

petitioner could not constitutionally be disbarred for his

refusal to answer questions, then the fact that the dis-

barment order was also based in some inestimable degree

upon an unprivileggg refusal to produce records would not

permit affirming the judgment below, which ‘‘must be af-

firmed as to both or as to neither.“ Thomas v. Collins, 323

U.S. 516, 529; see Williams v. North Carolina, 317 U.S.

287, 292; Stromberg v. California, 283 U.S. 359, 367-368;

cf. Jackson v. Denno, 378 U.S. 368; Fahy v. Conmecticut,

375 U.S. 85. Since the court below passed upon respond-

ent’s belated claim that petitioner’s privilege did not apply

to the so-called required records, however, and in order

ultimately to resolve the controversy between the parties

to this case, the Court may well believe it appropriate to

resolve the question whether the record-keeping require-

ment of Rule 5 of the Appellate Division operated to

remove the privilege from the records which petitioner

refused to produce before the Judicial Inquiry. We con-

tend that it did not, since the Shapiro case should be over-

ruled for reasons discussed below, and since, even if there

remains some validity to the required records doctrine,

that doctrine does not apply to records involved here: Fur-

ther, even if the Court rejects both of the above arguments,

the judgment must be reversed under the doctrine of Raley

v. Ohio, 360 U.S. 423.

B. The | Records Doctrine is an Unwarranted

Dims en the Scope of the Privilege Against

#3 “Ralf Incrimination

' The required records doctrine, briefiy stated, is that the

Fifth Amendment privilege of an individual to refuse to

produce his private papers may be removed by a govern-

mental requirement that those papers be kept by him. Al-

though the doctrine earlier had been approached by lower

courts, see Note, Quasi-Public Records and Self-Incrimina-

tion, 47 Colum. L. Rev. 838 (1947), it was established and

applied by this Court for the first—and last—time in Sha-

piro v. United States, 335 US. 1. There the Court held

that the privilege did not apply to sales records required

to be kept by food licensees under wartime regulations of

the Office of Price Administration, since the records had

lost their character as private papers and acquired pub-

lic aspects. Id. at 34. The case involved a fruit and

vegetable wholesaler licensed under the Emergency Price

Control Act, 56 Stat. 23, who was tried on charges of

making tie-in sales in violation of OPA regulations. He

contended that, hecause he had produced, under subpoena,

sales. records required to be kept by him under OPA regu-

lations and had been assured that he thus received the im-

munity which flowed from the immunity provisions of the

Act, he could not be prosecuted for violations disclosed by

the records. The Court, in a long opinion devoted to the

interpretation of the immunity provisions of the Act, re-

jected his contention that the Act granted immunity to

persons who produced records required to be kept by regu-

lations under the Act. Noting that petitioner had not duly

raised the question, 335 U.S., at 32, the Court then held

that the Act was constitutional as thus construed. It as:

sumed that ‘‘there are limits which the Government cannot

constitutionally exceed in requiring the keeping of records

oo:

which may be inspected by an administrative agency and

may be used in prosecuting statutory violations committed

by the record-keeper,”’ ibid., but held that the bounds were

not exceeded in that case.

The principal authorities relied upon by the court were

Wilson v. United States, 221 U.S. 361, and Davis v. United

States, 328 U.S. 582. The latter case involved a claim,

rejected by the Court, that gasoline ration coupons intro-

duced in evidence in a trial for unlawful possession of

those coupons were the product of an unreasonable search

and seizure. The Court found that the coupons were issued

by the government under regulations providing that they

did not become the property of the custodian but remained

government property, subject to inspection and recall, and

held, relying upon the Wilson case, that the custodian of

public documents was not privileged under the Fifth

Amendment to refuse to produce them, even though he

might thereby be incriminated.

The Wilson case was decided shortly after Hale v.

Henkel, 201 U.S. 43, which held that a corporation could

not claim the privilege and that a corporate officer could

not, therefore, resist production of documents on the

ground that the corporation might be incriminated. Wilson

extended this doctrine and held that a corporate officer

has no Fifth Amendment privilege to refuse to produce

the records of the corporation which are in his. ‘

even though they might incriminate him, since his mere

custody does not make the corporation’s papers his own

and since the corporation has no privilege. Thus, the

holding in neither Davis nor Wilson furnished any sub-

stantial support for the conclusion in Shapiro that the pri-

vate records prepared by a non-corporate businessman for

use in the conduct of his affairs can somehow be trans-

formed into public documents—such as ration coupons is-

sued by the government—or that the individual can be

transformed from an owner to a mere custodian—such as

a corporate officer—by the simple expedient of an adminis-

trative regulation requiring that such records be kept.

The Court in Shapiro did not rely upon the holdings in

either Wilson or Davis, however, nor did it base its deci-

sion upon any analysis of those cases. Rather, it relied

upon a dictum from Wilson, 221 U.S., at 380, which was

quoted later in Davis, 328 U.S. at 589-590, that ‘‘the privi-

lege which exists as to private papers cannot be main-

tained in relation to ‘records required by law to be kept

in order that there may be suitable information of transac-

tions which are the appropriate subjects of governmental

regulation and the enforcement of restrictions validly estab-

lished.’ ”’ 335 U.S., at 33. A dissenting opinion in Shapiro

made an exhaustive analysis indicating the inapplicability

of the Wilson dictum, and of the English and state cases

cited by the Court in Wilson in support of it, to the kind

of records involved in Shapiro, see 335 U.S., at 58-62 (dis-

_ senting opinion of Frankfurter, J.), and we can add nothing

to that analysis.“ As Mr. Justice Frankfurter demon-

strated, the dietum went far afield from the question ac-

tually decided in Wilson that a corporate officer could not

resist a government demand for production of corporate

documents in his custody even though the documents might

incriminate him. The Court in Wilson noted that Wilson’s

- custody as an officer was subject to the control of the cor-

poration and also that the directors had formally demanded

possession from Wilson for the purpose of producing the

19 We do note, however, that the portion of the Wilson dictum quoted in

Shapiro referred to a further application of the principle that, “in the

ease of public records and official documents, made or kept in the ad-

ministration of public office, the fact of actual possession or of lawful

custody would not justify the officer in resisting inspection. Wilson v.

United States, supra, at 380. Petitioner is not, of course, a public official

A United States,

documents. 221 U.S., at 376, 385. Thus, the dictum was

intended to show only that a custodian of documents to

which another has a greater right of possession may not

resist production on Fifth Amendment grounds when the

owner, itself, may not resist production on those grounds.

The fundamental defect of Shapiro, however, lies not in

the fact that it rested in large part upon a questionable

dictum; rather, that defect lies in Shapiro’s inconsistency

with prior and subsequent cases decided by this Court and

in the absence of any rationale for the doctrine which is

consistent with the Court’s recognition that the privilege

is to be liberally rather than narrowly interpreted. As

we have noted, the Court has not, since deciding Shapiro,

explained or applied the doctrine established there, al-

though the lower courts have applied the doctrine with

conflicting results. See Securities & Exchange Commission

v. Olsen, 354 F. 2d 166 (2d Cir.) ; Russell v. United States,

306 F. 2d 402 (9th Cir.) ; United States v. Clancy, 276 F. 2d

617 (7th Cir.), reversed on other grounds, 365 U.S. 312;

Beard v. United States, 222 F. 2d 84 (4th Cir.), cert. denied,

350 U.S. 846; United States v. Remolif, 227 F. Supp. 420

(D. Nev.) ; United States v. Ansani, 138 F. Supp. 451 (N.D.

III.).“ Examination of the Shapiro rationale thus has

been left largely to the commentators, who, while they have

— —

disagreed as to whether the doctrine should be wholly re-

padiated, almost uniformly have found that no logical ra-

tionale has been advanééd in support of the doctrine. See,

eg., Edgar, Tax Records, the Fifth Amendment, and the

Required Records Doctrine, 9 St. Louis L. J. 502 (1965);

Note, Required Information and the Privilege Agamst Self-

Iacrimination, 65 Colum. L. Rev. 681 (1965) ; Comment, 9

Stan. L. Rev. 375 (1957); Note; 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 two possible bases for the required records doctrine,

as for any doctrine inhibiting exercise of the privilege, see

Rogers v. United States, 340 U.S. 367, 376-377 (dissenting

opinion of Black, J.), are a broad application of the doc-

trine of waiver and a narrow interpretation of the scope

of the privilege. The waiver theory is that an individual,

by choosing to engage in an activity in which the govern-

ment requires keeping and production of records, thereby

waives his privilege as to such records. The Court in

Shapire did not apply the waiver analysis, perhaps because

petitioner had no notice that he might be waiving his privi-

lege but rather was led to believe that his production of

records would confer immunity upon him. But in any event

the proposition that the government may force a waiver of

a fundamental personal liberty upon an individual as a

condition of permitting him to engage in an occupation

which requires a license from the government merely

assumes the answer to the basic qnestion which must

be determined—whether the governmental coercion in-

volved is inconsistent with the protection guaranteed by

the .privilege. Cf. Note, Unconstitutional Conditions, 73

Harv. L. Rev. 1595 (1960).

The arbitrary character of the waiver theory is particu-

larly apparent in its application to this case. In order

to find that petitioner waived his privilege as to the records

sought by the subpoena, one must say first that, by a rule

enacted in 1940, the State could force petitioner either te

waive his privilege against self-incrimination or abandon

a profession in which he had engaged since 1926. Second,

the waiver must be implied despite the absence of any

notice in the rule that such a waiver was part of the record-

keeping requirement and despite the fact that the New

York Court of Appeals had previously rejected the position

that a record-keeping requirement made inapplicable the

State privilege against self-incrimination. See People ex

rel. Ferguson v. Reardon, 197 N.Y. 236, 90 N.E. 829. Finally,

the waiver must be found despite the fact that petitioner

assertéd his privilege before the Judicial Inquiry and was

advised by the Presiding Justice that he had a perfect right

to plead it. Thus, unless the elements of knowledge and

voluntariness are wholly eliminated from the requirements

for a valid waiver, the theory cannot ap petitioner.

See Miranda v. Arizona, 384 US. 436, 475-476; Stevens v.

Marks, 383 U.S. 234.

The Shapiro case, however, was not based upon a broad

waiver doctriné but rather upon*the second technique for

reducing the protection of the privilege. The scope of the

to which the Fifth Amendment privilege has been deprived

of its force depends upon the nature of the limits upon

governmental power to which the Court referred but which

it did not explain in Shapiro, 335 U.S., at 32. Under a

broad reading of Shapiro any kind of document prepared

by a private individual which would reasonably aid in the

enforcement or administration of a legitimate governmental

regulatory program may be required to be kept by that

individual and may thus be deprived of the protection of

the Fifth Amendment privilege. But the potential limita-

tion upon the scope of the privilege, while great at the time

Shapiro was decided, is constantly expanding as the area of

individual activity which is outside the bounds of govern-

mental regulatory power decreases. And when it is realized

how pervasive federal and state regulation has become and

how few activities may be carried on without a license of

some sort, with an accompanying record-keeping require-

ment, it becomes evident that if the doctrine is allowed to

stand, there is little left to either the right of privacy or

the constitutional privilege.’’ Shapiro v. United States, 335

U.S., at 10 (Frankfurter, J. dissenting). The record-keep-

ing requirements imposed upon the public by the federal

government alone are contained in a digest which comprises

68 pages, plus a 14 page index. See 31 Fed. Reg. 4000-

4085 (March 8, 1966), revising 1 C.F.R. Appendix A. The

digest states, moreover, that it excludes various types of

requirements, see 31 Fed. Reg., at 4002.

We do not contest that the privilege applies only to pri-

vate and not public documents, but the characterization of

required records as not private cannot be harmonized with

the definition of ‘‘private’’ as recognized in Boyd v. United

States, 116 U.S. 616, which established that private papers

are protected by the privilege. The document which the

Court in Boyd held privileged against compulsory produc-

tion was an invoice of certain cases of glass which had been

imported into the country. Just as in Shapiro, the docu-

ment was prepared by a private businessman for use in his

business; just as in Shapiro, the business involved was one

which was regulated by the federal government; and, in a

sense indistinguishable from Shapiro, the document was a

required record.. * But the distinction in Boyd between

private papers and those which were without the pf̃oteetion

of the Fourth and Fifth Amendments did not relate to mere

governmental requirements that documents relating to a

business regulated by the government be kept and pfoduced.

Boyd regarded the protection of the privilege as withheld

only with respect to items which the government was en-

titled to seize and possess, such as stolen property and.

excisable articles. 116 U.S., at 623-624. .

The Court in Shapiro could, of course, have overruled

Boyd, but it did not purport to do so and the continued

vitality of Boyd, as ‘‘one of the greatest constitutional de-

cisions of this Court, has generally been accepted. Sch-

merber v. California, 34 U.S. L. Week 4586, 4591 (June 20,

1966) (dissenting opinion of Black, J.); see id., at 4588.

22 The government in Boyd had sought compulsory production of the

invoice under Section 5 of the Act to amend the customs-revenue laws and

to repeal moieties, 18 Stat. 187, which provided as follows:

“That in all suits and proceedings other than criminal arising under

any of the revenue laws of the United States, the Attorney repre-

senting the government, whenever, in his belief, any

eee

Ss b cee

— 3

6— .

Therefore Shapiro stands as a grave departure from Boyd

and an unwarranted limitation upon the scope of the priv

lege as delimited in Boyd, and also as inconsistent with the

Court’s previous and subsequent injunctions that the privi-

lege is to be interpreted broadly. See Miranda v. Arizona,

384 U.S. 436, 461, and cases there cited.

Shapiro moreover, is inconsistent with this Court’s re-

cent decision in Albertson v. SACB, 382 U.S. 70, which

held unconstitutional, as inconsistent with the Fifth Amend-

ment privilege, a federal statute and orders thereunder re-

quiring the completion and filing with the government of

registration statements by members of the Communist

Party. The Court cited cases 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 testimony, we do not

see how compulsion in writing makes a difference for con-

stitutional purposes. Id., at 78. That holding in itself is

inconsistent with Shapiro, which established just such a

constitutional difference between compelling oral testi-

mony and compelling documentary evidence. 335 U.S., at

27.

Shapiro found that the Fifth Amendment privilege did

not prohibit a requirement that an individual produce for

government inspection documents which would incriminate

him, becanse ‘‘there is a sufficient relation between the

activity sought to be regulated and the public concern so

that the Government can constitutionally regulate or forbid

the basic activity concerned, and can constitutionally re-

quire the keeping of particular records, subject to inspec-

tion by the Administrator.’’ 335 U.S., at 32. Putting

aside the fact that this analysis ignores the critical distine-

tion between the power to require records to be kept and

the power to deprive those records of the protection of the

Fifth Amendment, the situation in Albertson appears

clearly to fall within this rationale. The Court in Commu-

nist Party v. Control Board, 367 U.S. 1, 88-103, established

both the extensive power of Congress to regulate the ac-

tivities of the Communist Party and the reasonable rela-

tionship of registration and disclosure requirements to the

interests sought to be protected through that regulation.

The Court in Albertson, however, held that registration by

individuals could be required only if the government sup-

planted the privilege by immunity which supplied a com-

plete protection against all the perils against which the

privilege guarded. Thus, unless there is some constitutional

difference between requiring the keeping of records which

must be surrendered upon the government’s call and re-

quiring the filing of reports with the government, the de-

cision in Albertson must be regarded as a conflict with

Shapiro which justifies explicit overruling of that case.

It may be argued that repudiating the required records

doctrine would interfere with the regulatory programs of

the federal and state governments. The short answer to that

argument, of course, is that the Fifth Amendment privilege

is not to be weighed against countervailing interests. Itisa

right which cannot be abridged. Miranda v. Arizona, 384

U.S., at 479. Even if such a consideration were relevant,

23 We are able to find no difference for purposes of the Fifth Amend -

ment privilege between such a record-keeping requirement and a report-

filing requirement, and we note that the government in the Shapiro case

found no such distinction:

“The weakness of petitioner’s argument would be more clearly

demonstrated if, as is conventional under many of federal and

state regulations, he had been required by law to filo periodie reports.

of the persons regulated.” Brief for the United States, p. 20, n. 7.

We also note, however, that the government’s brief in Albertson did not

cite the Shapiro case. .

— PUNTERS

— —

however, it is unlikely that repudiation of the doctrine would

impair in any substantial way the administration or en-

forcement of regulatory programs. Subject to the require-

ments of other constitutional provisions, the government

could still require the keeping of records, and such records

could be withheld from production only by natural persons

who chose to claim the privilege and as to whom the govern-

ment was unwilling to grant immunity. There would be no

effect upon the principal subjects of regulatory programs,

since corporations and unincorporated associations such as

labor unions and partnerships are not entitled to claim the

privilege. See Wilson v. United States, 221 U.S. 361; United

States v. White, 322 U.S. 694; United States v. Silverstein,

314 F. 2d 789 (2d Cir.), cert. denied, 374 U.S. 807.

C. Assuming the Required Records Doctrine Retains Some

Validity, the Doctrine Does Not Apply to the Records

Involved in This Case.

Should the Court reject our argument that the required

records doctrine must be repudiated entirely through over-

ruling the Shapiro case, the Court’s recent decisions estab-

lishing the fundamental values reflected in the privilege and

the broad, liberal application which it must be given require

at least that the doctrine be construed very narrowly and

limited in its application to substantial governmental inter-

ests which can be effected through no means other than a

restriction of the scope of the privilege. See Comment, 9

Stan. L. Rev. 375 (1957) ; Note, 68 Harv, L. Rev. 340 (1954) ;

compare Aptheker v. Secretary of State, 378 U.S. 500, 508;

» Shelton v. Tucker, 364 U.S. 479. In light of the Albertson

case, it is difficult to conceive of the kinds of cases that would

fall within the limits of a required records doctrine that is

so narrowly confined, but it is apparent that this case

cannot be within such limits. As we have pointed out

previously, the State has made no showing that produc-

tion of the documents called for in the subpoena is essen-

tial, or indeed even necessary, to the enforcement of the

standards of the Kings County bar and that the information

already available through pleadings and statements of re-

tainer is not adequate to permit the Judicial Inquiry to

establish any wrongdoing through investigation and devel-

opment, of independent evidence.

This case differs from Shapiro both in the type of activity

involved and in the type of records required to be kept.

Shapiro dealt with a complex, nationwide system of price

controls affecting varying industries and commodities with

varying methods of operation. This case involves the stand-

ards of ethics to be maintained by attorneys practicing in a

limited class of cases in the Second Judicial Department of

the State of New York. Thus, the factors which might

justify a partial limitation of the privilege in Shapiro be-

cause of the complexity, character and broad geographic

application of the regulatory scheme involved, and a conse-

quent frustration of enforcement in the absence of requiring

keeping and production of records, are not present in this

case. At the same time, the record-keeping requirements

in Shapiro were comparatively narrowly drawn. Thus the

Court in that case emphasized that the record involved

there was a sales record which recorded“ a transaction

in which the petitioner could engage solely by virtue of a

license granted under the statute which required the rec-

ords to be kept, 335 U.S., at 35, and the government’s brief

noted that the petitioner was not required to keep records

of his private affairs or his other business affairs but was

required solely to ‘‘keep and make available for inspection

records relating to the prices at which he sold price-con-

trolled fruits and vegetables. Brief for the United

States, p. 13. In contrast, the records sought here serve

no recording function. That function had already “been

fulfilled by other documents filed by petitioner apart from

the requirements of Rule 5. Rule 5, as implicitly inter-

preted by the Court of Appeals through its application of

the required records doctrine to the documents sought in

the subpoena, includes petitioner’s day book, cash receipts

book, cash disbursements book, check book stubs, petty cash

book and vouchers, general ledger and journal, cancelled

checks and bank statements, pass books and other evi-

dences of accounts, record of loans made, payroll records,

and state and federal tax returns and work sheets rela-

tive thereto. Thus, the State’s record-keeping requirement

is not narrowly limited to the precise area in which it has

a legitimate interest but rather ‘‘sweep[s] unnecessarily

broadly and thereby invade[s] the area of protected free-

doms' under the Fifth Amendment. N. A. A. C. P. v. Ala-

bama, 377 U.S. 288, 307. We contend that, even if Shapiro

retains some validity, it should not be extended to cover the

type of records required to be produced here.

D. Affirmance of the Judgment on the Ground That Peti-

tioner Had No Privilege to Refuse to Produce His

Records Would Be a Denial of Due Process of Law.

Even if Shapiro is valid and applicable to the records in-

volved here, affirmance of the judgment on the ground that

petitioner had no privilege to refuse to produce his records

would be violative of the due process clause of the Four-

teenth Amendment, in light of the procedure followed in

this case. As we have stated, petitioner had no notice

until after the close of the hearings before the Judicial

Inguiry and the hearing before the referee that the State

might contend that he had no privilege to refuse to pro-

duce his records. The Presiding Justice at the Judicial

Inquiry had advised him, with no objection from the State,

that the privilege did apply, and, while respondent later

raised the issue of applicability of the privilege, the Appel-

late Division held that the privilege did apply. Apart from

any notice from the courts or respondent, petitioner had

no notice from the opinions of any of the courts in the

Cohen case that tk privilege did not apply to production

of records, though Cohen involved a refusal to produce

records as well as a refusal to testify. See 366 U.S., at

120. Further, the controlling New York law established

that, notwithstanding a requirement that records be kept,

the privilege applied to such records. People ex rel. Fer-

guson v. Reardon, 197 N.Y. 236, 90 N.E. 829. And finally,

a comparison between the documents called for by the sub-

poena and the documents required by Rule 5 would have

made it apparent, even to the most cautious attorney con-

cerned with adherence to a broad Shapiro doctrine, that he

was not being asked to produce the documents required

to be kept since the subpoena reached much further. Com-

pare Hubner v. Tucker, 245 F. 2d 35 (9th Cir.).

Thus, until the Court of Appeals’ decision, petitioner

had been led to believe that he faced disbarment only as a

consequence of his refusal to relinquish a valid claim of

the privilege against self-incrimination under a decision

which was specifically discredited by Malloy v. Hogan, 378

U.S. 1, 11. But the Court of Appeals, in an implicit con-

struction of Rule 5 which broadened its application far

beyond the language of the rule, held that petitioner had

no privilege at all with respect to the records which the

State sought to coerce him.to produce under pain of dis-

barment. The procedure here is strikingly similar to that

in Raley v. Ohio, 360 U.S. 423, in which the agency before

which the appellants appeared advised them that they had

a right to rely upon the State privilege, after which the

State Supreme Court held that they were not protected by

the privilege and thus had committed an offense in refus-

ing to answer the questions put to them. To sustain the

judgment here would be to sanction the same ‘‘indefensible

sort of entrapment by the State? which the Court refused

to sustain in Raley as inconsistent with the requirements

of the Fourteenth Amendment. Id., at 426; see also Stevens

v. Marks, 383 U.S. 234.

a Conclusion

For the reasons discussed above the judgment of the

Court of Appeals of the State of New York should be re-

versed.

Respectfully submitted,

Lawkence J. Larro

Wax H. Dempsey, In.

— Martin J. Fiynn

734 Fifteenth Street, N. W.

Washington, D. C. 20005

Attorneys for Petitioner.

Of Counsel:

Brrnarp SHarzkKin

235 East 42nd Street

New York 17, New York

Sn ARDNER

Fifteenth Street, N. W.

Washington, D.C. 20005

(9145-4)

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