# Petitioners Brief — Spevack v. Klein

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1967
- **Citation:** 385 U.S. 511

## Text

BLANK

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

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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

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PAGE

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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
b

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 |
3

8
SR ESS B8888 88888 BF

8

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 , » . ¥ — 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

—

12

. 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

*
a
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.

Ne

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PR LOLOL LEA O E. eee ENT LEE IGT LE

14

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

16
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

17

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

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

37

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

38
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

40

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

me

41

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

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lis
4

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

43

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.

44

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

46

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,

U

47

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

49

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

50

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

51

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— .

.
52

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

53

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

0
— —

K.

54

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-

55

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

56

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

57

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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0061%3A07. Public record. Not legal advice.