# Spevack v. Klein/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Fortas
United States Supreme Court
385 U.S. 511
Spevack v. Klein
Argued: Nov. 7, 1966. --- Decided: Jan 16, 1967
This is a proceeding to discipline petitioner, a member of the New York Bar, for professional misconduct. Of the various charges made, only one survived, viz., the refusal of petitioner to honor a subpoena duces tecum served on him in that he refused to produce the demanded financial records and refused to testify at the judicial inquiry. Petitioner's sole defense was that the production of the records and his testimony would tend to incriminate him. The Appellate Division of the New York Supreme Court ordered petitioner disbarred, holding that the constitutional privilege against self-incrimination was not available to him in light of our decision in Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156. See 24 A.D.2d 653. The Court of Appeals affirmed, 16 N.Y.2d 1048, 266 N.Y.S.2d 126, 213 N.E.2d 457, 17 N.Y.2d 490, 267 N.Y.S.2d 210, 214 N.E.2d 373. The case is here on certiorari which we granted to determine whether Cohen v. Hurley, supra, had survived Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653.
Cohen v. Hurley was a five-to-four decision rendered in 1961. It is practically on all fours with the present case. There, as here, an attorney relying on his privilege against self-incrimination refused to testify and was disbarred. The majority of the Court allowed New York to construe her own privilege against self-incrimination so as not to make it available in judicial inquiries of this character (366 U.S., at 125-127, 81 S.Ct., at 959, 960) and went on to hold that the Self-Incrimination Clause of the Fifth Amendment was not applicable to the States by reason of the Fourteenth. Id., 366 U.S. at 127-129, 81 S.Ct. at 960-962. The minority took the view that the full sweep of the Fifth Amendment had been absorbed into the Fourteenth and extended its protection to lawyers as well as other persons.
In 1964 the Court in another five-to-four decision held that the Self-Incrimination Clause of the Fifth Amendment was applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653. While Cohen v. Hurley was not overruled, the majority indicated that the principle on which it rested had been seriously eroded. 378 U.S., at 11, 84 S.Ct., at 1495. One minority view espoused by Mr. Justice Harlan and Mr. Justice Clark stated that Cohen v. Hurley flatly decided that the Self-Incrimination Clause of the Fifth Amendment was not applicable against the States (id., 378 U.S. at 17, 84 S.Ct. at 1498) and urged that it be followed. The others in dissent-Mr. Justice White and Mr. Justice Stewart-thought that on the facts of the case the privilege was not properly invoked and that the state trial judge should have been sustained in ruling that the answers would not tend to incriminate. Id., 378 U.S. at 33-38, 84 S.Ct. 1506-1509.
The Appellate Division distinguished Malloy v. Hogan on the ground that there the petitioner was not a member of the Bar. 24 A.D.2d, at 654. And the Court of Appeals rested squarely on Cohen v. Hurley as one of the two grounds for affirmance.
And so the question emerges whether the principle of Malloy v. Hogan is inapplicable because petitioner is a member of the Bar. We conclude that Cohen v. Hurley should be overruled, that the Self-Incrimination Clause of the Fifth Amendment has been absorbed in the Fourteenth, that it extends its protection to lawyers as well as to other individuals, and that it should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for asserting it. These views, expounded in the dissents in Cohen v. Hurley, need not be elaborated again.
'The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement-the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty * * * for such silence.' 378 U.S., at 8, 84 S.Ct., at 1493.
In this context 'penalty' is not restricted to fine or imprisonment. It means, as we said in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, the imposition of any sanction which makes assertion of the Fifth Amendment privilege 'costly.' Id., 380 U.S. at 614, 85 S.Ct. at 1233. We held in that case that the Fifth Amendment, operating through the Fourteenth, 'forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.' Id., 380 U.S. at 615, 85 S.Ct. at 1233. What we said in Malloy and Griffin is in the tradition of the broad protection given the privilege at least since Boyd v. United States, 116 U.S. 616, 634-635, 6 S.Ct. 524, 534-535, 29 L.Ed. 746, where compulsory production of books and papers of the owner of goods sought to be forfeited was held to be compelling him to be a witness against himself.
'It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.' 116 U.S., at 635, 6 S.Ct., at 535.
The threat of disbarment and the loss of professional standing, professional reputation, and of livelihood are powerful forms of compulsion to make a lawyer relinquish the privilege. That threat is indeed as powerful an instrument of compulsion as 'the use of legal process to force from the lips of the accused individual the evidence necessary to convict him * * *.' United States v. White, 322 U.S. 694, 698, 64 S.Ct. 1248, 1251, 88 L.Ed. 1542. As we recently stated in Miranda v. State of Arizona, 384 U.S. 436, 461, 86 S.Ct. 1602, 1620, 16 L.Ed.2d 694, 'In this Court, the privilege has consistently been accorded a liberal construction.' It is in that tradition that we overrule Cohen v. Hurley. We find no room in the privilege against self-incrimination for classifications of people so as to deny it to some and extend it to others. Lawyers are not excepted from the words 'No person * * * shall be compelled in any criminal case to be a witness against himself'; and we can imply no exception. Like the school teacher in Slochower v. Board of Higher Education of City of New York, 350 U.S. 551, 76 S.Ct. 637, 100 L.Ed. 692, and the policemen in Garrity v. State of New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562, lawyers also enjoy first-class citizenship.
The Court of Appeals alternately affirmed the judgment disbarring petitioner on the ground that under Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787, and the required records doctrine he was under a duty to produce the withheld records. The Court of Appeals did not elaborate on the point; nor did the Appellate Division advert to it. At the time in question the only Rule governing the matter was entitled 'Preservation of records of actions, claims and proceedings.' It provided that in cases involving 'contingent 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.'
The documents sought in the subpoena were petitioner's daybook, cash receipts book, cash disbursements book, checkbook stubs, petty cashbook and vouchers, general ledger and journal, canceled checks and bank statements, passbooks and other evidences of accounts, record of loans made, payroll records, and state and federal tax returns and worksheets relative thereto.
The Shapiro case dealt with a federal price control regulation requiring merchants to keep sales records. The Court called them records with 'public aspects,' as distinguished from private papers (335 U.S., at 34, 68 S.Ct., at 1393); and concluded by a divided vote that their compelled production did not violate the Fifth Amendment. We are asked to overrule Shapiro. But we find it unnecessary to reach it.
Rule 5, requiring the keeping of records, was broad and general-'the pleadings, records and other papers pertaining to such action, claim and proceeding, and also all data and memoranda of the disposition thereof.' The detailed financial aspects of contingent-fee litigation demanded might possibly by a broad, generous construction of the Rule be brought within its intendment. Our problem, however, is different. Neither the referee of the inquiry, nor counsel for the inquiry, nor the Appellate Division of the New York Supreme Court questioned the applicability of the privilege against self-incrimination to the records. All proceeded on the basis that petitioner could invoke the privilege with respect to the records, but that the price he might have to pay was disbarment. The Court of Appeals was the first to suggest that the privilege against self-incrimination was not applicable to the records. Petitioner, however, had been disbarred on the theory that the privilege was applicable to the records, but that the invocation of the privilege could lead to disbarment. His disbarment cannot be affirmed on the ground that the privilege was not applicable in the first place. Cole v. State of Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644. For that procedure would deny him all opportunity at the trial to show that the Rule, fairly construed and understood, should not be given a broad sweep and to make a record that the documents demanded by the subpoena had no 'public aspects' within the required records rule but were private papers.
Reversed.

## Notes

* ↑ 'Order affirmed on the authority of Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156, 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 records required by law to be kept by him. Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453; Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787.' 16 N.Y.2d 1048, 1050, 266 N.Y.S.2d 126, 127, 213 N.E.2d 457-458.
* ↑ Kimm v. Rosenberg, 363 U.S. 405, 80 S.Ct. 1139, 4 L.Ed.2d 1299, much relied on here, was a five-to-four decision the other way and accurately reflected the pre-Malloy v. Hogan, construction of the Fifth Amendment. We do not stop to reexamine all the other prior decisions of that vintage to determine which of them, if any, would be decided the other way because of 'the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty * * * for such silence,' as declared in Malloy v. Hogan, supra, 378 U.S. at 8, 84 S.Ct. 1493. (Italics added.)
* ↑ Whether a policeman, who invokes the privilege when his conduct as a police officer is questioned in disciplinary proceedings, may be discharged for refusing to testify is a question we did not reach.
* ↑ Rule 5 of the Special Rules of the Second Dept., Appellate Division. Rule 5 was subsequently amended and renumbered as Special Rule IV(6). See Civil Practice Annual of New York 9-24 (1964).
* ↑ Counsel for respondent conceded on oral argument that the subpoena was broader than Rule 5:
'Q. Is this subpoena coextensive with the provisions of the order about keeping the financial records or does the subpoena go beyond?
'A. I would say in my judgment it goes beyond. * * * There is room for reasonable argument that some of the items called for in the subpoena might perhaps be argued to not come within the required records I am talking about.
'Q. Would you mind relating those to us? Tell us what those are. * * * Cash disbursements?
'A. I would say do come under the records. * * * I would exclude as not coming within the statute the federal and state tax returns for example. * * *
'Q. How about worksheets * * *?
'A. Worksheets? Out. * * *
'Q. You mean all of item 12 * * * would be out?
'A. Item 12-copies of federal and state tax returns, accountants' worksheets, and all other * * * I do not include them.
'Q. They would all be outside the rules?
'A. Yes.
'Q. But the demand was for records beyond the records that he was required to keep.
'A. (T)he New York Court of Appeals, speaking for the State of New York, says these are required records.
'Q. I suppose that if he produced just the records that were required-that he was required to keep-that that might very well constitute a waiver as to other records.
'A. No, no it would not. * * *
'Q. Why not?
'A. Because if the other records were held not to come within the required records doctrine he would have the privilege to do that, but he has no privilege.
'Q. I am not sure. Are you sure about that? * * * I would say that the common understanding is that if he produces some of the records relating to a given subject matter, that is a waiver of privilege as to the balance of the records relating to the subject matter. Am I wrong about that?
'A. I would not agree with that. It is an argument that could be made but I would disagree with it for this reason. Under the doctrine of Shapiro v. United States, he has no Fifth Amendment privilege as to records that are required to be kept. He does have Fifth Amendment privilege as to records he is not required to keep and also as to refusal to give oral testimony.'
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse