Spevack v. Klein
1967 U.S. LEXIS 2504, 87 S. Ct. 625, 385 U.S. 511 (1967)
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Rule of Law:
The Fifth Amendment's privilege against self-incrimination, as incorporated against the states through the Fourteenth Amendment, protects lawyers in professional disciplinary proceedings from being disbarred for refusing to testify or produce records if such actions would tend to incriminate them.
Facts:
- Jerome Spevack was an attorney admitted to the New York Bar.
- Spevack was served with a subpoena duces tecum during a judicial inquiry into professional misconduct.
- The subpoena demanded that Spevack produce various financial records, including daybooks, cash receipts and disbursements books, checkbook stubs, general ledgers, and tax returns.
- Spevack refused to produce the demanded records and refused to testify at the inquiry.
- Spevack asserted his constitutional privilege against self-incrimination as the sole defense for his refusal.
Procedural Posture:
- A judicial inquiry was initiated in New York to investigate professional misconduct by Jerome Spevack.
- The Appellate Division of the New York Supreme Court ordered Spevack disbarred for refusing to testify and produce records, holding that the constitutional privilege against self-incrimination was not available to him in such proceedings, citing Cohen v. Hurley.
- The New York Court of Appeals affirmed the disbarment, resting its decision on Cohen v. Hurley and the "required records doctrine."
- The Supreme Court of the United States granted certiorari to determine whether Cohen v. Hurley had survived Malloy v. Hogan.
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Issue:
Does the Fifth Amendment's privilege against self-incrimination, as applied to the states through the Fourteenth Amendment, prevent a state from disbarring an attorney for refusing to produce financial records or testify in a judicial inquiry into professional misconduct, where such actions would tend to incriminate him?
Opinions:
Majority - Mr. Justice Douglas
Yes, the Fifth Amendment's privilege against self-incrimination prevents a state from disbarring an attorney for refusing to produce financial records or testify in a judicial inquiry into professional misconduct where such actions would tend to incriminate him. The Court explicitly overrules Cohen v. Hurley, finding it inconsistent with Malloy v. Hogan, which established that the Self-Incrimination Clause of the Fifth Amendment applies to the States through the Fourteenth Amendment. The Court reaffirms that "penalty" in the context of the Fifth Amendment is not limited to fine or imprisonment, but encompasses any sanction that makes asserting the privilege "costly," as articulated in Griffin v. California. The threat of disbarment and the loss of livelihood are deemed powerful forms of compulsion that impermissibly infringe upon the privilege. The Court states that the privilege protects lawyers just like any other individual, asserting there is "no room...for classifications of people so as to deny it to some and extend it to others." Regarding the state's reliance on the "required records doctrine" from Shapiro v. United States, the Court found it unnecessary to address this issue. It reasoned that Spevack was disbarred on the theory that the privilege was applicable to the records but invocation led to disbarment; to affirm on the "required records" ground would deny Spevack the opportunity to demonstrate at trial that the rule requiring records was not broad enough to cover the specific demanded documents or that they were private papers, not public records.
Dissenting - Mr. Justice Harlan
No, the Fifth Amendment's privilege against self-incrimination does not prevent a state from disbarring an attorney for refusing to provide information relevant to charges of misconduct, provided no imputation of guilt is drawn from the refusal. Justice Harlan emphasizes the state's legitimate and urgent interest in maintaining high standards for the bar, viewing lawyers as "officers of the court." He distinguishes between penalizing someone for asserting the privilege and denying a status or authority to someone who fails to disclose information necessary to assess their qualifications. Citing Orloff v. Willoughby and Kimm v. Rosenberg, he argues that an individual cannot refuse to disclose relevant information while simultaneously demanding the benefits of a professional status. He notes that the New York courts expressly disclaimed any inference of guilt from Spevack's invocation of the privilege, and the information sought was reasonably related to his fitness to practice. He views the majority's broad prohibition against any "costly" consequence as an unnecessary extension of the privilege that unduly hampers other fundamental public values, suggesting that the proper sanction for potential involuntariness is the exclusion of such materials from criminal prosecution.
Dissenting - Mr. Justice White
No, a state should be permitted to disbar an attorney who refuses to testify about the performance of his professional duty, especially given the protections established in Garrity v. New Jersey. Justice White argues that with Garrity v. New Jersey (decided concurrently), any statements compelled under threat of disbarment would be inadmissible in a criminal proceeding. This protection effectively removes the self-incrimination risk for criminal conviction. Therefore, he sees little "legal or practical basis" for preventing a state from discharging a public employee or disbarring a lawyer who refuses to cooperate in determining their qualifications or performance of public duty, as the primary concern of the Fifth Amendment (criminal conviction) is already addressed. He suggests an "accommodation" similar to Murphy v. Waterfront Comm'n, where the state's legitimate interest in investigating professional misconduct can be pursued without violating the Fifth Amendment when the compelled testimony cannot be used criminally.
Concurring - Mr. Justice Fortas
Yes, Spevack could not be disbarred for asserting his privilege against self-incrimination. Justice Fortas agrees that Cohen v. Hurley should be overruled. He distinguishes lawyers from public employees, stating that a lawyer is not an "employee of the State" and does not have the same responsibility to account for actions as an agent of the State. He argues that a lawyer's special responsibilities as a licensee of the state do not diminish their Fifth Amendment rights. He notes that while a policeman, as a public employee, might be discharged for refusing to testify about official conduct, Garrity v. New Jersey would prevent that testimony from being used in a criminal proceeding. Justice Fortas also concurs with the majority that the "required records doctrine" issue is not properly presented in this case, though he expresses openness to re-examining the scope of Shapiro v. United States in an appropriate future case.
Analysis:
Spevack v. Klein significantly strengthened the application of the Fifth Amendment's privilege against self-incrimination to state proceedings, particularly professional disciplinary actions. By explicitly overruling Cohen v. Hurley and reiterating the "costly" penalty standard from Griffin v. California, the Court established that a state cannot compel an individual, including a lawyer, to choose between self-incrimination and losing their livelihood. This decision has broad implications for all licensed professionals, ensuring that the Fifth Amendment's protections are not diluted by threats of professional sanction and reinforcing the principle of uniform Fifth Amendment rights for all citizens, regardless of profession.
