COHEN v. HURLEY
Legal provision: Due Process
Argument of Theodore Kiendl
Chief Justice Earl Warren: Number 84, Albert Martin Cohen, Petitioner, versus Denis M. Hurley.
Mr. Theodore Kiendl: May it please the Court.
This case is here on certiorari to review a decision of the Court of Appeals of the State of New York, which affirmed an order of the Appellate Division in the Second Department of the Supreme Court of the State of New York, disbarring the petitioner from the further practice of the law.
In the Court of Appeals, the opinion of that Court was written by the Chief Judge.
There was one dissent in a separate opinion by Judge Fuld in the Appellate Division of the Second Department where the disciplinary proceeding originates in which had power and control over the bar.
The opinion was written by Mr. Justice Baldock and there was one dissent by Mr. Justice -- Mr. Justice --
Unknown Speaker: Kleinfeld
Mr. Theodore Kiendl: -- Mr. Justice Kleinfeld -- and an indication by the presiding justice in the concurring opinion with the -- the Court's opinions that he entertained some reluctance in reaching the conclusion to go with the majority in that case.
Now, the amended remittitur shows clearly, as we see it, that the federal constitutional question was raised and necessarily disposed off in the Court of Appeals.
Your Honors will see at page 96 of the transcript of record, the Amendment to the remittitur in which it was stated amongst other things that upon the appeal herein, they were presented and necessarily passed upon questions under the Constitution of the United States quoting them and then concluding the Court of Appeals held that the rights of appellant, petitioner here, under the Fourteenth Amendment had not been violated.
Now, our case is somewhat different from the two cases that proceeded and that there's nothing here involving any question about Communist membership, subversive activities or anything of that kind, violent overthrow of the Government by force and violence.
This is a case involving an attorney.
And the facts are virtually uncontradicted and so far as this Court is concerned, we think conceded.
We may draw different inferences from some of the facts but essentially, the basic term and the facts in this case are undisputed.
And if I may, I'd like to briefly summarize them.
The petitioner was admitted to practice in the Supreme Court of the State of New York in the year 1922, almost 38 years ago.
He specialized in the practice of negligence law, taking personal injury cases and death cases on contingency basis.
And he continued that practice right up to the time that this disbarment order was entered a year or so ago since it's been stayed by an order of this Court.
Now, in the course of his practice, he was compelled under the rules of that Court improperly to file statements of the retainers that he accepted in these personal injury cases.
If you'll entertain more than five such cases in a year, you had to file written reports with the Appellate Division and this was done -- and this record shows that during the course of a period of five years from 1954 to 1958 inclusive, he had filed some 300 of retainers or an average of some 60 a year in this specialty in which he was engaged.
There came a time when the Appellate Division in the Second Department for reasons that we're satisfactory to it, ordered a judicial inquiry into practices existing in the bar and the borough of Brooklyn, the County of Kings.
Those practices we might call "ambulance chasing" practices for want of a better word.
And the inquiry started in the subpoena duces tecum was served on this petitioner.
Subpoena called for the production of all his books and records pertaining to these retainers.
It also called for his attendants as a witness.
And he attended before there was inquiry which was being conducted by an additional special term of the Supreme Court but had been delegated for that purpose by the Appellate Division of the Supreme Court.
He attended and was asked various questions.
He was asked to produce his books and records including his bank accounts and things of that kind.
He was asked some 60 different questions, touching along and relevant to unquestionably the professional -- his professional conduct in some of these retainer cases.
There's no doubt the relevancy of the question, and no doubt about the propriety of the injury.
But he took the position on the advice of able and experienced counsel.
And in the utmost good faith that under the Constitution of the United States and the Constitution of the State of New York, he was entitled not to become a witness against himself, treated the doctrine -- the privilege of self-incrimination, refuse to answer, refuse to produce these records.
Now, the only answered questions were of this nature and I summarized them from the respondent's brief, page 7.
The only answered questions related to the identity of his law office, partners and so forth to his possession of the record, to any possible destruction of the records to his bank accounts, to his paying off police officers, caught or prison employees to his paying insurance company employees and promising to pay the laid persons 10% of recoveries or settlements.
That was the type of questions that were answered, that he refused to answer.
Justice Felix Frankfurter: Mr. Kiendl, you indicated that these questions -- that the claim was partly based on the Fifth Amendment and not merely the -- the New York privilege against self-incrimination.
Mr. Theodore Kiendl: No question about it at all.
It was based --
Justice Felix Frankfurter: Would you mind just -- just reading his under faith?
I don't think quite see that these -- on the faith of the subject matter of these questions related to -- to potential federal offenses.
Mr. Theodore Kiendl: In the Amendment to the remittitur, if I may quote it rather than attend to paraphrase it, Your Honor, which appears at page 96 with this record.
The statement is made upon the appeal herein.
They were presented and necessarily passed upon questions under the Constitution of the United States.
The appellant asserted that his disbarment based solely upon his reliance in good faith and his constitutional privilege against self-incrimination in a nonadversary proceeding without any substantive charges of misconduct being made or proven against him at a full hearing where the right of confrontation and cross-examination of witnesses and full and ample defenses would be available was violated of due process of law under the Fourteenth Amendment and that his disbarment based on his assertion in good faith of his constitutional privilege against self-incrimination which the Appellate Division held constituted or refusal to cooperate with the Court and a breach of the Canon of Ethics violated his guarantees of due process of law under the Fourteenth Amendment.
The Court of Appeals held that the rights of appellant under the Fourteenth Amendment had not been violated.
Justice Felix Frankfurter: Well, is that -- am I to infer from that that you are arguing or at least assuming that the Fifth Amendment is to be read into the Fourteenth?
Mr. Theodore Kiendl: No, if Your Honor please.
Justice Felix Frankfurter: Then I repeat my question.
On the face of it, the things that you -- the subject matter of the questions that you read from -- on page 7 of the respondent's brief, they don't obviously seem to me to relate any danger of being prosecuted on any federal law.
Mr. Theodore Kiendl: Well, if Your Honor please, our position is this.
That the question of which is essentially presented here is this.
Did the State violate due process?
In summarily, disbarring an attorney from the further practice of his profession, who relies on his constitutionally guaranteed right against self-incrimination --
Justice Felix Frankfurter: Given by --
Mr. Theodore Kiendl: -- in good faith.
Justice Felix Frankfurter: Yes.
Given by the State Constitution as well as the Federal Constitution.
Mr. Theodore Kiendl: Unquestionably, Your Honor.
Justice Felix Frankfurter: But -- and my -- well, I can understand that -- that he brings himself under jeopardy under the state guarantee -- against self-incrimination.
I don't -- under faith that they see how he comes within the scope of the protection of the Fifth Amendment.
Justice William O. Douglas: Did some of this relate to bank -- bankruptcy proceedings or bankruptcy matters?
Mr. Theodore Kiendl: Not at all.
Entirely, the personal injury negligence cases --
Justice Felix Frankfurter: Alright.
Mr. Theodore Kiendl: -- which he specialized.
We submit that that is the one and the sole question and the narrow question presented to this Court.
And we submit that due process was violated in this case by the arbitrary exercise of the courts of his right to censor, suspend, disbar and so forth members of the bar.
Now, we must admit very frankly to this Court that neither the respondents nor the court below agreed with us on a court that that was the simple question presented.
The court below took an entirely different view of it in one which we think was wholly unjustified.
It was arbitrary, that was capricious that one had no rational basis to support it.
The court below -- the respondent below went off into this line of reasoning.
Say they, "Here is a lawyer who, from the very time that he's admitted to practice law, owes the absolute and vital duty to the court, to the public, to the bar of frankness and candor in full cooperation, that he's entitled to every constitutional right including due process under the Fourteenth Amendment, that when he took the position that he will refuse to answer on the ground of self-incrimination, he was perfectly within his rights.
He has the absolute right.
He has the perfect right to plea that privilege.
But he did so at the parallel, at the danger of committing professional suicide, that's what it was tantamount to.
Of course, I'm familiar with the decisions of the courts.
The disbarment of an attorney is not punishment.
I'm familiar with the fact that it's not a penalty of forfeiture in the accepted sense.
But the consequences to the disbarred lawyer, is just as bad as if he cuts his own professional growth.
Now, they say that the attorney who comes before a judicial inquiry into ambulance chasing and refuses to answer this type of question does not possess the character and fitness to the requisite for admission to the Bar in the State of New York.
And that his complete cooperation must be continuously given as long as he remembers -- remains a member of that profession.
We think the situation has summed up succinctly and completely in one sentence of the dissenting opinion in the court of original jurisdiction.
Mr. Justice Kleinfeld there stated, and I read from page 96.
I'm afraid I have the wrong page, Your Honor.
I'll find it in just a minute.
Sorry, it takes so long.
Justice Felix Frankfurter: Go ahead.
Unknown Speaker: It begins at 77.
Mr. Theodore Kiendl: 77?
Unknown Speaker: Yes.
Mr. Theodore Kiendl: Yes, it should be page 77.
And I have it now.
Mr. Justice Kleinfeld there said, at the bottom of the page, "Despite all disclaimers to the contrary, respondent is being disbarred for pleading his privilege against self-incrimination."
And we say there's no escape from that conclusion when this record is read by this Court.
That's the one and the only reason why he was disbarred.
They call it a refusal to answer questions -- but the refusal to answer questions were implicitly the invocation of the constitutional right against self-incrimination.
They are so unutterably and inextricably interwoven that they are substantially one in the same thing.
And to say that a member of the bar may exercise a constitutional right not to become a witness against themselves should be disbarred ipso facto per se for taking that position to us seems to be entirely wrong and it's a denial of due process and an arbitrary denial which warrants the intervention of this Court to correct that situation.
Now, what do they say about the consequences that would ensue?
They predict that dire consequences would happen if a lawyer in the position of this petitioner were permitted to standby, refused to answer questions, refused to produce records that it would hobble and prejudice and impair the possibility of the Court through its duly accredited agent, the Supreme Court additional special time, from cleaning the professional house impertinently from ensuring the non-existence of illegal practices, unethical practices that this Court would be stopped, powerless, impotent is the word that they used in once sense.
We say that's not at all so.
And that's merely driving a red herring across the trail.
There were two avenues of approach that were available to this inquiry that they could have used and used effectively without going through this summary process of disbarment solely for the exercise of a constitutionally guaranteed privilege.
The two things they could've done was this.
When he was called before the Committee -- I'm sorry, I said Committee.
I was thinking of the last case, called before the -- the inquiry.
He was told that this was not an adversary proceeding, that he was not a defendant, that he was not a respondent that he was not being charged with anything.
But that, the inquiry had in its possession information which indicated his participation in professional misconduct, that's what he was told.
And when he was confronted with that information, he took the position he did take.
Now, if the inquiry had that information and it was available, they were empowered and authorized and had full authority to go along with the proposition of bringing a disciplinary proceeding against the petitioner, trying it in use -- usual way and plenary fashion giving him all the safeguards that he was entitled to under the Due Process Clause and protect the court, the bar and the public against these very dire consequences that they have predicted to be otherwise in the suit.
But they had an even more important possibility.
In connection with the inquiry that was being conducted by this addition of special time, they were parallel with that inquiry, grand jury proceedings.
And in the grand jury proceedings, this petitioner could've been called by serving him with a subpoena to appear before a grand jury and compel to answer questions of the very character which were asked in -- at this inquiry, compelled to produce the very documents.
Would he -- they asked him to produce under the subpoena duces tecum at the inquiry.
And if he refuse to answer those questions and refuse to produce those documents, under the law of the State of New York beyond any doubt, he would've been in contempt if he refused to answer.
He would've been subject to imprisonment.
He would've been subject to disciplinary process.
Justice Felix Frankfurter: He couldn't have -- could he not have invoke the same privilege before the grand jury -- in refusing to answer grand jury question?
Mr. Theodore Kiendl: He could, Your Honor, but if the grand jury gave him complete immunity as they did and do, then he was in the position that I've outlined.
Justice Charles E. Whittaker: Well, do you think is that to argue, sir -- is -- is that to argue that the grand jury maybe used for the investigation of civil manners?
Mr. Theodore Kiendl: This wasn't really a civil manner and they accept the sentence, but in any event, the grand jury was used in this very investigation, in this particular matter, not as against this particular petitioner but as against other, and we cite the case that I'm coming to later, In re Cioffi, I think it's pronounced, C-I-O-F-F-I, where the grand jury did ask questions to the man who was somewhat in similar situation.
Justice Charles E. Whittaker: You don't argue that the bar in cleaning its house, its own house, may resort to grand jury proceedings, do you?
Mr. Theodore Kiendl: We maintain that under the situation that existed in this case, this particular inquiry set up by the Appellate Division whom we're dealing of an additional special time, had the right to be paneled the grand jury to make such investigation that was necessary and that it did serve in this particular situation in cleaning its own house, in awarding his dire consequences and continue ambulance chasing, solicitations, payment of fee, (Inaudible), and things of that kind.
I'll mention that case a little later on if I may Your Honor but I'll try definitely not to forget it.
Now, if those disastrous consequences were not ensued, we realize that we're not using lawfully expression home free at all.
We're still met with the line of cases in this Court, seem so extensively argued both orally and in writing in the last two or three years.
I refer to the line of cases beginning with Lerner, running through Bilo -- Beilan, and Nelson, and Globe, and cases of that character.
All those cases had been argued today, cases that arose under states statutes or constitutions.
There, the refusal to answer, were despite statutory legislative enactments requiring the employees, the public employees to give answer to those questions at the pain of dismissal.
And we say that they're radically different.
It's been argued here this afternoon from the situation involved so far as an attorney is concerned.
And we not only say that, but we say there's respectable authority sustaining it.
We think it's implicit in the decision of this -- this Court in those very sharply divided opinions that the basis, the inherent basis of the decision sustaining the dismissal of the teacher, of the policeman, of the subway worker was all because of the relationship of master and servant, employer or an employee.
And we cite three cases that we think squarely support that from other courts.
First, we cite the case, Supreme Judicial Court of Massachusetts where that Court was asked by the Legislature of that State to render an advisory opinion I'm about to propose about the constitutionality of the proposed bill that made it mandatory, give authority to dismiss teachers, both public and private, if they refuse to answer questions regarding communistic or sub -- subversive activity.
And in that case, unanimous, Supreme Judicial Court of Massachusetts decided that it would be definitely unconstitutional if private teachers were brought into the same category with public teachers.
That -- the two situations were radically different.
And they used the word "perfectly obvious".
It was perfectly obvious that the cases were different.
In the Supreme Court of Illinois, courts refused to disbar a lawyer who took the advantage of his constitutional privilege and differentiated that case from the case of a policeman, public employee.
And in the famous case of Sheiner in Florida, a situation almost analogous to this case at bar, was presented in the Supreme Court of Florida to refuse to disbar a lawyer who took advantage of one of his constitutional rights.
And after the case was originally decided by the Supreme Court of Florida, this Court decided the cases that I've referred to.
And on the petition of the Bar Association, Supreme Court of Florida was asked to review its decision in the Sheiner case in the light of the impact of the decisions of this Court and it did review its decisions in the former case, its decision in the former case in the light of the decisions here and reached precisely and exactly the same conclusion that this Court's rulings on those cases were not finding on an attorney who took advantage of the constitutional privilege.
There were two more matters that I want to refer to and I should start.
You cite the Gray and Ellis cases in the appellate -- in the Court of Appeals in the State of New York as authority for the proposition that we were entitled to take advantage of our constitutional rights even as a lawyer.
The Court of Appeals in its opinion by its Chief Judge rather apologetically referred to those cases as we read his opinion.
He said this, and I read from page 87.
Justice Hugo L. Black: Page what?
Mr. Theodore Kiendl: 87.
The appellant's reliances on matter of Gray and matter of Ellis, matter of Sullivan and matter of Coffenberg, the four cases in the Court of Appeals in the State of New York.
None of those decisions control us here.
The precise question in Gray and Ellis was as to whether a lawyer who offered to answer all pertinent questions could be compelled in such an investigation to waive immunity and advance a question.
The holding in each case was that the lawyer, like every other citizen, is constitutionally privileged not to answer damaging question.
The difference between those cases and the present one may seem slight but it is enough to permit a fresh examination of the question now directly presented.
We think when Your Honor reads the decision in those cases, you will see that the distinction, the difference was not slight that there was no real substantive difference between those cases and the case at bar.
Here is the situation that has tremendous importance to all members of the bar everywhere.
It's a case of far-reaching effect that's tantamount if this Court sustained the decision of the state courts to a holding that the State can compel lawyers to be witnesses against themselves.
It is tantamount to a holding that a lawyer is not a citizen the same as every other citizen in the United States but as one court below said assumption, a second grade citizen.
Is respondent taking the position?
The respondent taking the position on the other hand that lawyers or super citizens, that they're "citizens plus" is the expression that they used and they're held to a much higher state of answerability or responsibility than the school teacher or the subway employee.
All this regardless of the fact that in this case, so far as this record, it appears, here is a lawyer of exemplary character until this situation came up for 37 years, a lawyer who has an unblemished record at the bar, a lawyer who has been a legislature -- legislator, a lawyer who was running for judicial office and has been endorsed as qualified after these things had happened by three major bar associations of the City of New York.
Now, we say that in that situation, it was nothing short of being arbitrary for the state courts to disbar him for exercising his constitutional rights.
We point out in our brief one case that I wanted to refer to because of a question that has asked me by Mr. Justice Whittaker and that is the Cioffi case.
At page 8 of our reply brief, we discussed that case somewhat.
In the Cioffi case, Cioffi was called before a grand jury, as I have indicated, in connection with this judicial investigation in the ambulance chasing and took the position that he would refuse to answer questions because of the fact that he wasn't granted the full immunity that he was entitled to.
The courts disagreed with him.
And he was held in contempt.
He took the case in the Appellate Division.
The Appellate Division sustained the lower court.
He took it to the Court of Appeals.
The Court of Appeals sustained the lower court and held the grand jury had given him full immunity, everything that he was entitled to by a pleading to defend himself -- the privilege of self-incrimination.
We cite that case as authority for a proposition on that page and the respondent says, "That's not so at all, that we're citing a case which completely demolishes our thesis."
At page 8 of our reply brief we referred to it.
That is the case of In re Cioffi.
And he says that as result of the position taken by Cioffi in that case, the District Attorney was blocked as -- the inquiry was blocked in this case quite the contrary as the fact.
As a matter of fact, in the Cioffi case, when that case went through the Court of Appeals and the Court of Appeals determined that he had gotten full immunity in the grand jury proceeding.
Mr. Cioffi came back and testified and testified fully and I think he's even now testifying in the course of this inquiry so that the dire prediction of what would happen if they resorted to grand jury proceedings in that case, it's just the opposite of what they contend.
Now, we conclude with just this statement.
And I want to attempt to paraphrase the very language of Mr. Justice Frankfurter in the Schware case.
Justice Hugo L. Black: In what case?
Mr. Theodore Kiendl: Schware, S -- I think, it's pronounced Schware, S-C-H-W-A-R-E.
There, Mr. Justice Frankfurter -- I'll find it in just a second.
I seem to have trouble finding the right brief."
To hold as the Court did that Communist affiliation for six to seven years up to 1940, 15 years prior to the Court's assessment of it, in and off itself made the petitioner a person with questionable character is so dogmatic in inference as to be wholly unwarranted."
Paraphrasing that language to the situation in this case, we submit that the whole as the courts below did that the exercise of a guarantee, constitutional privilege in and of itself made the petitioner forfeit his right to practice law is so dogmatic in inference as to be wholly unwarranted.
We submit that this decision below was wrong that it should be reversed by this Court.
Chief Justice Earl Warren: We'll recess now, Mr. --
Argument of Denis Hurley
Chief Justice Earl Warren: Albert Martin Cohen, Petitioner, versus Denis M. Hurley.
Mr. Hurley, late yesterday afternoon.
Mr. Kiendl asked if he could -- if he could be excused from appearing today and because he had finished his time and I thought it would be commentating my -- I said it would be alright for him not to be present.
Mr. Denis Hurley: I'm sure that'll create no problem --
Chief Justice Earl Warren: Yes.
Mr. Denis Hurley: -- Your Honor, Mr. Chief Justice and -- and members of the Court, may it please the Court.
In connection with Mr. Kiendl's leaving yesterday I said I would readily consent to what he did say that he wished he could stay here to hear my argument so he could keep me within the bounds of fairness but he said if he left, he felt that I would have to even more fair because this Court would move and then protect him.
This is the fifth time that a problem arising in this judicial inquiry in Kings County, New York has come before this Court, the second time that oral argument has been permitted.
Therefore, I -- I mention that because I think therefore I need not dwell on the nature of this judicial inquiry or its scope or its purpose.
Indeed, I think Mr. Kiendl yesterday made a very fair summary statement of the background of the inquiry and of the facts in this particular case.
In the light of yesterday's argument by Mr. Kiendl, I think there are just a few points that I would like to touch on and -- and clear up.
One, the Appellate Division of the Supreme Court of the State of New York is the Court that's vested with a plenary power by statute and inherent power as -- as it has been ruled over the admission and the discipline of lawyers.
And in that connection, I would like to say in answer to a question that was asked yesterday that the Appellate Division has nothing to do with the grand jury, nothing to do with any grand jury investigation.
It has no power to impanel a grand jury or to direct a criminal investigation.
That in New York and particularly in the City of New York and Kings County is for the county court which has criminal jurisdiction and is handled by the District Attorney who is an independent elected public official and not strictly subject to the Appellate Division.
Chief Justice Earl Warren: Does the District Attorney play any part in these matters?
Mr. Denis Hurley: In -- he -- he -- even before this judicial inquiry started, the District Attorney was conducting on his own a so-called ambulance chasing investigation into corrupt -- alleged -- allegedly corrupt lawyers.
That's absolutely independent of the judicial inquiry.
Chief Justice Earl Warren: He -- he wasn't present at any of these hearings or --
Mr. Denis Hurley: At -- at --
Chief Justice Earl Warren: -- took no part?
Mr. Denis Hurley: None.
As a matter of fact, he -- he's -- he's conducted his own investigation proceeded against lawyers on his own.
And then in some few instances on the recommendation of the Justice presiding at the judicial inquiry, the Appellate Division has referred some of these matters arising out of the inquiry to the District Attorney for possible criminal proceedings.
But once he gets in the hands of the District Attorney, we have nothing to do with it.
As a matter of fact, all the judicial inquiry does is investigate and then the Justice presiding reports to the Appellate Division and the Appellate Division either takes no action or it recommends disciplinary action or it recommends criminal action in which event the matter goes to the District Attorney and then it's entirely up to him.
So that there's no investigation as such by us into crime.
That's in another problems.
The Appellate Division Inquiry called the judicial inquiry here is mainly into so-called "ambulance chasing" in the all accepted sense of that term and it's into unethical conduct of lawyers violation of the rules of court which prime facie constitute professional misconduct, inquiry into the Canons of Ethics as to whether there's been any violation and only incidentally into crime.
I'll come to a case later, the leading case in New York on this matter People ex rel. Karlin against Culkin where the opinion was written by Chief Judge Cardozo.
And he points out the distinctions between the judicial inquiry and a particular investigation into crime.
In other words, sometimes, we hid upon crime but most of the offenses are less than criminal, less than penal.
Now, the next point that was raised yesterday is the question of the ground upon which this lawyer predicated his refusal to answer.
Now, the refusal of the attorney in this case to answer questions was grounded upon the state constitutional privilege against self-incrimination.
That's Article 1 Section 6 of the New York State Constitution and not under the Fifth Amendment of the Constitution of the United States.
Justice John M. Harlan: I thought he raised both, Mr. Hurley.
Mr. Denis Hurley: No.
Well, he -- he raised -- if Your Honor would care to look at the record, page 61 and 62, there's the whole answer of the lawyer to the petition for the discipline.
And on page 61, he answers the -- the petition which contain the specifications by admitting the first 22 paragraphs of the petition.
He denied paragraph 23rd which is the paragraph where we say that by his refusals to answer, he breached his inherent duty as a lawyer.
He wasn't candid and frank with the Court and he frustrated the Court in its inquiry.
Then he goes on and affirmatively alleges an affirmative defense, which I take to be the soul issue in this matter.
And under that affirmative defense, he pleads his right to self-incrimination under this New York State Constitution.
That's the top of page 62.
He cites the cases of the Court of Appeals up to that time that he relies on and then he says that there's been a denial of due process to him in violation of his rights under the Constitution of the State of New York and under the Fourteenth Amendment of the Constitution of the United States, claiming also a penalty hardship and forfeiture and also the last paragraph that the right to practice law is a right of liberty and property protected by the Fourteenth Amendment of the Constitution of the United States.
Nowhere is there any allegation either in the pleading or in the testimony of -- of the Fifth Amendment.
And also in answer to a question yesterday, we do not investigate federal crimes.
This is a state inquiry by the Court and there's no such claim of federal crimes asserted anywhere in this case.
Now, on -- on that score and in opposing the grant of certiorari in this case, we conceded that the petitioner had asserted the claim of depravation of due process under the Fourteenth Amendment.
But, as I've said, he made no claim under the Fifth Amendment.
The Court of Appeals in its amended remittitur conceded also petitioner's assertion of depravation of Fourteenth Amendment due process but held that his rights had not been violated.
Therefore, in opposing the grant of certiorari in this case, we argued one, that the non-federal grounds upon which the New York courts rely were entirely adequate to support the final order of disbarment and two, the petitioner's claim of depravation of Fourteenth Amendment due process is insubstantial.
So that the question that was actually resolved here, as I see it, as the opinions of the courts, I think, very clearly demonstrate, the question that was actually resolved was whether there was any conflict between the New York statute namely Section 90 of the judiciary law pertaining to disciplinary proceedings of lawyers and the provision of the New York State Constitution against self-incrimination.
That was the soul question that was determined by the courts of New York.
Now, in this connection, I would like to emphasize because I think this is a question that's related to some of the other matters that have been before this Court and were argued only yesterday, Anastaplo and Konigsberg that in New York, the underlying question in this case was decided 32 years ago in 1928 by the Court of Appeals and that's the opinion I referred to a minute ago by Chief Judge Cardozo where a lawyer was held in contempt of court for refusing to answer proper legal questions in New York's first judicial inquiry.
Now, the lawyer there did not plead self-incrimination but he attacked the whole judicial inquiry.
He said that there was no power in the Court to conduct such an investigation into lawyers and that there had to be charges -- complaints and charges and so on but a general preliminary investigation, he claimed, could not be conducted.
So therefore, he refused to be sworn and he refused to testify.
And he was held in contempt for refusing, the bare refusing to testify in that landmark case.
Justice Potter Stewart: It wasn't a disbarment case, was it?
Mr. Denis Hurley: No, this was -- this arose in the preliminary investigations.
Justice Potter Stewart: (Voice Overlap) --
Mr. Denis Hurley: The lawyer was called as a witness.
He refused to talk.
Justice Felix Frankfurter: Mr. Hurley --
Mr. Denis Hurley: Yes, Your Honor.
Justice Felix Frankfurter: -- Judge -- Judge Fuld refers to is the Culkin case, which all of us New York lawyers well know in saying that their -- that cooperation is a requisite because the lawyer's duty was subject to his right to claim privilege.
Mr. Denis Hurley: That's true, Your Honor, but there, the lawyer hadn't claimed it so it seem to me that that was unnecessary to the decision --
Justice Felix Frankfurter: Well --
Mr. Denis Hurley: -- but -- but I go further even though it was probably unnecessary because it hadn't been claimed.
Nevertheless, Judge -- Chief Judge Cardozo did say he had to answer subject to his privilege.
Justice Felix Frankfurter: The reason that I put it to you is because that case -- in that case, he laid out a rather comprehensive view.
Mr. Denis Hurley: Yes, indeed.
And -- and I -- I think I -- I like to, if I may, come to it in order but --
Justice Felix Frankfurter: (Voice Overlap) --
Mr. Denis Hurley: -- to say now in answer to your question, Your Honor, that I think that our case is perfectly consistent with that case because the Court made a distinction between the lawyer coming as a witness as a citizen and as a lawyer.
And as a citizen, he could invoke his privilege but as a lawyer, since he refused to obey the mandate of the Court to answer its questions, he forfeited his -- his membership in the bar.
In other words, the -- our case is really an extension, therefore, of the Karlin case and I think perfectly in line with it and perfectly consistent with the Karlin case.
But I did want to --
Justice Felix Frankfurter: In Culkin, you might also say, of course, that's a New York State question.
Mr. Denis Hurley: Yes, indeed.
Justice Felix Frankfurter: I mean that -- even assuming -- even assuming that they could -- Chief Judge Cardozo's statement, they're literally.
He was talking about the claims that could be made under New York's -- under the New York --
Mr. Denis Hurley: Under New York law and under New York State Constitution, yes, indeed.
Justice Felix Frankfurter: But federal question didn't come into play there at all, did it?
Mr. Denis Hurley: No, it wasn't -- it wasn't in the case.
But I think it's most interesting in the light of the claim that's made here that there, we have the law on the refusal of a lawyer to talk to the Court that admitted him and the Court that has disciplinary power over him in -- in its investigation into the conduct or misconduct of lawyers that there, we have that case which has been the law of New York for 32 years.
But not only that, Judge Cardozo, in that case, as Mr. Justice Frankfurter has indicated, and we all well know, he traced the history of the Court's supervisory control over lawyers back to the New York State Constitution of 1777.
And beyond that, for over 300 years to England and to the authority of the Inns of -- of Court over lawyers and then the Inns of Court intern visited by the judges and of course, as we know in the history of that, Mr. Judge Cardozo's so-called a scholarly points out even as to the cut of the beard and -- and the clothes that the -- the lawyers wore so that the -- the question of the refusal to answer, according to Chief Judge Cardozo, went back over 300 years in England and then was incorporated in the Constitution of the State of New York in 1777.
So that until now, we haven't had a lawyer refused to answer a question put by the Court in an inquiry by the Court into the prevalence of unethical conduct.
But it said now that this case is different because this attorney based his refusal to answer upon the plea of self-incrimination in reliance upon the New York State Constitution only.
That I say is a state question.
But the courts of New York have refused to recognize that claim difference.
And they've held that an attorney's refusal to answer, no matter what the ground, is a breach of the attorney's inherent duty to the Court.
It's an obstruction of the Court's investigation and it's a defiance of the Court's plenary power and control over lawyers.
And that in refusing to answer, the lawyer frustrates the investigation and renders the Court impotent to perform its statutory and inherent responsibilities in the cleansing of the bar and in the disciplining of lawyers.
Now, in reaching that conclusion, as I see it, the courts of New York were meticulous in pointing out that the attorney was not deprived of his constitutional guarantee against self-incrimination.
Indeed, the right to invoke his privilege was upheld and -- and sustained in all three courts of New York that the additional special term at the Appellate Division and in the Court of Appeals.
Therefore, New York ruled that this attorney was a court of the fullest measure of his constitutional guarantee against incriminating himself by his own testimony.
The New York State Constitution guarantees nothing more than self-protection against self-incrimination.
It doesn't guarantee that he may not be subject to indictment, prosecution or conviction through the testimony of other persons nor does the Constitution guarantee that he may defy the authority of the courts in its proper investigation or that he may not be disciplined for remaining silent when it is his special duty as an officer of the Court to speak out forthrightly with candor and frankness in response to the Court's judicial inquiry into misconduct at the bar.
Yes, sir --
Justice William J. Brennan: Mr. Hurley, may I ask now, if he talks a -- his evidence proves to be incriminatory --
Mr. Denis Hurley: Yes, sir.
Justice William J. Brennan: -- he then to indict and prosecute?
Mr. Denis Hurley: Yes, it maybe, Your Honor.
Justice William J. Brennan: It's a rather a dilemma, isn't it?
Mr. Denis Hurley: It is a dilemma.
But the courts of New York have said it's -- it's a dilemma.
Justice William J. Brennan: If he doesn't talk, he is disbarred.
If he does talk, he goes to jail (Voice Overlap) --
Mr. Denis Hurley: Where -- where he chooses -- where he -- where he's -- where he's forced into this choice and he either -- he either uses his right as a citizen and claims his privilege and refuses to talk or he speaks up as a lawyer should, as a lawyer should and he takes whatever punishment is coming to him on the basis of what he has done.
That seems to be -- to be the result of the -- of the attitude of the courts of New York on the subject.
In other words --
Justice John M. Harlan: What do you -- oh, I beg your pardon.
Mr. Denis Hurley: Yes Your Honor.
Justice John M. Harlan: What do you conceive to be the federal question of the Court of Appeals that is passed on or submitted to?
Mr. Denis Hurley: Well, I didn't want to say anything about that.
I -- I doubt if there's a federal question here.
We vigorously oppose the grant of writ.
Justice John M. Harlan: Could New York repeal its privilege, state privilege against self-incrimination consistently with the Federal Constitution?
Mr. Denis Hurley: Could it repeal it, Your Honor?
I think so.
I think it could.
I think that is a problem that has been discussed and talked about.
I don't think it has to be part of the State Constitution.
Justice Felix Frankfurter: It wasn't until relatively --
Mr. Denis Hurley: That's right, Your Honor.
Justice Felix Frankfurter: -- recently.
There is (Inaudible) I forgot to what within --
Mr. Denis Hurley: I -- I don't --
Justice Felix Frankfurter: -- not until (Voice Overlap) --
Mr. Denis Hurley: I don't recall the year when it --
Justice Felix Frankfurter: (Voice Overlap) --
Mr. Denis Hurley: -- was put in but it hasn't always been -- it hasn't always --
Justice Felix Frankfurter: Not only --
Mr. Denis Hurley: -- been in -- in the Constitution.
Justice Felix Frankfurter: -- not only within my -- my lifetime which is an age but -- but much more recently within the lifetime of (Inaudible)
Justice William J. Brennan: Well, still isn't constitutional in my (Inaudible)
Mr. Denis Hurley: In New Jersey?
Is that so?
I didn't know that.
Justice Felix Frankfurter: But Mr. Hurley, in answer to your -- in answer to Justice Harlan's question --
Mr. Denis Hurley: Yes, Your Honor.
Justice Felix Frankfurter: You don't think there's a federal question there.
Mr. Denis Hurley: I -- I think --
Justice Felix Frankfurter: You mean -- you mean that -- you don't think there's a solid federal question but the -- the Court of Appeals said we did consider whether what was done here violated due process under the Fourteenth Amendment.
In other words -- did Mr. Kiendl argue the case there?
In other words, he raised that question that under the Fourteenth, it's violative of a due process because -- possibly because of the dilemma to which Justice Brennan called attention.
They said we did consider whether putting a lawyer in that kind of crouch, that kind of dilemma is -- comes within the general conceptions of due process.
So what you mean is you don't think there's a substantial federal question.
Mr. Denis Hurley: That's -- that's my point.
Justice Felix Frankfurter: But the case comes here on the most authoritative pronouncement by the Court of Appeals that they --
Mr. Denis Hurley: Well, my --
Justice Felix Frankfurter: (Voice Overlap) --
Mr. Denis Hurley: -- well, my problem is whether the -- whether the Court of Appeals simply said as -- as they framed the question in the -- the remittitur, they -- they talked about the appellant having asserted that there was like a Fourteenth Amendment due process.
In other words, there was a claim made --
Justice Felix Frankfurter: And they passed --
Mr. Denis Hurley: -- but --
Justice Felix Frankfurter: -- on it.
Mr. Denis Hurley: -- but clearly did they pass out of the something substantial or -- or not substantial.
Now, if --
Justice Felix Frankfurter: That's why you're arguing but they did say --
Mr. Denis Hurley: But the -- the language --
Justice Felix Frankfurter: -- we have before us the federal question.
We passed on it by rejecting it.
Mr. Denis Hurley: That's right.
Now, I -- I -- frankly, I'm -- I -- I have -- I think this case is of such importance not only to New York but to every State in the union that -- that I've no -- no hesitancy and -- and very readily asking this Court to pass upon on the merits.
I think -- I think that's the attitude of the New York courts.
Now, Judge Baldock said that this was one of the most important questions involving lawyers that have ever arisen in New York.
And until this case is settled, we will have many, many problems in judicial inquiries and otherwise.
Justice Felix Frankfurter: Well, they can't be very heavy.
What you said a minute ago is correct.
This is the first lawyer who refused to answer.
Mr. Denis Hurley: He -- he is the first but immediately upon his refusing, 41 others followed him [Laughter].
So we have -- we have the cases of 41 other lawyers really writing on the results of this case.
Actually, we had -- I think to date, we have about 98 who have -- who have pleaded the privilege.
The second to the lawyers come the doctors.
20 or 42 -- 42 lawyers, 20 are doctors and the others were layman, insurance brokers, insurance employees claims justice and so on.
Justice Felix Frankfurter: They are -- they are all subject to the schedule of peace that the right provision has promulgated, aren't they?
Mr. Denis Hurley: The --
Justice Felix Frankfurter: But --
Mr. Denis Hurley: -- the attorneys?
Justice Felix Frankfurter: Yes.
Mr. Denis Hurley: Oh, yes.
Justice Felix Frankfurter: I mean that -- that's settled now.
Mr. Denis Hurley: Resolved in this Court and --
Justice Felix Frankfurter: (Voice Overlap) --
Mr. Denis Hurley: -- well, it denied certiorari in (Inaudible) yes.
Justice Felix Frankfurter: Anyhow.
That means the Court of Appeals' decision stood.
Mr. Denis Hurley: That's right.
Justice Felix Frankfurter: That they're all subject to it.
Mr. Denis Hurley: All subject to it.
And -- and as a matter of fact that they have just -- that was in the First Department and their rule has now been made uniform in the Second Department, so we have the same rules in -- in both Departments now.
Justice Felix Frankfurter: The -- as I remember that the inherent charge more than 50% unless in an ad hoc proceeding, the circumstances plead the Appellate Division to make an exception, is that right?
Mr. Denis Hurley: That's right.
They -- they --
Justice Felix Frankfurter: (Voice Overlap) --
Mr. Denis Hurley: As a matter of fact, they have a -- excuse me, Your Honor.
They have a sliding scale in New York or either take the sliding scale or you take a flat one-third.
You can take a flat one-third, a contingent fee or go according to the sliding scale.
Justice William J. Brennan: May I ask, Mr. Hurley.
This -- perhaps it's not really irrelevant but -- that his -- does the practice in New York automatically to disbar on conviction of a crime?
Mr. Denis Hurley: If it's a felony.
Justice William J. Brennan: Of a felony.
Mr. Denis Hurley: If it's a conviction of a felony, it's automatic disbarment.
Justice William J. Brennan: And I take it some of these questions might have -- it leads to conduct which would have constituted felony.
Mr. Denis Hurley: Possibly, Your Honor.
As a matter of fact -- in -- arising from our proceeding, I think there were probably five or six cases now in four years.
One lawyer was acquitted and later disbarred and disciplinary though.
Two lawyers got six months in jail.
They pleaded to a misdemeanor and others pleaded guilty to felonies and consented to disbarment.
So six were dispose up today in four years in that way.
So that, you see, the great majority of the cases involved are something other than crimes.
And that, of course, we have the -- the problem of -- of whether -- in the -- in the criminal courts of having to prove it beyond a reasonable doubt whereas we have the -- the weight of evidence, the preponderance of the evidence in the disciplinary proceeding.
I should like to point out and I think this is important here is -- whether in some of these other cases that this case, as I conceive it, points up too sharply conflicting views of the role of the lawyer in American society.
And I think the real question that's presented in this case involves the true status of the American lawyer or if you -- if one would prefer more modern current Madison Avenue style, the true image that should be projected of the lawyer, by the courts and by the bar, not the lawyer of fiction or TV or movies or the comics but the -- the real honest to goodness image as lawyers and -- and judges know he should be.
In other words, is he just a plain American citizen with no more obligations or no additional burdens or responsibilities, and the ordinary citizen?
Is he only as he's claimed here by the opposition only a bear licensee of the State or is he something more?
Now, I think this Court and the courts of New York have indicated more and more that the true role of the lawyer is more in the nature of a trustee.
And I think if that's considered for a few moments, you'll see how -- how that works out with every element as I -- as I conceive it of -- of a trust involved here.
And it seems to be the judgment of the -- of the courts of New York that when a lawyer, as I said before, is called to the witness stand, he comes there in two distinct capacities.
First, as a citizen, with all the rights and privileges and duties of a citizen, but beyond that, he appears as a lawyer with all of the rights and privileges of the lawyer and also all of the stern duties and solemn responsibilities of his lawyerhood.
So that we think he's -- and the courts of -- of New York have said and this Court has repeatedly emphasized in -- in various opinions involving lawyers that he's more than a -- a mere licensee and more it came through a trustee.
So that we -- we work that out in this way.
That when a lawyer is admitted to the bar.
He presents himself for admission and he is admitted to the bar, the effect seems to be that the court, the admitting court is representing to society at large that here is an honorable man worthy of the public's trust and confidence, worthy to uphold the honor of the profession and as its officer, the dignity of the court.
So that when a lawyer takes the oath, as happened here this morning, takes the oath, whether in this Court or any other court in the land, he is held out and certified by the admitting court as a person in whom the Court places its special confidence and in whom the public may trust.
That certainly consistent with what Chief Justice Hughes said some years ago that the practice of the profession of the law is the privilege administration of a public trust.
And I think it's upon the basis of that -- of that certification, that representation by the Court that in every specific case that the lawyer handles, his clients confined the most precious causes to him.
They trust in him even though they never met the lawyer before and they put in his hands because they trust him on the representation by the Court and holding out by the Court, they entrust him with the defense of their properties and their liberties and their lives.
And in a broader sense, may I suggest to this Court, in a broader, in a more general sense, as I conceive it, every lawyer is also a trustee of the vast rich heritage of the common law, of all of our statutory law and of all that the law stands for.
So that I submit that upon admission, a lawyer in reality becomes a trustee of the law and the Court appoints him as such.
You have a trust grieves.
You have the great body of the law that was so eloquently described by Justice Holmes.
You have the public as the beneficiary.
You have the Court as the creator or the secular of the trust.
Now, you have a lawyer as the trustee and he's called in by the very court that admitted him and it has the power to discipline him.
He's called in to give an accounting of his stewardship.
He may refuse to answer, that we conceive.
He may invoke his privilege and his plea must be sustained if he invokes his constitutional privilege.
But the courts of New York said, in failing to account, for his failure to account, he forfeits his trusteeship in the bar.
And in this case, the Court's decree that petitioner by failing to account for his professional conduct could be stood no longer.
Now, carrying the analogy further, where a court ousts a trustee for refusal to render his account, he comes in, he's told to render his account, whether he is a testamentary trustee or whether he is a trustee of a living trust and he refuses to account under a claim of constitutional privilege, I submit, that a claim of depravation of due process has no validity in such circumstances.
Certainly to prevent his removal, the trustee cannot insist that the beneficiaries must -- as this claimed here, must in the first instance prove an affirmative case against him of wrongdoing against the trustee before he must come forward with his account.
And the right to specific charges and prove to confronta -- confrontation on cross-examination of witnesses, I submit, is beside the point where there is an absolute duty in the first instance of coming forward with the true account.
I gather my time is up.