SPEVACK v. KLEIN
The New York Bar charged Samuel Spevack, an attorney from New York, with professional misconduct because he refused to produce financial records and testify at a judicial inquiry. In his defense, Spevack claimed his constitutional right against self-incrimination, and stated that the records and testimony would tend to incriminate him. The New York appellate court rejected Spevack’s defense and ordered Spevack disbarred, holding that the Fifth Amendment right against self-incrimination was not available to attorneys against states.
Is the Self-Incrimination Clause of the Fifth Amendment applicable against states when the person claiming the right against self-incrimination is an attorney?
Legal provision: Self-Incrimination
Yes. Justice William O. Douglas wrote the plurality opinion of the Court reversing the lower court’s decision. Writing for himself and three other justices, Douglas maintained that the Self-Incrimination Clause of the Fifth Amendment is applicable against states because the Fourteenth Amendment prevents states from interfering with the rights guaranteed by the Fifth Amendment, including the right to remain silent without suffering a penalty. This protection extends to lawyers, and Spevack should have been able to assert his right against self-incrimination without being penalized by the dishonor of disbarment and the deprivation of his livelihood.
Justice Abe Fortas voted with the majority but wrote a special concurrence distinguishing between a lawyer's right to remain silent, which he acknowledged, and that of a public employee, who could be questioned about his official duties without the self-incrimination protection.
Justice John Marshall Harlan II dissented, joined by Justices Tom Clark and Potter Stewart. Harlan wrote that the State of New York had the authority to impose valid conditions on the authority to practice law and to assess qualifications for continued practice. He concluded that the plurality improperly invalidated New York’s rules by reversing Spevack’s disbarment and determined that protection from disbarment for failure to provide information to a judicial inquiry went beyond the scope of the right against self-incrimination.
Argument of Lawrence J. Latto
Chief Justice Earl Warren: Number 62, Samuel Spevack, petitioner, versus Solomon A. Klein.
Mr. Lawrence J. Latto: Mr. Chief Justice, may it please the Court.
This is the third case which arises out of a judicial inquiry established by the Appellate Division, Second Department State of New York to reach this Court.
The first Anonymous v. Baker to sustain by a narrow majority, the validity of the procedures followed by that inquiry against the claim that where in violation of the Due Process Clause of the Fourteenth Amendment.
The second was Cohen against Hurley, in which by the same majority do upheld the disbarment of a lawyer who withheld by the majority in that case to have pleaded only his state privilege against self-incrimination.
That case also was decided before New York and the other state were required to give recognition to the Fifth Amendment.
That requirement being imposed by your decision in the Malloy against Hogan and for reasons which are set forth with greater detail in our brief, we feel that for these reasons, the decisions in Cohen against Hurley is certainly not controlling and indeed hardly enough competitive here.
This case, it does present the question squarely of what construction must be given to the word compel in the Fifth Amendment.
The petitioner here was admitted to the bar of the State of New York in 1926.
He practice without criticism or approach until June of 1959 when he was served with a subpoena commanding him to appear before this judicial inquiry.
The subpoena indicated that he would be required to testify with respect to matters pertaining to its businesses and attorney and it also requested that he produced a large number records all of which were designated in 12 separate very broad categories and indeed a catch-all phrase which said that he was required to produce all other deeds, evidences and writings which you have in your custody or power concerning the premises.
Insofar as it appears, there were no charges against him and respondent's brief indicates that the reason that he was called was because he had filed a large number of what are known the statements of retainer.
These are statements which are required to be filed with the Appellate Division by attorneys who have more than a certain number; I believe that's five cases in a given year in which their compensation is on a contingent basis.
And he had well in excess of the required number and had filed a statement.
He appeared before the inquiry.
He moved to quash the subpoena.
This motion was denied, appeals were taken and the denial was upheld.
He then interposed a claim of privilege under the Fifth Amendment as made -- well, he claims the privilege under the state privilege against self-incrimination as well.
And it was made claim to him at the time he first claimed the privilege that it was available.
It was -- there was stated unequivocally by the presiding justice that he have an absolute right to claim the privilege.
He was informed that there was a test case pending that was Cohen against Hurley and that would be appropriate to recess the hearing until the determination of that case and this was done and the rather lengthy recess ensued.
Subsequently, after the decision in Cohen against Hurley, he was again requested to appear after some vacillation he did reinstitute his claim that quite unequivocally and in connection with that, it was made claim to him that while he had a right to claim the privilege, the consequences might be very serious.
Indeed that the consequences might be disbarment.
Irrelevant portions to which I refer are pages 44 and 45 of the record.
The counsel for the inquiry quoted from the Cohen decision.
I pointed that it was to be urged that the appellate division -- to the Appellate Division that he was guilty of the same kind of failure to cooperate with the Court which were the basis for the disbarment of Cohen.
Nevertheless, he adhered to his determination with his decision not to respond or to read -- or to produce these records and subsequently, the Appellate Division ordered respondent to institute proceedings which are procedure filed in New York for disbarment.
The proceedings were held a rather full account of the proceedings before the judicial inquiry can be found in the referee's report that which is at pages 56 to 81 of the record.
These proceedings are held before a referee.
There was an petition to the Appellate Division to confirm the order of the referee and the opinion of the Appellate Division is found at record 83.
Essentially, the Appellate Division held once again, it was perfectly clear that the petitioner had the right to claim the privilege against self-incrimination.
But that in doing so, he had failed to observe his obligation to be candid, to be frank, to be cooperative with the Court in which his failure to conform with that duty which was the basis for the other of disbarment.
The appeal was taken --
Justice John M. Harlan: Wrong doing -- wrong understanding --
Mr. Lawrence J. Latto: Well, we assert of course that it's only on the basis of such inference that this could be done.
But the Appellate Division --
Justice John M. Harlan: Expressly disclaim --
Mr. Lawrence J. Latto: The Appellate Division disclaimed any inference of wrongdoing.
The Court of Appeals to which an appeal was taken affirmed summarily with a very brief memorandum of opinion which I think I might read it said simply or to affirm now the authority of Cohen against Hurley 366 U.S. 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 with him -- by him, Boyd and Davis, and Shapiro against the United States which is of course the relevant decision.
To return to the irrational of the Appellate Division, a -- it assert quite plainly that no inference of wrongdoing of any kind was being drawn from his assertion of privilege.
The Appellate Division said that when he appeared before the inquiry and I quote its words, he had an absolute right to invoke his constitutional privilege against self-incrimination.
In other words, the right or privilege not to testify but that he also have a common law right, possibly a statutory right.
There is a provision of New York law which regulates the practice of law by attorneys.
But he also had this common law duty to testify and that the duty to testify can be separated and viewed entirely apart from the right not to testify.
Now, the fist question is whether this is simply playing his words as we asserted this or whether this is in fact a fair and meaningful way of looking at this matter.
The question is most important because if the Appellate Division in the New York courts are correct.
Then this really contend a very simple case.
There's no problem at all.
They admit that no penalty, no sanction is being imposed by reason of the invitation of the privilege.
Indeed they say if -- it is not even being impaired or diminished in any way.
They say they are focusing on this obligation to cooperate.
His duty to testify and it is unrelated to his right not to testify.”
I think it can be demonstrated quite easily and readily that there can no separation of these two opposite sides of the same coin and that's best on by considering what would be the result if his refusal to testify had been placed upon the attorney-client privilege.
Here, I think, everyone respondent to New York courts would all agree that he could not be disbarred for failure to cooperate with the New York courts by failing to be candid, by failing to be frank with them.
Justice Abe Fortas: No, that's not his privilege.
Mr. Lawrence J. Latto: That's exactly the point Mr. Justice Fortas.
It is not his privilege but the point is that you must examine the reason for his refusal to be cooperative.
The question of what that reason is, I'm putting aside for the moment.
The only question I'm directing myself to is must you examine the reasons.
Can you avoid looking entirely at the reason?
Now, the Appellate Division has said, yes, we can avoid looking at the reason.
And all I'm asserting now is that they cannot do so.
If they could avoid looking at the reason, they could have avoided just as well at its privilege had been the attorney-client privilege.
Justice Abe Fortas: I shouldn't think so because in fact, with in the attorney-client situation that the testimony is not his --
Mr. Lawrence J. Latto: Yes, that is quite right.
He has an excellent satisfactory reason for his failure to be cooperative for his failure to be frank with the court.
The failure is exactly the same but you excuse it in that case because he has no privilege whatever.
He has no basis for refusing to answer.
But you examine the question of whether he has a basis or no basis for refusing to answer in reaching your conclusion.
And this is what I say must be done here.
In examining the question of whether he is guilty of a failure to cooperate with the Court.
You must examine the question of whether he has an adequate basis or not.
The question before the Court is not whether these two opposite side of the same coin can be viewed separately but whether his failure to comply with his obligation to be cooperative with the Court is subject to the claim of privilege or not subject to the claim of privilege.
This is phrase incidentally which I draw off in Justice -- Judge Cardozo, then Judge Cardozo in the case of Karlin v. Culkin when he was Chief Judge of the New York Court of Appeals.
It seems to me that's the question which must be decided is his failure to cooperate subject to the privilege which is his by virtue of the Fifth Amendment or is it not subject to a privilege.
Now, that question was not looked into, not examined at all by the courts of New York.
But it is I think before this Court and I should like to turn to it.
The question then is, what are the possible bases for concluding as New York would like to conclude that this duty to cooperate must prevail.
Now the first is the one adhere to suggested by Mr. Justice Harlan and that is I suppose it could be held that in the proceedings such as this.
An inference of guilt or of misconduct might be drawn, though you cannot under the Griffin case draw such an inference in other proceedings.
This I must say would go into conduct to virtually every decision of this Court.
If there's one thing that's clear, if there's one thing that has no division within the Court about it is that the no improper inference of guilt and misconduct of any kind may be drawn from the invocation in the privilege against self-incrimination.
This is the (Inaudible) decision in Grinwold and Griffin.
So I think this manner of saying that the duty to cooperate with the courts which regulate the practice of law must be set aside.
The second possibility would be to engage in analysis of the comparative value of a -- the comparative importance the way to be given to the need to cooperate with the Court as against the policies.
The importance of the privilege against self-incrimination and here again, I think we run into a consistent line of decisions of this Court.
So far as the Fifth Amendment had been interpreted date, it's been uniformly held that this kind of process is not engaged in.
Whatever the Fifth Amendment mean, it means and it's not to be abridged by virtue of what is considered to be a greater objective of the state.
The objective of punishing persons who are thought possibly guilty of murder or other serious crime is certainly as important to one as we know.
But it does not prevail against the Fifth Amendment and so I think that some sort of waned process to determine the relative value of these two again must be set aside.
I may say in passing that even in such process where to be engaged in.
It would not be on the basis of simply determination of which would they considered to more valuable.
The test would have to be one of necessity rather than reasonable relationship.
The same test which has been applied in Shelton v. Tucker, McLaughlin against Florida and a host of other cases that wherever a regulatory function has the tendency to impair a significant constitutional right.
A much sterner test has been applied by this Court and I presume will continue to be applied by this Court.
We then come to the only other two bases that I can see for reaching the conclusion that the duty to cooperate must prevail over the privilege against self-incrimination and that would be to construe the Fifth Amendment narrowly so as to make it not apply in this situation at all or to employ some sort of waiver approach.
Now, I mention the two of these together because the arguments which are used for each of these possible bases for narrowing the protection of the privilege tend to be the same.
In each case, the same starting place is to consider the role of the lawyer in our society.
It's pointed out that the lawyers are engaged in the administration of justice that there were no public service, that they operate on the high ethical standards which are greater than those normally applied, normally demanded of other professions.
Now, of course we agree fully that membership in the bar carries with it proud obligations that are not imposed upon other occupations nor a profession say if the duty to represent indigents for example, without compensation to the court in line, limitations upon what we may properly do in advance and the interest of our clients is another.
I think however that as lawyers and as judges, we have to guard against being taking too parochial view and guard also against being swept away by this rhetoric.
The -- there's no question that the state as a result of the special law of the attorney may regulate the practice of law very closely indeed but there is a second more important question here and that is whether there's a constitutional difference between the authority to regulate the bar and the authority to regulate any other profession.
And try as I may -- I don't think I can find one.
There are countless other oblig -- other occupations that maybe and are being regulated by the state and while they don't avow the administration of justice, they all relate in some very significant way to public health to the public safety.
At least they involved some legitimate concern of a state.
And I see no way in which one could not find a rational basis, a rational reasons for a legislator to conclude that if it is regulating a particular occupation that it would be more effective, more efficient, if it could demand the persons who are engaged in that occupation that they respond to certain questions relating to the manner in which that business is carried out.
You always in every instance in which there is regulatory activity being carried on be able to construct a sound reasonable argument of this kind.
Justice Abe Fortas: Mr. Latto, are you going to get through the Shapiro point?
Mr. Lawrence J. Latto: I certainly hope too, because I think that the argument I make in here affect the Shapiro point as well.
I simply would like to point out that this area that I'm discussing would not involved merely occupation subject to regulation but the very vast area dealing with the use of public resources, dealing with the use of benefits of one kind or another that the Government provide to its citizens.
I'm talking about such things as at lease of government land that received the proper support payments more of its insurance, the use of public airports.
In all of this area, it is always possible to construct a rational argument for showing that the program can be administered more efficiently.
If the recipients of these benefits where to respond to questions about how the benefits are to be used?
And if the Fifth Amendment is to be construed so that it no longer apply in every instance in which there is regulation of a particular industry.
Then this would represent about his drastic or rejection of the decisions of the past two terms as could be possibly imaginable.
Now, I pass over my discussion of the weight of privilege to get to the Shapiro case because I think that what I've been saying until now affect the Shapiro doctrine as well.
In that case to recall it briefly to your mind, the Court held that wherever a statute or regulation requires keeping records.
Those records which otherwise would be considered private which might had been kept prior to the adoption of the statute are somehow converted into if not public record at least quasi-public records and that they're not protected against disclosure by the privilege against self-incrimination.
Now, this holding was preceded by a sentence in the Court's opinion which bears reading.
The Court said, “It may be assumed at the outset that there are limits which the Government cannot constitutionally exceed in requiring the keeping of records which may be inspected by the administrative agency and may be used in prosecuting statutory violations committed by the record keeper himself.
But then the Court went on to say, “No serious misgiving that these bounds have been overstep would appear to be evoked where there is -- when there is a sufficient relations between the activity sort to be regulated and the public concern.
So that the Government can constitutionally regulate or forbid the basic activity concerned and can constitutionally require the keeping of a particular records subject to inspection by the administrator.
And while that sentence is somewhat circular, its breadth is enormous and particularly in terms of the way which the commerce power and the police power of the state has been interpreted today.
But the Court has said, “It's in every instance where a business is subject to regulation.
Its records which are designated as required to be kept no longer are entitled to the privilege against self-incrimination in the face of the set of rule that the privilege applies to documents as well as to oral testimony.
Now, this -- the question really is how shall broad an en route into the privilege against self-incrimination could have been rendered by this Court.
The fact is that there is a uniform cause of constitutional adjudication from Boyd and running through Malloy and Griffin, and Miranda last term in which repeatedly, this Court has announced that the privilege against self-incrimination is to be given a broad and not a niggardly or grudging interpretation.
Justice Abe Fortas: Suppose we follow Shapiro, what's the effect on this case?
Mr. Lawrence J. Latto: Well I think, we would still have to reverse the judgment below because of the, first, the lack of clarity of the opinion of the Court of Appeals.
And second, I think because of the doctrine of Raley against Ohio which is a subsidiary point which we make in our brief which I have not planned to cover an argument.
So that there are the grounds which I think would require reversal on the decision below.
Justice William O. Douglas: Well, was there any oral testimony regarding records?
Mr. Lawrence J. Latto: There was no --
Justice William O. Douglas: Of?
Mr. Lawrence J. Latto: There was -- there were questions put unanswered but they related expressly to whether he would produce certain designated documents called for by the subpoena --
Justice William J. Brennan: Well, going back to Mr. Justice Fortas' question that is whether suppose we follow through it, would that answer the question whether the privilege in any event was available to any questions directed to the records in Shapiro?
Mr. Lawrence J. Latto: Oh, I think Shapiro itself holds and your other cases do hold that the privilege does apply to questions which are related to documents.
That issue was well settled and it is not to be reexamined here?
Justice William J. Brennan: That's not involved here?
Mr. Lawrence J. Latto: Not involved here.
Justice Abe Fortas: Actually there were worse in the question in here except the questions that the preliminary questions that would be subsumed under the Shapiro doctrine, is that --
Mr. Lawrence J. Latto: That -- that's quite a fair statement Justice Fortas.
I think it should -- this should be said, the focus of the inquiry to the extent that questions were put were upon the documents.
There was no effort to go through this charade of putting a great many questions and getting answers to each of them in terms of whether the privilege was to be invoked or not.
I think that the presiding justice and counsel for the inquiry, simply wanted to make a clear record that were questions were put and he was called to the purposes of testimony.
He would claim his privilege.
The record was clearly made and this was considered satisfactory by all concerned.
But it is certain true that the focus was upon the records and I think there is substantial basis for your reaching the question of whether Shapiro should continue to be applied?
The fact is that this case stands out as a glaring excrescence upon the line of constitutional decisions that runs from Boyd until the present time.
Justice Abe Fortas: Whether it is or not where we are at the moment is that -- if we -- unless we overrule a modified theory.
We have to affirm, is that right?
Mr. Lawrence J. Latto: No, I don't think you have to affirm --
Justice Abe Fortas: It's up to the reason that -- I mean to say except for (Inaudible) or whatever it is.
Mr. Lawrence J. Latto: Well, let me make direct --
Justice Abe Fortas: This is -- that this is about as completely confined to a documentary case as you like to define.
Mr. Lawrence J. Latto: It is pretty close to it Justice Fortas --
Justice Abe Fortas: Right.
Mr. Lawrence J. Latto: Now I think, it's fair to say that you look at the memorandum opinion of the Court of Appeals.
It does read affirm on the basis that Cohen against Hurley and on the further ground that Shapiro applies and it -- it might not be possible to say that if the Courts, the New York Court of Appeals, had understood and had recognized that Cohen v. Hurley was no longer a good law that the decision would have been the same.
But I must agree that Shapiro is presented here or almost presented.
I'll put it that way.
I think also the fact that he was assured by the presiding justice that he had a privilege with respect to the documents at the time that these questions were put and the fact that the appellate division reaffirmed the fact that he had a privilege with respect to these documents would bring the Raley against Ohio case into play.
Justice William J. Brennan: I don't follow that?
Mr. Lawrence J. Latto: If --
Well, in Raley against Ohio, the petitioners there were --
Justice William J. Brennan: Well, they were told by a chairman of an investigating committee that they have a privilege and the Court said, no, didn't because in immunity statute.
Mr. Lawrence J. Latto: Because of immunity statute.
I think --
Justice William J. Brennan: Or whether they are about this record which claims the --
Mr. Lawrence J. Latto: Oh, he was told that he had a privilege with respect to these documents.
Justice William J. Brennan: But was there not a long continuance in the proceedings and perhaps their opponents earlier cited here?
Mr. Lawrence J. Latto: Yes.
The Cohen and Hurley did --
Justice William J. Brennan: Well, I don't quite see how he was misled by the assurance in the same way that petitioner's merely would?
Mr. Lawrence J. Latto: Oh, he was relying if, Your Honor please, upon the Malloy against Hogan case.
The Cohen against Hurley case made a quite claim that there was no question of the applicability of the Fifth Amendment on that case.
But he was --
Justice William J. Brennan: Perhaps I don't follow you.
I thought you told us at the outset that initially he had been through it.
He might -- that the privilege was available.
Mr. Lawrence J. Latto: Yes.
Justice William J. Brennan: That then there was a suspension in the proceedings pending as a decision in Cohen and Hurley --
Mr. Lawrence J. Latto: Right.
Justice William J. Brennan: -- about that.
What was that suspension for?
Mr. Lawrence J. Latto: That was to determine whether the rational of the Court was acceptable.
Justice William J. Brennan: Had we decided Cohen and Hurley at the time of the suspension of the case?
Mr. Lawrence J. Latto: No.
That Cohen and Hurley was at this case that this was suspended for.
Justice William J. Brennan: That's my point and I don't quite --
Mr. Lawrence J. Latto: Oh!
Well, ask the Cohen against Hurley.
He was again assured that he have a privilege against self-incrimination relating to these documents.
Cohen and Hurley didn't touch that at all.
Following your decision he was told, “Yes, you may refuse to produce these documents by reason of the privilege which you enjoy under the Fifth Amendment to the United States Constitution.
It was only when he got to the Court of Appeals --
Justice William J. Brennan: Now, how was that assurance denied on that -- have been given --
Mr. Lawrence J. Latto: Oh, the Court of Appeals stated alternatively that he did not have any privilege at all with respect to these documents.
Justice William J. Brennan: Because of Shapiro --
Mr. Lawrence J. Latto: Because of Shapiro but this was not involved at all while the judicial inquiry was going on and there's nothing in the Appellate Division opinioned itself that relates to this.
This came up only when the Court of Appeals rendered its decisions.
There was something in briefs to that effect I should add.
But it did not come up at all until the Appellate Division had decided the case.
So that I think the situation is very comfortable to what it was in Raley against Ohio.
Justice William J. Brennan: Well, I must say Mr. Latto, I'm not so impress with that reply.
Mr. Lawrence J. Latto: Well, I'm content to have you reach and decide the Shapiro case because I do think the Court should do so.
If I may, I can't cover the Shapiro case in the moment or two that I have available.
But I'd like to point to one thing about it.
The statute involved in Shapiro required every person subject to this regulation.
To keep and make available for examination by the office of price administration records of the same kind as he has customarily kept relating to the prices which he charges for fresh fruits and vegetables.
And the bases upon which he determine maximum prices for these commodities.
I suggest that if that statute had gone on to say and every such person who fails to keep such records or whose records are inadequate shall appear before the administrator upon his demand and shall give testimony concerning the prices which he charges for fresh fruits and vegetables and the bases upon which he determine maximum prices for those commodities.
There is not a word in the Shapiro case that will indicate in any way why there should be a differentiation between the record portion of that statute which I have hypothesized and the oral portion of that.
The opinion itself --
Justice Abe Fortas: Well, you got two possible positions Mr. Latto.
I think one is that we should overrule or modify Shapiro and the other is that somehow rather the record keeping division here is different from that involved in Shapiro.
Mr. Lawrence J. Latto: I have made an argument in our brief --
Justice Abe Fortas: And the --
Mr. Lawrence J. Latto: -- that the record keeping --
Justice Abe Fortas: What bothers me is that if the privilege does apply to these records.
I was hoping you get to that obviously.
Can privilege does apply to these records since there any functions served by the requirement that the records be kept.
Let us say the records are required to be kept for the purpose of ask any whether lawyers have been doing things that they ought to do and as if when you do have a problem here.
It seems to me as to whether that particular function in the record keeping statute serves any purpose whatsoever if the privilege stands to them.
I've been bothered by this, I'm trying to --
Mr. Lawrence J. Latto: Well, Mr. Justice Fortas --
Justice Abe Fortas: -- have indicated the fruits?
Mr. Lawrence J. Latto: -- I must say, we have briefed and argued this case under this assumption that the power of the Appellate Division to regulate the practice of law is very broad indeed.
And that it does have the authority to require the keeping of records of this time.
Do not think that should carry with it automatically the abandonment of the privilege against self-incrimination unless you are prepared to overall avoid and to hold that the documentary matter is not subject to the privilege as oral testimony is.
That's would require to --
Justice Abe Fortas: Maybe there's difference between documentary matter and records that are properly required to be kept by statute regulatory records as in Shapiro?
Mr. Lawrence J. Latto: All that I suggest is that there's not a word in Shapiro that suggest what that difference might be.
And that other decision of this Court such as Albertson make it plain that there should be no significant difference between documents and oral testimony.
Justice Byron R. White: That there is no -- there's no problem of testimonial, non-testimonial as in Schmerber involved (Inaudible)?
Mr. Lawrence J. Latto: No.
I -- I do think that there was an intention to require him to testify and to make a record to that effect.
Justice Byron R. White: But the record as such would come I gather within the category testimonial rather than non-testimonial?
Mr. Lawrence J. Latto: Yes.
They're testimonial record.
I think in fact they're broader than the records.
He was required to keep by Rule 5 of the Appellate Division.
But this is another point entirely.
Chief Justice Earl Warren: Mr. Klein.
Argument of Solomon A. Klein
Mr. Solomon A. Klein: Mr. Chief Justice and may it please the Court.
I would like to say at the outset that I don't think that any lawyer should ever be required to crawl.
And this associate at the New York Court of Appeals has disbarred the petition because he refused to cooperate by relinquishing a valid Fifth Amendment privilege is with all duel deference to my adversary contrary, to the record facts as well as to the actual judgment of the New York Court of Appeals.
Now may I say, I happen to be one who agrees that the Fifth Amendment privilege against compulsory self-incrimination is one of the great landmarks of my struggle to make himself civilized.
That's Dean -- agree with those of Dean Griswold's words that have been quoted in opinions in this Court.
At the same time, I submit to Your Honors that on the facts in this case and on the judgment rendered by the highest Court of the state.
Not to your opinion written by that Appellate Division that the petitioner's position amongst to nothing more than that the Fifth Amendment privilege against compulsory self-incrimination can be stretched to a point of frustrating an equally important obligation on the part of all Government to provide equal justice under law, equal justice to the poor as well as to the rich.
And I submit to Your Honors that that is the issue in this case.
The State of New York and of the states but particularly the State of New York has for years been confronted with a difficult problem.
Namely, to try to control the evils that haven't -- as a result of experience are risen from the contingent fee negligence practice.
There was a time when New York prohibited contingent fees as well as other states in U.S. Inland and other foreign countries prohibited today.
The theory behind such prohibition is that the contingent fee introduces a speculative element which leads to or stirring up the litigation in passing the obligation, the duty that a lawyer has to a client.
It has cost what it almost a national disgrace namely the overcrowding of our calendars of federal and state courts where litigation that doesn't belong there because it is not merit.
But recognizing those evils is one important justification for permitting the contingent fee practice.
And it is the only justification for it namely, to put our courts of justice within the reach of the accident victims of which there are many in our highly industrialized mechanized society today, to put those courts of justice within the reach of those accident victims all because of financial inability even though they have a meritorious cause of action, cannot afford to pay a fixed fee for representation by competent counsel.
It is that important consideration that has induced New York and other states of our human to permit the contingent fee and to provide for necessary rules and regulations so as to prevent these evils from arising.
And what has New York done? For many years, not yesterday goes back to at least 1940, after some very bad experience starting in 1928 that established special rules that are very simple.
The first is that every attorney engaged in contingent fee negligence practice must file with the Appellate Division.
Today it's with the Judicial Conference of the State of New York, a statement of retainer in which he is to disclose the terms of this contingent fee compensation.
The name of the client and the source of the retainer and he's required to keep a special account into which he must deposit all recoveries that he obtains on behalf of his injured clients.
He is prohibited from commingling those funds.
He is prohibited from withdrawing his share before he pays that injured client.
He is required to give a closing statement to the injured client setting forth how much he recovered.
What his fee is and what the disbursement was?
And then, he is required by special rule to preserve his records of a disposition of those cases for a period of five years.
Justice Byron R. White: What were those records included in there?
Mr. Solomon A. Klein: The records would include and if Your Honor would look at the present rule, that prior rule said, “All dated memorandum with respect to the disposition thereof and that must be read in connection with the prior rule particularly Rule 4 which requires him to keep a special account and to deposit all recoveries in that special account.
And Your Honor will find that the rule today invoke the first and the second judicial deposits make it unmistakably clear that it includes canceled checks, vouchers, things of that kind.
Now let me say these things, Your Honors.
Justice William O. Douglas: And where there is a case files too?
Mr. Solomon A. Klein: He should pres -- well, case files should also preserve.
Yes, because the case files would contain for example, copies of the closing statements that he gave to the client or may contain other information.
It should preserve them for a period of five years.
Under New York Court of Appeals, rule in this case that the records required to be checked under Rule 5 come within the required records doctrine as enunciated by this Court in the Shapiro case and may I say, we all have the highest regard for the great constitutional decision in Boyd against United States.
One of the greatest, giving the most broad, liberal interpretation to both the Fourth and Fifth Amendments and in that very case as I indicate in my brief, I believe.
Unfortunately, the footnote I think.
Mr. Justice Bradley after giving the broadest interpretation to the Fourth and Fifth Amendments specifically for it says, that that does not apply to records required to be kept by law.
I will return to that in that moment Your Honors.
I'm watching my time.
Now, I want to emphasize that one of the problems of New York and other states is the danger that the hospital attendant, the policeman, the insurance agent, the boss of the Waterfront, the insurance company adjuster, and others may share at the danger in the recoveries made on behalf of injured clients who are laymen sufferings from severe injuries and do not know what their rights are.
That is the danger we were to provide against in addition to destroy both federal as well as state courts by plugging them with unjustifiable causes of action.
Now how can we do it?
By adding this requirement that he preserved those records, we then have the necessary information whether or not for example.
He has deposited the funds are recovered on behalf on his clients in a special account or they speculated to those funds for his personal profit and then even though he pays the client, keeps to properly made, or if he should lose in his speculation, the client suffers.
There is no other source that we content to determine whether or not he had abided by the special rules particularly, the deposit you see may of the monies he recovered on behalf of his clients.
Chief Justice Earl Warren: Mr. Klein, I want to ask this. Does he or there is a subpoena Court extensive with the revisions of the order about keeping financial records or does the subpoena go beyond --
Mr. Solomon A. Klein: I will say my judgment, it goes beyond.
In several instances, we are -- let me put it this way.
There's room for reasonable argument that some of the items called for in this appeal.
It might perhaps they argued do not come within the require records of I'm talking here.
Chief Justice Earl Warren: Yes.
Mr. Solomon A. Klein: But let me emphasize Your Honor --
Chief Justice Earl Warren: Would you mind relating those to us.
Tell us what those are?
Mr. Solomon A. Klein: Oh, those are I would say do not come.
Chief Justice Earl Warren: Do not come within the --
Mr. Solomon A. Klein: Or I could give it the other way.
Now, I submit sir --
Chief Justice Earl Warren: What page are you on?
Mr. Solomon A. Klein: At page 1 of the records --
Chief Justice Earl Warren: Page 1 of the record?
Mr. Solomon A. Klein: -- of the transcript, the printed transcript of the record, cash disbursements book.
Now Your Honors, payments too are --
Chief Justice Earl Warren: Now, cash disbursements --
Mr. Solomon A. Klein: I would say do come within the records.
Chief Justice Earl Warren: Yes.
Now, I thought you're going to tell us that those didn't come within the statute?
Mr. Solomon A. Klein: Well, I would exclude and I have --
Chief Justice Earl Warren: I beg your pardon?
Mr. Solomon A. Klein: I would exclude as not coming within the statute.
Chief Justice Earl Warren: Yes.
Mr. Solomon A. Klein: The federal and state tax returns for example.
In fact Your Honors, may I say --
Chief Justice Earl Warren: Yes.
Mr. Solomon A. Klein: -- that the past two years that I have been the counsel to the judicial inquiry must have been expressly, I limit, I omit calling of federal state tax returns because I do not deem it to be within my province to become an adjunct of either the federal internal revenue or the state tax.
Chief Justice Earl Warren: And how about the worksheets of the work --
Mr. Solomon A. Klein: Worksheets --
Chief Justice Earl Warren: That's without?
Mr. Solomon A. Klein: That's right.
Justice Hugo L. Black: You mean all of items filed Mr. Klein, would be out?
Mr. Solomon A. Klein: Item 12.
Copy the federal state income tax returns, accountant's worksheets, and all other -- I do not include as declare.
Justice Hugo L. Black: They go the outside of the rule?
Mr. Solomon A. Klein: Yes.
Justice Hugo L. Black: No.
Mr. Solomon A. Klein: But may I ask.
That the others are all related through the essential enforcement of the special rules.
These payments that other lawyers have made to runners, hospital attendants, policemen and others are generally charged as necessary disbursements which come out of the claimed share.
It is that that we would like to find out whether the clients monies are being used for alleged necessary disbursements when in fact may be a pay off to an insurance adjustment.
Justice William O. Douglas: Well, that number 10, is that in the record?
Mr. Solomon A. Klein: Number 10.
Justice William O. Douglas: (Inaudible)
Mr. Solomon A. Klein: Yes.
Justice William O. Douglas: That's only record --
Mr. Solomon A. Klein: Yes, records of all those made from financial institutions and others open and close as that does have a relevancy in this sense.
Whether he is borrowing money in order to finance the contingent fee litigation, well, I do not think it's of any grave importance as to those records.
Justice Abe Fortas: Now with the question, I think that anyway I'm interest in is which of these records is and which is not required to be kept by this specific statute that is said statute --
Mr. Solomon A. Klein: Well, the specific statute is in broad language and as it reached today and may I add that in 1900, in July 1960 which was before the petitioner in this case ultimately claimed Fifth Amendment privilege and I will -- I must come to that.
The New York -- the first department, television and second departments, expressly provide that it shall include all memoranda data --
Justice John M. Harlan: It's a Court rule?
Mr. Solomon A. Klein: Yes, the -- and there pursuant to Section 90 of the Judiciary Law and are equivalent to statutes include cash and checks, vouchers, all financial data of that kind that would be related to the important questions as to what he did with these trust matters.
Now, I want to emphasize this in view of Your Honor's question.
When the petitioner ultimately asserted his refusals, each item in the subpoena this is taken.
He was asked about separately.
He refused to produced any want so that if I assume from the second discussion that some of them might not be included within the required records doctrine, the important finding, I won't anything but I --
Justice William J. Brennan: What was the ground?
Mr. Solomon A. Klein: What was that?
Justice William J. Brennan: What was the ground?
Mr. Solomon A. Klein: The ground was claimed of Constitution of Privilege Fifth Amendment.
And may I add that in the course, he also announced and I won't answer any question in relation thereto.
A blanket would use to give any and all testimonies.
And when Your Honors, they have already looked at it.
But when you do, the amended (Inaudible) of the New York Court of Appeals makes that unmistakably clear that the two grounds upon which they urged that he had been denied his constitutional rights, well, one that he had a right under the Fifth Amendment to refuse to produce anyone of the records and that the had a right to refuse to answer and I'm quoting any question which might be asked.
Now may I ask, --
Justice Hugo L. Black: Is there any immunity have been -- was there any immunity promised?
Mr. Solomon A. Klein: No.
There is no immunity was promised.
Justice Hugo L. Black: No immunity in a plain Fifth Amendment of judgment.
Mr. Solomon A. Klein: That's right.
Justice Hugo L. Black: What -- what would be the crime if they?
Mr. Solomon A. Klein: What would be the crimes?
Justice Hugo L. Black: That he might apprehend at which lead to certainty --
Mr. Solomon A. Klein: Well, there's a possible belief he paid the lay referral money for the foreign cases to it.
He was thereby being aiding in embezzlement a layman in the practice of law which is --
Justice Hugo L. Black: That's fine.
Mr. Solomon A. Klein: -- criminal under New York inmate.
As certainly it protects, he converted the client's recoveries for his personal used that would be lost in.
So that those are only -- was the two possibilities.
Chief Justice Earl Warren: How about taxes?
Mr. Solomon A. Klein: Yes, there's a possibility, in fact, in the record he said, that there might be tax problems.
Chief Justice Earl Warren: He mentioned that, didn't he?
Mr. Solomon A. Klein: Yes, he did.
At one time in the record, he said that may be tax problems.
But my point is this --
Justice Abe Fortas: Is that the man -- was this the man for production that was sustained in another action in the New York courts?
Did petitioner challenged this --
Mr. Solomon A. Klein: I'm glad Your Honor you asked that question.
This period -- the period of time covered in this.
I think it is 1958, June of 1958 until January 1962, that's the third at that time.
And at that time the lawyer didn't tell me have not yet been decided.
When he first appeared and his very first appearance before Mr. Justice Arkwright in response to the subpoena this was taken.
He was asked by Justice Arkwright, “Where are the records you are required to keep under Rule IV?”
I mentioned this because they said the first time they heard anything about the required document in the Court of Appeals.
In June 1958 of the day of his first appearance, “Where are the records that you are required to keep under Rule IV?”
Petitioner said, “Sir, the courts have weigh round the records.”
“You are required to keep under the Rule 4 which is the rule requiring you have set up a special account.”
Mr. Spevack: “They are in my check book.
I refuse to produce these checkbooks or as canceled checks.”
And then he had taken the journal.
And I come to Mr. Justice Fortas' question.
It was told only warrant of the records.
He then instituted a separate proceeding to quash this thing raising constitutional grounds and the case came up to here.
Up to this Court, they are always denied certiorari.
Justice Abe Fortas: Was that the subpoena -- the demand but now appears on page 1 of defendant record.
Mr. Solomon A. Klein: That is right, sir.
It is that very subpoena that he attack by independent proceeding and went through the state court is not -- the application to quash was denied.
Well, he filed a petition for certiorari before this Court and it was denied and then he came back through the judicial inquire and then for the first time then he asserted not to comment on that.
He asserted state privilege against self-incrimination and due process, fundamental premise requirement of the Fourteenth Amendment.
Justice Potter Stewart: And at that time this still was before Malloy?
Mr. Solomon A. Klein: Yes, and before Cohen v. Hurley.
And at that time, Mr. Justice Baker the presiding Justice did express the opinions likely to having like to claim the privilege.
But this is serious question and we're having a test case coming up so we will give you an adjournment.
We'll wait till the outcome of the test case and then we'll give you an opportunity to come by.
Now the test case is Cohen v. Hurley and I want to emphasize this point because I have kept in right in saying the opinion of Mr. Justice Black, Mr. Justice Douglas and I believe Mr. Justice Brennan and there's one important point as I see it.
Cohen v. Hurley did not deal where there were five records doctrine at all and as shown by the majority opinion of Mr. Justice Harlan, the Cohen case turned on points refusing to answer some 60 questions.
The answers to which he claimed would tend to incriminate and I check the record.
Cohen didn't refuse as or any at all questions.
On the contrary he answered some but a certain privilege only as to those where the answer might tend to incriminate.
And Mr. Justice Black in the dissenting opinion, in Footnote 3 pointed out, quite clearly that because the Cohen case “hinged” I'm quoting when I use the word “hinged”, on the refusal of Mr. Cohen to answer questions that had been asked.
Mr. Justice Black put the point of view that his constitutional rights had been violated.
Now, we have just the opposite kind of case here.
I say the dominant controlling fact from the first hearing on June 12, 1958 until the last hearing in January 1962.
The only thing that kept the man, all we want are the records.
Chief Justice Earl Warren: Mr. Cohen -- Mr. Klein, may I ask you this about that subpoena.
Mr. Solomon A. Klein: Yes.
Chief Justice Earl Warren: That did -- did not that subpoena command him to bring to the Court every financial transaction that he might have had in those five years without regard to whether it had anything to do with this class of business or not?
Mr. Solomon A. Klein: Oh, no.
Chief Justice Earl Warren: Well, I'm --
Mr. Solomon A. Klein: But because the subpoena at the very top says, “In connection with your business as an attorney” and --
Chief Justice Earl Warren: Well, as an attorney, yes.
But I mean without regard to whether it had any application to these contingent contacts.
Mr. Solomon A. Klein: Oh!
On the contrary, I would like to put it this way.
The petitioner here pursuant to the special rules filed with the Appellate Division in a period of seven and a half years, 1,062 returning statements at over a 140 cases a year.
It was in connection with that business as a single practitioner that we -- he was served with this subpoena to produce records pertaining to his business as an attorney.
That's the only business he has.
Chief Justice Earl Warren: How do we know that's the only financial business that he had as an attorney and how did you know that it was the only business he had?
Mr. Solomon A. Klein: Well, I should think that anyone hearing the (Inaudible) 40 cases a year is pretty well occupied.
Chief Justice Earl Warren: Well, pretty well occupied, yes.
But a man might have other financial institute --
Mr. Solomon A. Klein: Well --
Chief Justice Earl Warren: -- other financial arrangements and you demanded every financial transaction that he had.
Mr. Solomon A. Klein: Well, he could very easily Your Honor.
Say, I produce this which relate to my business as an attorney and do not produce those that are purely private.
May I add that it is in the record --
Chief Justice Earl Warren: I thought -- I thought he was charged with not producing those records which were within the rules?
Mr. Solomon A. Klein: He was charged with refusal to produce records he was required to keep it.
Chief Justice Earl Warren: Yes.
Mr. Solomon A. Klein: He was barred because of that ground.
Chief Justice Earl Warren: Yes.
And are you not bound to all by the scope of the subpoena?
Mr. Solomon A. Klein: Well, may I call Your Honor's attention to his statement, the petitioner's statement, of the record at page 31 to 32, when he first claimed privilege and the Court said, “You better state it again.
The subpoena calls for the production of the books.
They have not been produced.”
The witness: “Whatever records, Your Honor, that were available to me, I could physically if I have obtained the time.
Get them together and --
Justice Tom C. Clark: Mr. Klein, where you reading from?
Mr. Solomon A. Klein: At record pages 31-32.
Chief Justice Earl Warren: Page?
Mr. Solomon A. Klein: In this record.
Justice Potter Stewart: Just follow at page 31.
Mr. Solomon A. Klein: At the bottom of page --
Justice Hugo L. Black: Oh, bottom of page 31.
Justice Potter Stewart: Towards this -- towards the bottom of the page.
Below the sentence --
Mr. Solomon A. Klein: “I could them together on the package and in bundle and bring them here along side to me, therefore, if I may say the matter of producing production of the records are all having them here physically is not an issue.”
Court said, “Alright, bring that up now.”
And his attorney says, “Thank you.”
And the witness said, “That the only matter in issue is the refusal to turn them over.
It is quite clear as I see it that the position of the petitioner was that he won't produce anyone of the records.”
Justice Abe Fortas: Yes, but the demand was for records beyond the records that he was required to keep that --
Mr. Solomon A. Klein: Well, I'm not saying here.
Although, I express the opinion --
Justice Abe Fortas: Sir?
Mr. Solomon A. Klein: -- perhaps I will express the opinion on broad side and no right to lose some.
The New York Court of Appeals said, didn't distinguish, they make a distinction as I drew among with regard.
The New York Court of Appeals speaking for the State of New York say, these are the required records.
I merely indicated of what my practice is since --
Justice Abe Fortas: Then 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.
Mr. Solomon A. Klein: Well, no -- no it wouldn't.
Justice Abe Fortas: Why not?
Mr. Solomon A. Klein: Because if the other records -- they have not to come within the require record is not true.
He would have the privilege as to that, but he has no privilege.
Justice Abe Fortas: I'm not sure.
But are you sure about that?
Mr. Solomon A. Klein: I feel --
Justice Abe Fortas: You say that the common understanding below is that if you produce some of the records relating to a given subject matter that -- that's a waiver of the privilege as to the balance of the record relating to the subject matter.
Am I wrong about that?
Mr. Solomon A. Klein: I -- I wouldn't agree with that.
It's an argument that could be made.
But I would disagree with this reason.
But under the doctrine of Shapiro against U.S., he has a 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 and also as to the refuse to answer -- give all testimony that may tend to incriminate.
Justice Abe Fortas: That's very nice.
Mr. Solomon A. Klein: I hope I answer that.
Your Honors, we -- in the performance of our duties.
We don't want to deprive anyone lawyer or not lawyer of his constitutional rights but I say that a lawyer is entitled to the same constitutional rights as Mr. Malloy the gambler and Malloy against Hogan, and as Mr. Shapiro, the wholesale fruit dealer in the Shapiro case.
But he is not entitled to a greater rights and that is precisely the effect or the position taken.
Justice William J. Brennan: But I suppose Mr. Klein, these were again the same situation that Cohen and Hurley if that is, suppose we have here only a refuse to the answers-question on the ground of the privilege.
That's all we have left.
Since Malloy would you be taken the position that he could be disbarred for a refusal to --
Mr. Solomon A. Klein: My position would be that he could not.
Justice William J. Brennan: Could not?
In other words --
Mr. Solomon A. Klein: And I may say, I think that that is the position of the New York Court of Appeals.
Justice William J. Brennan: Since Malloy?
Mr. Solomon A. Klein: Since Malloy.
Justice William J. Brennan: So what really what this case look down do you suggest.
It's simply that this involved only records therefore Shapiro covers it like a blanket.
Mr. Solomon A. Klein: Yes.
Justice William J. Brennan: And we ought not to reconsider as true.
Mr. Solomon A. Klein: That is correct.
Now, I said --
Justice Hugo L. Black: What page does the Court of Appeals (Inaudible)?
Mr. Solomon A. Klein: Oh!
The Court of Appeals did say that Cohen v. Hurley is overruled.
What the Court of Appeals decided in this case, may I put it this way.
The Court of Appeals affirmed upon the party of Cohen v. Hurley and upon the further ground that a demand not the oral testimony but for records required to be kept by law do not come within the Fifth Amendment privilege.
Now on the facts in this case, coupled with what the Court of Appeals said, here is the holding in this case.
Mainly, that it is not a denial of due process of law or fundamental fairness which is Cohen v. Hurley, to disbar an attorney who refuses to produce unprivileged records.
That is the holding in this case whether or not as a result of the decision in Malloy v. Hogan.
The Cohen v. Hurley case dealing solely with a refusal to answer question that my time to incriminate is overruled I cannot not assume that authority.
I've answered Mr. Justice Brennan on this to what my own point of view is because I happen to believe that no lawyr bunch of case that make him can be deprive of a constitutional right and merely because are all required to relinquish.
Put it that way because that's the way they brief repeats it to relinquish a constitutional right in order to hold on to a job or to be a lawyer.
That's my personal point of view but I do not speak for the Court of Appeals.
In this case, I submit the New York Court of Appeals fully aware of this Court's mandate under Malloy v. Hogan that we must follow the federal standard did precisely that.
And now, my learned adversary is asking to this Court really to say to the New York Court of Appeals, “Mr. Court of Appeals, you had no business following our standard as enunciated in Shapiro and other cases.
There are others, the Fair Labor Standards Act is a good one where federal statutes are involved.”
I submit sir, I would add this.
This emphasis on the language selected from the opinion of the Appellate Division is on warrant and for this reason.
First of all, its no -- I don't mean any disrespect to this Court for me to say that Your Honors do not seek to revise the opinions of an intermediate cause of the states.
It is only to correct judgments involving federal questions rendered by the highest court of the State of New York.
And I submit sirs, that on the judgment here and on the particular facts of this case.
The constitutional rights of the petitioner or no way violated.
And I submit that is evident to be held otherwise then not only New York but every state in the union would simply be frustrated in any reasonable efforts to control the abuses in contingent fee negligence practice.
Justice John M. Harlan: Well, if you state (Inaudible)?
Mr. Solomon A. Klein: The rational as I understand is this, that where anyone lawyer or anyone else engages in any activity which is subject to Government regulation in there.
Government has a strong social-economic interest that in order to enforce those regulations.
Records must be kept then such records do not come within the reach of the Fifth Amendment privilege.
Justice John M. Harlan: (Inaudible)
Mr. Solomon A. Klein: Well, I wouldn't say it is all the written.
I would rather put it at the -- there's never intended that the Fifth Amendment should even reach that type of situation.
I don't like -- I am not -- I don't think it cuts down the Fifth Amendment.
It's that the Fifth Amendment doesn't reach it.
Justice John M. Harlan: (Inaudible)
Mr. Solomon A. Klein: That -- well that is the effect of it.
Justice John M. Harlan: (Inaudible)
Mr. Solomon A. Klein: That is right.
And I suggest sirs, that that is the thought expressed by Mr. Justice Bradley.
It was carried on in the Fair Labor Standards Act where the federal government steps in, in order to protect minimum wages, maximum allowance, requiring those engagements to state commerce, the employers to keep records as to the wages paid in hours work in order to protect the economy our country.
And this Court, the case is cited in the Shapiro case, United States against Darby, unanimously upheld that kind of a valid regulation.
And surely, even my adversary next on contention that the special rules regulating the (Inaudible) of attorneys are invalid.
One further thought subject to any further questions.
Here is a lawyer who pursuant to the rules filed statements of retainer, gave information, profited by the permission granted to engage in extensive contingent fee negligence practice and after he did so, he was called upon to account.
He then says, “I won't”.
And he won't even answer any question.
“I'm not aware of any federal case.
I never said that any witnesses distinguish from the defendant; reference is made to Griffin against California as distinguished from the defendant that any witness called in inquiry where no charge is made against him and interpose a blanket of refusal to answer any questions at all.
As far as I'm aware about federal and state law agreed that he has no such right.
I submit sir that the judgment should be upheld.