Cohen v. Hurley

Argument of Denis Hurley Chief Justice Earl Warren Albert Martin Cohen, Petitioner, versus Denis M. Hurley. Mr. 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.