Facts of the Case
A disbarment proceeding for professional misconduct was brought against the petitioner, a member of the New York Bar, on a charge of refusing to honor a subpoena duces tecum in that he refused to produce the demanded financial records and refused to testify at the judicial inquiry. The petitioner’s sole defense was that the production of the records and his testimony would tend to incriminate him. The Appellate Division, Second Department, of the New York Supreme Court, ordered the petitioner disbarred, holding that the constitutional privilege against self-incrimination was not available to him as a lawyer under
Is the Self-Incrimination Clause of the Fifth Amendment applicable against states when the person claiming the right against self-incrimination is an attorney?
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.
- Citation: 385 US 511 (1967)
- Argued: Nov 7, 1966
- Decided Jan 16, 1967