RESPONDENT: Solomon A. Klein
LOCATION: Samuel Spevack's Office
DOCKET NO.: 62
DECIDED BY: Warren Court (1965-1967)
CITATION: 385 US 511 (1967)
ARGUED: Nov 07, 1966
DECIDED: Jan 16, 1967
Facts of the case
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?
Media for Spevack v. Klein
Audio Transcription for Oral Argument - November 07, 1966 in Spevack v. Klein
Number 62, Samuel Spevack, petitioner, versus Solomon A. Klein.
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.