Zuckerman v. Greason, 21 N.Y.2d 430 (1968)
The Fifth Amendment’s protection against self-incrimination applies only to criminal cases, not to attorney disciplinary proceedings, and thus does not prevent the use of an attorney’s disclosures in such proceedings, provided those disclosures cannot be used against them in a criminal case.
Summary
This case addresses whether an attorney’s disclosures in a disciplinary proceeding, made under the then-existing (but later overruled) precedent that compelled such testimony, can be used against them. The Court of Appeals held that the Fifth Amendment’s protection against self-incrimination applies only to criminal cases, not disciplinary proceedings. Therefore, the disclosures can be used in disciplinary actions, as long as they are not used in subsequent criminal proceedings against the attorney. The court reasoned that lawyers, as officers of the court, are subject to the Appellate Division’s supervisory powers, and the constitutional privilege against self-incrimination is limited to evidence that could be used in a criminal case.
Facts
Appellants Zuckerman and Haber, attorneys, were subject to disciplinary proceedings. Charges against them included submitting misleading medical bills to insurance companies, building up medical bills by referring clients to specialists unnecessarily, and using investigators to solicit clients in violation of ethical canons. Initially, Zuckerman was disbarred and Haber was suspended. The Appellate Division sustained several charges, including a charge against Zuckerman for failure to cooperate by invoking the Fifth Amendment regarding his tax records.
Procedural History
The Appellate Division initially disbarred Zuckerman and suspended Haber. The U.S. Supreme Court granted certiorari, vacated the Appellate Division’s order, and remanded the case in light of Spevack v. Klein, which overruled Cohen v. Hurley. On remand, the Appellate Division modified its order to dismiss the charge related to Zuckerman’s Fifth Amendment invocation but otherwise reinstated its prior decision. The New York Court of Appeals reversed this decision due to lack of due process (failure to provide notice and an opportunity to be heard) and remanded the matter to the Appellate Division. After a hearing, the Appellate Division reinstated its prior order, leading to this appeal.
Issue(s)
Whether disclosures made by attorneys in disciplinary proceedings can be used against them in those proceedings when the disclosures were made under the compulsion of then-existing precedent that has since been overruled, and whether such use violates the Fifth Amendment privilege against self-incrimination.
Holding
No, because the Fifth Amendment’s protection against self-incrimination applies only in criminal cases and does not prevent the use of an attorney’s disclosures in a disciplinary proceeding, provided those disclosures cannot be used against them in a criminal case.
Court’s Reasoning
The court reasoned that disciplinary proceedings are civil in nature, not criminal. The Fifth Amendment explicitly states that no person “shall be compelled in any criminal case to be a witness against himself” (italics supplied). Therefore, the constitutional privilege only applies to evidence that might be used against the individual in a criminal case. While the attorneys may have believed they were compelled to disclose information under the authority of Cohen v. Hurley, which at the time allowed disbarment for invoking the Fifth Amendment, the subsequent decision in Spevack v. Klein only prevents disbarment *solely* for invoking the Fifth Amendment. It does not create a blanket privilege to withhold evidence in disciplinary proceedings that could not lead to criminal prosecution. The court emphasized that lawyers are officers of the court, subject to the Appellate Division’s supervisory powers. They can choose to reveal their professional conduct for scrutiny. The court distinguished Garrity v. New Jersey, noting it concerned the review of criminal convictions, whereas this case involves disciplinary proceedings. Judge Cardozo’s language from Matter of Rouss was quoted: “But to bring him within the protection of the Constitution, the disclosure asked of him must expose him to punishment for crime.”