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The Self-Incrimination Clause of the Fifth Amendment has been absorbed in the Fourteenth Amendment, it extends its protection to lawyers as well as to other individuals, and it should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for asserting it.
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 Cohen v. Hurley, 366 U.S. 117. The Court of Appeals of New York affirmed.
Was the constitutional privilege against self-incrimination unavailable to the petitioner as a lawyer?
On appeal, Cohen v. Hurley, 366 U.S. 117, was overruled, and the court held that the self-incrimination clause of U.S. Const. amend. V, was absorbed by U.S. Const. amend. XIV and applied to everyone. Petitioner could not be disbarred if he raised his privilege against self incrimination under U.S. Const. amend V. The court reversed the finding that alternatively disbarred petitioner because he refused to produce subpoenaed documents on the grounds that it would incriminate him. The U.S. Const. amend. V privilege did not extend to records. Basing disbarment on petitioner's assertion of this privilege was improper. Petitioner should have been given an opportunity to show that the requested documents were outside the scope of the required records rule and were private papers with no public aspects.