Attorneys–Self-Incrimination–The Attorney’s Privilege Against Self-Incrimination in a Disbarment Proceeding

A state court has jurisdiction to deal with the alleged misconduct of attorneys practicing before it either explicitly by statute or by ‘ virtue of its power to control the conduct of its own affairs. Indeed, it can suspend or disbar an attorney who fails to maintain the standard of conduct established for members of the legal profession. One aspect of such a standard is that an attorney is bound not to obstruct the administration of justice, a duty which imposes upon him an affirmative obligation to cooperate with the courts. The question frequently arises whether, in order to satisfy the requisite standard of cooperation, an attorney must forfeit his privilege against self-incrimination. Courts have consistently held that an attorney cannot be disbarred for having asserted the privilege in a previous criminal trial or grand jury proceeding, but differences of opinion have arisen when an attorney has invoked the privilege during a judicial inquiry into alleged unprofessional activities of members of the bar. In Cohen v. Hurley, the United States Supreme Court upheld the constitutionality of an attorney’s disbarment on the ground that, in the course of such an investigation, the attorney had breached his duty to cooperate with the courts by invoking the privilege contained in the New York Constitution. The dissenters in Cohen stated that if the states were governed by the fifth amendment, state courts could not disbar an attorney merely because he had invoked the privilege. Subsequently, the Court held in Malloy v. Hogan that the fifth amendment privilege against self-incrimination was enforceable against the states through the due process clause of the fourteenth amendment, and, in Griffin v. California, it held that no inference of guilt could be drawn merely because a person has invoked the privilege. The question now arises whether, in light of those decisions, Cohen v. Hurley is still good law. A New York court recently stated that the Cohen decision is in no way impaired by Malloy, a conclusion which warrants examination.