SPEVACK V. KLEIN, 385 U. S. 511 (1967)

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U.S. Supreme Court

Spevack v. Klein, 385 U.S. 511 (1967)

Spevack v. Klein

No. 62

Argued November 7, 1966

Decided January 16, 1967

385 U.S. 511


In a proceeding to discipline petitioner, a member of the New York bar, for professional misconduct for failure to produce demanded financial records and for refusal to testify at a judicial inquiry, petitioner defended on the ground that production of the records and his testimony would tend to incriminate him. The Appellate Division of the New York Supreme Court ordered him disbarred, holding that the privilege against self-incrimination was not available in light of Cohen v. Hurley, 366 U. S. 117. The New York Court of Appeals affirmed on the authority of Cohen v. Hurley and on the further ground that the Fifth Amendment privilege does not apply to a demand not for oral testimony, but for records required by the Appellate Division to be kept by an attorney.

Held: The judgment is reversed. Pp. 385 U. S. 512-520.

16 N.Y.2d 1048, 213 N.E.2d 457, 17 N.Y.2d 490, 214 N.E.2d 373, reversed.


1. The Self-Incrimination Clause of the Fifth Amendment, which has been absorbed in the Fourteenth, extends its protection to lawyers, and should not be watered down by imposing the dishonor of disbarment and the deprivation of livelihood as a penalty for asserting it. Cohen v. Hurley, supra, is overruled. Pp. 385 U. S. 514-516.

2. Since petitioner had been disbarred on the theory that the privilege against self-incrimination was applicable to the demanded records, but that the invocation of the privilege could lead to disbarment, his disbarment cannot be affirmed on the ground that the privilege was not applicable thereto in the first place, as that would deny him an opportunity to show that the records demanded were outside the scope of the court rule requiring attorneys to keep records relating to contingent fee cases, and that the records demanded had no "public aspects." Pp. 385 U. S. 516-519.

MR. JUSTICE FORTAS concluded that:

1. Cohen v. Hurley should be overruled, and petitioner cannot be disbarred for asserting his privilege against self-incrimination. Pp. 385 U. S. 519-520.

Page 385 U. S. 512

2. The right of a lawyer who is not an employee of the State to remain silent is to be distinguished from that of a public employee who is asked questions by his employer directly relating to the performance of his official duties. P. 385 U. S. 519.

3. As stated in MR. JUSTICE DOUGLAS opinion, the issue of the validity and scope of the required records doctrine is not appropriately presented here. P. 385 U. S. 520.

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