Cohen v. Hurley, 366 U.S. 117 (1961)

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Author: Justice Harlan

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Cohen v. Hurley, 366 U.S. 117 (1961)

MR. JUSTICE HARLAN delivered the opinion of the Court.

We are called upon to decide whether the State of New York may, consistently with the Fourteenth Amendment, disbar an attorney who, relying on his state privilege against self-incrimination, has refused to answer material questions of a duly authorized investigating authority relating to alleged professional misconduct.{1}

The issue arises in the context of the so-called Brooklyn "ambulance chasing" Judicial Inquiry which this Court had before it in Anonymous Nos. 6 and 7 v. Baker, 360 U.S. 287. The origins, authority, and nature of the Inquiry have already been sufficiently described in our opinion in that case. There need only be added here that the purpose of the Inquiry, as reflected in the establishing order of the Appellate Division of the Supreme Court of the State of New York, Second Department, was twofold:

to expose all the evil practices [involved in the improper solicitation and handling of contingent retainers in personal injury cases] with a view to enabling this court to adopt appropriate measures to eliminate them and to discipline those attorneys found to have engaged in them.

In re Cohen, 9 A.D.2d 436, 437, 195 N.Y.S.2d 990, 993.

For some years, the Second Department has had a court rule

which requires that an attorney who makes contingent fee agreements for his services in personal injury, wrongful death, property damage, and certain other kinds of cases, must file such agreements with the [Appellate Division], and, if he enters into five or more such agreements in any year, must give to the court in writing certain particulars as to how he came to be retained

(called "Statements of Retainer"). 7 N.Y.2d 488, 493, 199 N.Y.S.2d 658, 660, 166 N.E.2d 672, 674, see Rule 3 of the Special Rules Regulating the Conduct of Attorneys and Counselors at Law in the Second Judicial Department, Clevenger’s Practice Manual, p. 21-19 (1959). Principally as a result of the large number of Statements of Retainer filed by him during recent years, petitioner was called to testify and produce records before the Justice in charge of the Inquiry.{2} Relying on his concededly available state privilege against self-incrimination, petitioner refused to produce the records called for, and to answer some sixty other questions. The subject matter of such questions was summarized by the New York Court of Appeals in its opinion in this case (7 N.Y.2d 488, 494, 199 N.Y.S.2d 658, 661, 166 N.E.2d 672, 674-675) as follows:

. . . Those unanswered questions related to the identity of his law office partners, associates and employees, to his possession of the records of the cases described in his statements of retainer, to any destruction of such records, to his bank accounts, to his paying police officers or others for referring claimants to him, to his paying insurance company employees for referring cases to him, and to his promising to pay to any "lay person" 10% of recoveries or settlements. He was asked -- and refused to answer -- as to whether he had made or agreed to make such payments to any of several named persons, as to whether he had hired or paid nonlawyers to arrange settlements of his cases with insurance companies, and as to whether his partner or associate Rothenberg had been indicted for and had pleaded guilty to violations of sections 270-a and 270-d of the Penal Law, which forbid the solicitation of legal business or the employment by lawyers of such solicitors. . . .

After petitioner had refused to answer these questions, counsel for the Inquiry warned him that "serious consequences," in the form of an exercise of the Appellate Division’s disciplinary power over attorneys practicing before it,{3} might flow from his refusal to respond, even though that refusal was based on a claim of privilege. As the basis for his warning, counsel referred to various provisions of the Canons of Professional Ethics{4} and of the New York Penal Law.{5} Petitioner was then given a further opportunity to respond to the unanswered questions, but he declined, preferring to rely upon his claim of privilege.

Thereafter the Justice in charge of the Inquiry recommended to the Appellate Division that petitioner be disciplined. The Appellate Division ordered respondent Hurley to file a petition for disciplinary action. The ensuing petition sought petitioner’s disbarment, alleging as grounds therefor:

The refusal of . . . Albert Martin Cohen, to produce the records [called for by the Inquiry], and his refusal to answer the questions [summarized above], are in disregard and in violation of the inherent duty and obligation of respondent as a member of the legal profession in that, among other things, such refusals are contrary to the standards of candor and frankness that are required and expected of a lawyer to the Court; such refusals are in defiance of and flant [sic] the authority of the Court to inquire into and elicit information within respondent’s knowledge relating to this conduct and practices as a lawyer; by his refusal to answer the aforesaid questions, the respondent hindered and impeded the Judicial Inquiry that was ordered by this Court; by his refusals, respondent withheld vital information bearing upon his conduct, character, fitness, integrity, trust and reliability as a member of the legal profession. . . .

The Appellate Division ordered petitioner disbarred, saying (9 A.D.2d at 448-449, 195 N.Y.S.2d at 1003):

To avoid any possible doubt as to our position, we state again that the basis for any disciplinary action by this court is not the fact that respondent has invoked his constitutional privilege against self-incrimination, but rather the fact that he has deliberately refused to cooperate with the court in its efforts to expose unethical practices and in its efforts to determine incidentally whether he had committed any acts of professional misconduct which destroyed the character and fitness required of him as a condition to his retention of the privilege of remaining a member of the Bar.

The New York Court of Appeals affirmed, Judge Fuld dissenting.{6} 7 N.Y.2d 488, 199 N.Y.S.2d 658, 166 N.E.2d 672. We granted certiorari because the case presented still another variant of the issues arising in the Konigsberg and Anastaplo cases, ante, pp. 36, 82.

Starting from the undeniably correct premise that a State may not arbitrarily refuse a person permission to practice law, Konigsberg v. State Bar of California, 353 U.S. 252; Schware v. Board of Bar Examiners, 353 U.S. 232, petitioner’s claim that New York’s disbarment of him was capricious rests essentially on two propositions: (1) that the Fourteenth Amendment forbade the State from making his refusal to answer the Inquiry’s questions a per se ground for disbarment; (2) that, in any event, such a ground is not permissible when refusal to answer rests on a bona fide claim of a privilege against self-incrimination.

I

The first contention must be rejected largely in light of our today’s opinions in the Konigsberg and Anastaplo cases. The fact that such refusal was here made a ground for disbarment, rather than for denial of admission to the bar, as in Konigsberg and Anastaplo, is not of constitutional moment. And there is no claim here either that the unanswered questions were not material or that petitioner was not duly warned of the consequences of his refusal to answer. By the same token, those cases also dispose of petitioner’s basically similar contention that the State could proceed against him only by way of independent evidence of wrongdoing on his part.

We do not think it can be seriously contended that New York’s judicial inquiry was so devoid of rational justification that the mere act of compelling even unprivileged testimony was a deprivation of petitioner’s liberty without due process. History and policy combine to establish the presence of a substantial state interest in conducting an investigation of this kind. That interest is nothing less than the exertion of disciplinary powers which English and American courts (the former primarily through the Inns of Court) have for centuries possessed over members of the bar, incident to their broader responsibility for keeping the administration of justice and the standards of professional conduct unsullied. Not only is the practice of such judicial investigations long established, but the subject matter of the present investigation does not lack a rational basis. It is no less true than trite that lawyers must operate in a three-fold capacity, as self-employed businessmen as it were, as trusted agents of their clients, and as assistants to the court in search of a just solution to disputes. It is certainly not beyond the realm of permissible state concerns to conclude that too much attention to the business of getting clients may be incompatible with a sufficient devotion to duties which a lawyer owes to the court, or that the "payment of awards to persons bringing in legal business" is inconsistent with the personally disinterested position a lawyer should maintain.

Finally, it cannot by any stretch be considered that New York acted arbitrarily or irrationally in applying the disciplinary sanction of disbarment to the petitioner. What Mr. Justice Cardozo (then Chief Judge of the New York Court of Appeals) said in the Karlin case is enough to put an end to that contention:

If a barrister was suspected of misconduct, the benchers of his inn might inquire of his behavior. We can hardly doubt that refusal to answer would have been followed by expulsion. There was thus little occasion for controversies as to discipline to be brought before the judges, unless the benchers failed in the performance of their duties. In case they did fail, a supervisory power was ever in reserve. The inns . . . were subject . . . to visitation by the judges. . . . Short shrift would there have been for the barrister who refused to make answer as to his professional behavior in defiance of the visitors.

248 N.Y. 465 at 472-473, 162 N.E. 487 at 490. If more than long lived practice is thought necessary to justify such a sanction, it is to be found in the fact that the denial of continued access to a position that can be misused is permissible to assure that the position may not be held without observance of the obligations lawfully imposed upon it. Revocation of a license for failure to fulfill similar obligations of a licensee is the very sanction which the Federal Government has adopted in a number of situations. See 12 U.S.C. § 481, 47 U.S.C. §§ 308(b), 312(a)(4).

II

A different constitutional conclusion does not result from the fact that petitioner’s refusal was based on a good faith assertion of his state privilege against self-incrimination. Because, from a federal standpoint, there can be no doubt that a State has great leeway in defining the reach of its own privilege against self-incrimination, we regard the scope of federal review here as being limited to the question whether arbitrary of discriminatory state action can be found in the consequences New York has attached to the exercise of the privilege in this instance.

Basic to consideration of this aspect of petitioner’s case is the fact that the State’s disbarment order was predicated not upon any unfavorable inference which it drew from petitioner’s assertion of the privilege, cf. Slochower v. Board of Higher Education, 350 U.S. 551, 557-558; Grunewald v. United States, 353 U.S. 391, 421, nor upon any purpose to penalize him for its exercise, but solely upon his refusal to discharge obligations which, as a lawyer, he owed to the court. The Court of Appeals stated:

Of course, [petitioner] had the right to assert the privilege, and to withhold the criminating answers. That right was his, as it would be the right of any citizen, and it was not denied to him. He could not be forced to waive his immunity. . . . But the question still remained as to whether he had broken the "condition" on which depended the "privilege" of membership in the Bar. . . . "Whenever the condition is broken, the privilege is lost" (citing Matter of Rouss, 221 N.Y. 81, 84-85, 116 N.E. 782 at 782, Cardozo, J.). Appellant, as a citizen, could not be denied any of the common rights of citizens. But he stood before the inquiry and before the Appellate Division in another quite different capacity, also. As a lawyer, he was "an officer of the court, and, like the court itself, an instrument . . . of justice" (citing People ex rel. Karlin v. Culkin, 248 N.Y. 465, 470-471, 162 N.E. 487, 489, Cardozo, J.), with the inevitable consequences that the court which was charged with control and discipline of its officers had its own right to demand his full, honest and loyal cooperation in its investigations, and to strike his name from the rolls if he refused to cooperate. Such "cooperation" is a "phrase without reality" as Chief Judge Cardozo wrote in People ex rel. Karlin v. Culkin, supra, 248 N.Y. at 471, 162 N.E. at 489, if a lawyer after refusing to answer pertinent questions about his professional conduct can retain his status and privileges as an officer of the court.

7 N.Y.2d at 495, 199 N.Y.S.2d at 662, 166 N.E.2d at 675.

We do not think that it can be seriously contended that the unavailability of the state privilege in judicial inquiries of this type amounts to a distinction from criminal prosecutions so irrational as to suggest either a denial of due process or a purposeful discrimination of the kind which violates the Equal Protection Clause of the Fourteenth Amendment. A State may rationally conclude that the consequence of disbarment is less drastic than that of a prison term for contempt, albeit arguments to the contrary can be made as well. It may also rationally conclude that procedures resulting in greater preventive certainty are warranted when what is involved is the right to continue to occupy a position affording special opportunities for deleterious conduct -- opportunities, indeed, created by the State’s original certification of the petitioner’s merit. In this regard, all that New York has, in effect, held is that petitioner, by resort to a privilege against self-incrimination, can no more claim a right not to be disbarred for his refusal to answer with respect to matters within the competence of the Court’s supervisory powers over members of the bar, than could a trustee claim a right not to be removed from office for failure to render accounts which might incriminate him. Finally, where illegal or shady practices on the part of some lawyers are suspected, New York could rationally conclude that the profession itself need not be subjected to the disrespect which would result from the publicity, delay, and possible ineffectiveness in their exposure and eradication that might follow could miscreants only be dealt with through ordinary investigatory and prosecutorial processes. " If the house is to be cleaned, it is for those who occupy and govern it, rather than for strangers, to do the noisome work."

People ex rel. Karlin v. Culkin, 248 N.Y. 465, 480, 162 N.E. 487, 493 (Cardozo, J.).

These bases for affording a procedure in such judicial inquiries different from that in criminal prosecutions are more than enough to make wholly untenable a contention that there has here been a denial either of due process or of equal protection.

Although what has already been said disposes of this case, we take note, in conclusion, of two further considerations. First, it is suggested that the Fourteenth Amendment gave petitioner a federal constitutional right not to be required to incriminate himself in the state proceedings (although, apart from his claim of fundamental unfairness, the petitioner himself does not so contend, note 1, supra). That proposition, however, was explicitly rejected by this Court, upon the fullest consideration, more than fifty years ago, Twining v. New Jersey, 211 U.S. 78,{7} and such has been the position of the Court ever since.{8} See Snyder v. Massachusetts, 291 U.S. 97;{9} Brown v. Mississippi, 297 U.S. 278, 285; Palko v. Connecticut, 302 U.S. 319, 323-324; Adamson v. California, 332 U.S. 46;{10} Knapp v. Schweitzer, 357 U.S. 371, 374. This is not to say, of course, that State have free rein either in the choice of means of forcing incriminatory testimony or in the drawing of inferences from a refusal to testify on grounds of possible self-incrimination, no matter how objectionable or irrational. But these decisions do establish, at the very least, that, to make out a violation of the Fourteenth Amendment, something substantially more must be shown than that the state procedures involved have a tendency to discourage the withholding of self-incriminatory testimony.

It is, however, suggested that such additional factors are to be found in New York’s assertion of a power to grant a state privilege against self-incrimination without including within its sweep protection from disbarment of a lawyer who asserts this privilege during a judicial inquiry into his professional conduct. It is said that this gives rise to a pernicious doctrine whereby lawyers

may be separated into a special group upon which special burdens can be imposed even though such burdens are not and cannot be placed upon other groups.

This argument wholly misconceives the issue and what the Court has held respecting it. The issue is not, of course, whether lawyers are entitled to due process of law in matters of this kind, but, rather, what process is constitutionally due them in such circumstances. We do not hold that lawyers, because of their special status in society, can therefore be deprived of constitutional rights assured to others, but only, as in all cases of this kind, that what procedures are fair, what state process is constitutionally due, what distinctions are consistent with the right to equal protection, all depend upon the particular situation presented, and that history is surely relevant to these inquiries.{11} State banks may be subjected to periodic examinations that would violate the rights of some other kinds of business against unreasonable search and seizure. Compare 12 U.S.C. § 481, with Boyd v. United States, 116 U.S. 616. A state contractor can be deprived of even the rudiments of a hearing on the issue of whether the state executive department is contracting in accordance with applicable state law. Cf. Perkins v. Lukens Steel Co., 310 U.S. 113. The "right" to judicial review of agency determinations can be taken away from railroad employees in one situation, but guaranteed to professional employees in other situations. Compare Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, with Leedom v. Kyne, 358 U.S. 184. A state employee need no longer be entrusted with government property if he refuses to explain what has become of property with which he is charged, though his refusal may be protected against a contempt sanction by a state or federal privilege against self-incrimination. Cf. Lerner v. Casey, 357 U.S. 468.

Clearly enough, factual distinctions are the determinative consideration upon the question of what process is due in each of these cases. Otherwise, making state procedures vary solely on the basis of the given occupation would indeed be nothing less than a denial of equal protection to bankers, contractors, railroad employees, and government employees. On the basis of the factual distinctions that we have mentioned above, we consider that a State can constitutionally afford a different procedure -- the present procedure -- in these judicial investigation from that in criminal prosecutions.

Petitioner’s disbarment is not constitutionally infirm, and the Court of Appeals’ order must be

Affirmed.

1. N.Y.Const. Art. I, § 6. While petitioner, at his appearance before the investigating authority, also claimed a federal privilege not to testify, in his later response to the petition initiating disciplinary proceedings, he relied solely upon

the privilege against self-incrimination guaranteed to all persons, lawyers or laymen alike, under Article I Section 6 of the New York State Constitution.

It is, of course, settled that a Fifth Amendment privilege was not available to petitioner in the present case. See, e.g., Knapp v. Schweitzer, 357 U.S. 371; Lerner v. Casey, 357 U.S. 468, 478. Nor do we understand it to be contended that the Fourteenth Amendment automatically precluded the State from exacting petitioner’s testimony and attaching consequences to his refusal to respond. Cf. Adamson v. California, 332 U.S. 46, 54; Palko v. Connecticut, 302 U.S. 319, 323-324; Twining v. New Jersey, 211 U.S. 78, 110-114. We take the petitioner’s position and the remittitur of the Court of Appeals as presenting, under the Fourteenth Amendment, only a broad claim of fundamental unfairness.

2. The following quotation from the respondent’s brief accurately reflects the record:

During the period 1954 to 1958, inclusive, pursuant to the provisions of said Rule, petitioner, a specialist in negligence cases, filed 228 statements as to retainer in his own name. In addition, 76 such statements were filed in the firm name of Cohen & Rothenberg, thus indicating that petitioner and his law firm had been retained on a contingent basis in a total of 304 negligence cases in five years (R. 33-35). The inquiry therefore deemed it advisable to call petitioner as one of its witnesses.

3. Section 90 of the New York Judiciary Law.

4.

. . . Canon 22 . . . requiring lawyers to be candid and frank when before the court, Canons 28 and 29 forbidding the payment of awards to persons bringing in legal business and requiring lawyers knowing of such practices to inform the court thereof, Canon 34 outlawing division of fees except with other lawyers. . . .

7 N.Y.2d 488, 494, 199 N.Y.S.2d 658, 661, 166 N.E.2d 672, 675. Canons 29 and 34 of the New York Canons of Professional Ethics are found in McKinney N.Y.Laws, Judiciary Law, pp. 774-775. Canons 22 and 28 are found in the 1959 "pocket part," at pp. 210-211. They are similar in all respects to the correspondingly numbered Canons of Professional Ethics of the American Bar Association.

5. N.Y.Pen.Law §§ 270-a, 270-c, 270-d, 276, "all relating to soliciting and fee-splitting." 7 N.Y.2d 488, 494, 199 N.Y.S.2d 658, 661, 166 N.E.2d 672, 675.

6. Judge Fuld dissented on state constitutional grounds, reaching no federal questions.

7.

Even if the historical meaning of due process of law and the decisions of this court did not exclude the privilege from it, it would be going far to rate it as an immutable principle of justice which is the inalienable possession of every citizen of a free government. Salutary as the principle may seem to the great majority, it cannot be ranked with the right to hearing before condemnation, the immunity from arbitrary power not acting by general laws, and the inviolability of private property. The wisdom of the exemption has never been universally assented to since the days of Bentham; many doubt it today, and it is best defended not as an unchangeable principle of universal justice, but as a law proved by experience to be expedient. See Wigmore, § 2251. It has no place in the jurisprudence of civilized and free countries outside the domain of the common law, and it is nowhere observed among our own people in the search for truth outside the administration of the law. It should, must, and will be rigidly observed where it is secured by specific constitutional safeguards, but there is nothing in it which gives it a sanctity above and before constitutions themselves. Much might be said in favor of the view that the privilege was guaranteed against state impairment as a privilege and immunity of National citizenship, but, as has been shown, the decisions of this court have foreclosed that view. There seems to be no reason whatever, however, for straining the meaning of due process of law to include this privilege within it, because, perhaps, we may think it of great value. The States had guarded the privilege to the satisfaction of their own people up to the adoption of the Fourteenth Amendment. No reason is perceived why they cannot continue to do so. The power of their people ought not to be fettered, their sense of responsibility lessened, and their capacity for sober and restrained self-government weakened, by forced construction of the Federal Constitution. . . .

211 U.S. at 113-114.

8. Hence, if any "constitutional privilege against self-incrimination" has here been made a "phrase without reality," it can only have been a state privilege which this Court does not have jurisdiction to protect.

9. "The privilege against self-incrimination may be withdrawn and the accused put upon the stand as a witness for the state." 291 U.S. at 105.

10.

California follows Anglo-American legal tradition in excusing defendants in criminal prosecutions from compulsory testimony. . . . That is a matter of legal policy, and not because of the requirements of due process under the Fourteenth Amendment.

332 U.S. at 54-55.

11. Of course, it is not alone the early beginning of the practice of judicial inquiry into attorney practices which is significant upon the reasonableness of what transpired here. Rather, it is the long life of that mode of procedure which bears upon that issue, in much the same way that a strong consensus of views in the States is relevant to a finding of fundamental unfairness. What is significant is that the practice we are now concerned with has survived the centuries which have seen the fall of all those iniquitous standards of which we are reminded, and which, incidentally, would be equally unconstitutional today if applied after a full criminal-type investigation and trial. While recognizing that the test was not exclusive, this Court stated many years ago:

First. What is due process of law may be ascertained by an examination of those settled usages and modes of proceedings existing in the common and statute law of England before the emigration of our ancestors, and shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country. This test was adopted by the court, speaking through Mr Justice Curtis, in Murray v. Hoboken Land Co., 18 How. 272, 280. . . .

Twining v. New Jersey, supra, at 100.

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Chicago: Harlan, "Harlan, J., Lead Opinion," Cohen v. Hurley, 366 U.S. 117 (1961) in 366 U.S. 117 366 U.S. 119–366 U.S. 131. Original Sources, accessed October 4, 2022, http://www.originalsources.com/Document.aspx?DocID=4A4SJ7BFXHRYU39.

MLA: Harlan. "Harlan, J., Lead Opinion." Cohen v. Hurley, 366 U.S. 117 (1961), in 366 U.S. 117, pp. 366 U.S. 119–366 U.S. 131. Original Sources. 4 Oct. 2022. http://www.originalsources.com/Document.aspx?DocID=4A4SJ7BFXHRYU39.

Harvard: Harlan, 'Harlan, J., Lead Opinion' in Cohen v. Hurley, 366 U.S. 117 (1961). cited in 1961, 366 U.S. 117, pp.366 U.S. 119–366 U.S. 131. Original Sources, retrieved 4 October 2022, from http://www.originalsources.com/Document.aspx?DocID=4A4SJ7BFXHRYU39.