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Fifth Amendment Implications in Disciplinary Proceedings

10/27/2020

October 27, 2020

The Commission’s authority to register and discipline members of the state bar is derived from Illinois Supreme Court Rule 751. In addition, the Commission has the power to compel testimony and the production of documents from witnesses, pursuant to Illinois Supreme Court Rule 754.  
                                     
Disciplinary investigations and proceedings are generally considered to be quasi-criminal in nature. In re Ruffalo, 390 U.S. 544, 551 (S. Ct. 1968). However, under Commission Rule 251 discovery is conducted in accord with the Code of Civil Procedure, and Commission Rule 273 provides that the admissibility of evidence in Commission proceedings is governed by the Code of Civil Procedure and Rules of the Supreme Court.

While disciplinary proceedings pertain to whether the respondent violated the Rules of Professional Conduct, and potential discipline ranges from censure to disbarment, on occasion, a respondent’s alleged misconduct investigated and prosecuted by the Commission is also violative of criminal statutes. In such scenarios, a respondent maintains the ability to invoke his or her Fifth Amendment rights in response to the Commission’s requests for information, even though disciplinary proceedings are quasi-criminal in nature, and are governed by the Code of Civil Procedure.

The Fifth Amendment of the US Constitution provides that no person shall be compelled in any criminal case to be a witness against himself, and applies to the states by way of the Fourteenth Amendment. The right against self-incrimination has been extended to protect defendants in civil cases from being compelled to provide testimony that might incriminate them in a criminal case, and to protect recipients of subpoenas for documents—not just testimony— if the mere act of production could be considered testimonial in nature, and that testimony might incriminate the subpoena recipient. United States v. Hubbell, 530 U.S. 27, 36 (2000).

Balancing Fifth Amendment Privilege and Duty of Attorneys: In re Zisook

On the other hand, the state, the legal profession, and the Illinois Supreme Court have significant interests in maintaining the integrity of the bar in Illinois. So vital is this interest that attorneys are expected to assist the Commission. In re Zisook, 88 Ill. 2d 321, 331 (1981). Commission Rule 53 provides that it is the duty of every attorney who has knowledge of facts pertinent to an investigation or proceeding to provide that information to the Commission upon written request.

In In re Zisook, the Illinois Supreme Court attempted to balance these competing interests. The Commission in Zisook issued subpoenas for testimony and documents to three respondents who were subjects of a pending federal grand jury investigation. The respondents refused to appear and testify or produce documents, each claiming that doing so would violate his privilege against self-incrimination. The Commission filed a petition for rule to show cause against the respondents for failing to comply with the subpoenas.

The Court held that it was inappropriate to vest complete discretion in the attorney-respondent in applying the privilege against self-incrimination, citing the likelihood that the privilege would be abused. The Court further held that it was inappropriate for the attorneys to make a blanket claim of privilege and refuse to appear as required in the subpoenas. The Court required that instead, an attorney making a Fifth Amendment claim of privilege with respect to a subpoena testificandum must appear and assert the privilege as to each incriminating question. Similarly, with respect to a subpoena duces tecum, the Court required that an attorney-respondent must appear with the subpoenaed papers and assert the privilege with respect to each document request. The Court held that thereafter, the Commission can petition for judicial review as to the validity of the privilege claims. Zisook, 88 Ill. 2d at 333. The Court provided that once the Commission files the petition with the Clerk of the Supreme Court, the Clerk would refer the matter to the chief judge in the circuit court where the proceeding was being conducted, who would then designate a judge to hear the matter. Id. This procedure providing for judicial review of a respondent’s privilege claims was subsequently codified by Rule 754(f). 

In reviewing the validity of the assertion of privilege, the reviewing court is to look at all of the facts and circumstances of the case, and the attorney-respondent should be allowed to provide whatever proof he or she wishes to show that an answer may be incriminating. In order to justify his or her claim of privilege, the attorney-respondent need only establish that an answer is likely to incriminate the attorney-respondent. 88 Ill. 2d at 334.

Even when a respondent is able to justify his or her claim of privilege, however, their refusal to testify or provide documents may serve to hinder the respondent’s defense in disciplinary proceedings. It is the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties in civil actions when they refuse to testify in response to probative evidence offered against them. People v. 1,124,905 United States Currency, 177 Ill. 2d 314, 332 (1997). As the admission of evidence in disciplinary proceedings is governed by the Code of Civil Procedure, an attorney-respondent’s assertion of his or her Fifth Amendment rights in response to the Commission’s request for testimony and/or documents would likely serve as an adverse inference in the attorney-respondent’s disciplinary proceedings. 

By its holding in Zisook and through Rule 754, the Illinois Supreme Court has sought to balance the competing interests of the state and the Court in maintaining the integrity of the bar with the rights of respondents. While a respondent may prevail in his or her assertion of privilege, assertion of the privilege may later serve as an adverse inference, hindering his or her defense in disciplinary proceedings.