Monday, February 2, 2009

Fifth Amendment In Bar Discipline

The Illinois Review Board has recommended a two year suspension with reinstatement conditioned on further court order in a case involving possession and use of cannibis and cocaine. The board denied a motion to submit the case as an agreed matter because of an issue that arose during the hearing of the case.

The Administrator had called the lawyer as a witness and he refused to answer certain questions on Fifth Amendment grounds. The Administrator then sought an unfavorable inference and to have the invocation treated as a sign that the lawyer was not candid and cooperative. The board here disagreed:

[A prior case] provides a method by which the rights of the respondent and the needs of the Commission can both be accommodated. A witness desiring to claim the privilege against self-incrimination must appear and do so in answer to each incriminating question, as Respondent did in this case. At that point, the Commission may seek judicial determination of the validity of the claim from the Chief Judge of the circuit in which the proceeding is located. The Chief Judge will assign a judge to hear the matter, who will consider all of the facts and circumstances of the case in order to determine whether Respondent’s assertion of the privilege is justified. In re Zisook, id., 88 Ill.2d at 333, 430 N.E.2d 1037, 58 Ill. Dec. 786.

No judicial determination was requested in this case. Without following the procedures set forth in Zisook, Respondent’s assertion of his rights under the Fifth Amendment to the United States Constitution was presumptively valid. And while it was wholly appropriate for the Hearing Board to draw an adverse inference from Respondent’s assertion of the Fifth Amendment for purposes of their function as a fact-finding body, (see In re Ellis, 97 CH 63 (Hearing Board, August 11, 1999), affirmed, (Review Board, February 15, 2000), approved and confirmed, No. M.R. 16744 (May 17, 2000); In re Hirschtick, 05 CH 32 (Hearing Board, April 13, 2007), approved and confirmed, No. M.R. 21668 (September 18, 2007)) it was inappropriate for the Hearing Board to have treated that assertion as tantamount to a "failure to cooperate" or as an aggravating factor for purposes of imposing discipline.

(Mike Frisch)

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