May 4, 2005
N.Y. Court of Appeals Rejects Partnership's Fifth Amendment Privilege Claim for Business Records
The New York Court of Appeals adopted the Supreme Court's approach to the availability of the Fifth Amendment privilege against self-incrimination for collective entities when it rejected a claim under the New York Constitution that a broad subpoena for a law partnership's records could be resisted on Fifth Amendment grounds. The New York Attorney General's office was investigating the law firm for possible involvement in possible insurance fraud involving faked accidents, and subpoenaed the firms business records. The law firm argued that the state constitution's self-incrimination privilege was broader than that afforded by the U.S. Constitution, which would not allow a collective entity to assert the Fifth Amendment to resist production of records, even if they are incriminating of the partners.
In In the Matter of Nassau County Grand Jury Subpoena Duces Tecum Dated June 24, 2003, "Doe Law Firm," et al. (here), the New York Court of Appeals relied on Bellis v. United States, 417 U.S. 85 (1974), which denied a Fifth Amendment claim advanced by a three-person law firm. The Court of Appeals held that the partnership, subpoenaed for a broad array of business records (the list of documents covers 16 paragraphs that encompass virtually all the firm's business records for a four year period), could not rely on Article 1, Sec. 6 of the New York Constitution (here), which provides "nor shall he or she be compelled in any criminal case to be a witness against himself or herself . . ." In adopting Bellis as the proper interpretation of the New York Constitution, the court stated: "Under our 'noninterpretive' analysis of the state and federal constitutional provisions, we conclude that none of the factors that would suggest a broader reading of Article I, § 6 are present." As discussed in the post above, there may be Fifth Amendment issues related to former AIG CEO Maurice Greenberg's files at his offices in New York City, and the self-incrimination analysis will be the same regarding AIG's business records under federal and New York state law. An article from the New York Law Journal (available on Law.Com here) discusses the decision. (ph)
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