A Lawyer's Privilege Against Self-Incrimination in Professional Disciplinary Proceedings

Abstract

Historically, lawyer disciplinary proceedings appear to have been summary, although a full hearing generally was accorded if the lawyer contested the charge. Today, prehearing administrative inquiry usually differentiates among minor disciplinary grievances, serious but uncontested charges, and serious contested charges. In this final category, the accused has a right to a trial-type hearing. The nature of the cases that reach this stage makes it particularly likely that the one intricate procedural issue that can influence the outcome of the trial is the privilege against selfincrimination. Under the Supreme Court's interpretation of this privilege, lawyers enjoy less protection than might be supposed. Documents in their hands can generally be used against them, and in certain circumstances so can their refusal to testify. In substance, contested disciplinary proceedings are quasi-criminal. Disciplinary procedures have evolved to reflect changes in the professional community; the limited privilege available to attorneys strikes a reasonable balance between the modern lawyer's interest and those of the aggrieved party and of the public.