This is the last of three columns on the subject of due process and New York’s discipline system. The first two articles focused, respectively, on (1) the historical, constitutional development of due process rights in attorney discipline cases, both nationally and in New York,1 and (2) particular aspects of New York’s discipline system that implicate due process.2 This column will continue to address specific facets of New York’s discipline system that raise due process questions, to wit: assertion of Fifth Amendment rights; access to discovery; reasoned decisions; and the right to be heard by the court. As in the previous columns, reference will be made to the American Bar Association’s Model Rules for Lawyer Disciplinary Enforcement (“Model Enforcement Rules”), the national guideposts for procedural standards.

Fifth Amendment Rights

Attorneys potentially subject to discipline are required by rule to cooperate with the investigating disciplinary agency.3 Failure to do so can result in immediate, temporary suspension for noncooperation.4 One important exception, however, is the Fifth Amendment right against self-incrimination. In Spevack v. Klein,5 the U.S. Supreme Court held that lawyers facing disciplinary charges, just like parties in civil litigation, are entitled to the Fifth Amendment protection that no person shall be compelled in any case to be a witness against himself and that no exception can be applied.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]