Cohen v. Hurley

Background

A New York lawyer who filed many contingent-fee retainer statements was called to a court inquiry into alleged improper solicitation of clients. He refused to produce records and declined to answer about sixty questions, asserting a state privilege against self-incrimination. The investigating judge warned him his refusal could lead to disciplinary action, and the Appellate Division ordered his disbarment; the state’s highest court affirmed and the United States Supreme Court reviewed the case.

Reasoning

The Supreme Court majority held that New York could constitutionally disbar the lawyer for refusing to cooperate in a judicial inquiry about possible professional misconduct. The Court relied on history and the long tradition of courts disciplining their officers, described the lawyer’s special role as an officer of the court, and said the State may treat disciplinary inquiries differently from criminal prosecutions. The majority emphasized that the disbarment punished the lawyer’s refusal to perform obligations owed to the court, not simply the invocation of the privilege, and limited federal review to whether the State acted arbitrarily or discriminatorily.

Real world impact

Because the Court affirmed, state courts can use disciplinary procedures to remove lawyers who refuse to answer certain judicial inquiries even when invoking a state self-incrimination privilege. The decision creates a practical risk that asserting silence in such inquiries can lead to loss of a law license, while leaving open differences between disciplinary and criminal procedures.

Dissents or concurrances

Several Justices strongly dissented, arguing the Fifth Amendment privilege (as incorporated into the Fourteenth) protects a lawyer from disbarment for claiming the privilege and warning the ruling threatens lawyer independence and other constitutional safeguards.