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Statements in Disciplinary Proceeding May Be Used in a Criminal Prosecution

by Gary Muldoon
Muldoon & Getz
Rochester, New York 

An attorney may be questioned under oath during a disciplinary proceeding. The attorney may also potentially be facing criminal charges. If the attorney testifies in one proceeding, can those statements be introduced in the other?

The Fifth Amendment bars a person from being compelled to testify against himself. Thus, in a disciplinary proceeding, the attorney may refuse to answer questions, and discipline may not be imposed solely because of invoking the constitutional right. Spevack v Klein, 385 US 511 (1967).

But an adverse inference may be drawn refusing to answer. Thus, failing to answer, or otherwise cooperate with the investigation is disciplinable. Together with other evidence, that can form a basis for uncontested evidence of professional misconduct. Matter of Kapchan, 86 AD3d 110 (1st Dept 2011).

Discipline may include interim suspension. Matter of Snyder, 71 AD3d 140 (1st Dept 2010).

Use in criminal proceeding

If the attorney makes statements (whether under oath or not) in a disciplinary proceeding, those statements may be thereafter be used in a criminal proceeding. People v Jobi, 37 Misc 3d 954 (Sup 2012).

Turning over records 

Related to the Fifth Amendment is turning over records, which is often required in disciplinary proceedings. See Matter of Resti, 287 AD2d 36 (4th Dept 2001). An attorney may not invoke the constitutional right merely to avoid turning over records that an attorney is required to maintain. Again, an adverse inference may be drawn from failing asserting the constitutional right in not turning over documents. Matter of Reis, 96 AD3d 53 (1st Dept 2012).

 © 2013 by Gary Muldoon