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Responding to an attorney-discipline investigation in Maryland often involves balancing the requirement to cooperate with Bar Counsel, versus the need to prepare a vigorous defense. The equation is made more nettlesome when the right against self-incrimination is invoked, primarily because of confusion concerning the Fifth Amendment's impact on attorney-discipline cases.

The Supreme Court has held that the Fifth Amendment "not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him or her not to answer official questions put to him or her in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings."As part of these protections, the Supreme Court has held that an attorney may not be disciplined for invoking the Fifth Amendment privilege against self-incrimination in an attorney disciplinary proceeding.

In Spevack v. Klein, the Supreme Court considered a disbarment proceeding against an attorney who refused to honor a subpoena, product documents, and testify because to do so would potentially incriminate him. The attorney-respondent in Spevack invoked the Fifth Amendment and the trial court ordered disbarment because it found the Fifth Amendment was not applicable to him because he was an attorney.

The Supreme Court reversed and found that under the Fifth Amendment, an attorney who invokes the Fifth Amendment can suffer "no penalty," meaning "the imposition of any sanction which makes the assertion of the Fifth Amendment privilege costly."The Court found that the Fifth Amendment is to be construed broadly and that the "privilege has consistently been accorded a liberal construction."Importantly, attorneys are "not excepted" from the protections of the Fifth Amendment because the "threat of disbarment and the loss of professional standing, professional reputation, and of livelihood are powerful forms of compulsion to make a lawyer relinquish the privilege."

The Court of Appeals in Maryland has long-recognized that attorney disciplinary matters require basic due process protections,including the Fifth Amendment.While there is not a significant body of case law analyzing the Fifth Amendment in the context of ethics cases, the Maryland Court of appeals has held that the Fifth Amendment applies in attorney discipline cases.Indeed, the Court of Appeals has cited Spevack with approval for the proposition that as for inquiries from Bar Counsel, "the attorney's duty to respond is qualified by the privilege against self-incrimination." Given the approach taken by the Court of Appeals and the Attorney-Grievance Commission, practitioners should be mindful of two things when invoking the Fifth Amendment in attorney discipline cases.

First, anticipate that Bar Counsel may allege that an assertion of the Fifth Amendment is somehow a failure to cooperate with its investigation which amounts to a violation of Maryland Rule 19-308.1. While this is unlikely, it is important to make clear that any assertion of the Fifth Amendment is consistent with one's cooperation with Bar Counsel's investigation.

Second, anticipate that bar counsel will likely try to penalize the assertion of the Fifth Amendment, likely via an evidentiary ruling by the trial court prior to trial. When faced with an argument that any such ruling would likely run afoul of Spevack and Maryland case law, Bar Counsel will likely argue that no penalty has yet occurred since no sanction has yet been entered by the Court of Appeals. But that should not matter given that Spevack holds the imposition of "any sanction which makes the assertion of the Fifth Amendment privilege 'costly,'"is improper, and that the "threat of disbarment"is sufficient to constitute such a sanction. Accordingly, it should not matter that a respondent-attorney was not immediately disbarred or otherwise disciplined; rather, what matters is that the respondent-attorney invoked the Fifth Amendment and was penalized in some fashion for doing so.

The bottom line is, the Fifth Amendment applies in attorney-discipline cases and respondent-attorneys have a right to assert it just like any other party in a case. Accordingly, the trial and appellate courts should be wary of allowing Bar Counsel to penalize attorneys for asserting their Constitutional rights, even though the scope of the protections afforded by the Fifth Amendment may potentially be impacted by the specifics of the case.

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Cooperation Versus Self-Incrimination: Asserting the Fifth Amendment in Attorney Discipline Cases - Lexology