Respondent appeared at the Special Term appointed by this court to investigate conditions at the bar on Staten Island and refused to testify on the ground that his answers would tend to incriminate him. He says he did this because (1) of the advice of two lawyers, who became his counsel, men of large experience and high standing for ability and integrity at the bar, that he should stand on his constitutional rights; (2) he had information and it was a matter of common gossip and newspaper publication that there was a possibility of a criminal investigation of the attorneys on Staten Island and of a petition being presented to the Governor for the purpose of having a special prosecutor to find out about criminal activities of attorneys; and that, while he knew nothing in his past experience that would warrant a charge of a criminal nature against him, he felt that in ten years at the bar one is bound to make enemies and that there might be something unwarranted or unfounded whereby he might be the object of a criminal investigation and indictment. He was not asked any specific questions as to his professional activities. ■
Under these circumstances, it may not be said that respondent acted in bad faith when he refused to answer questions on the ground that the answers would tend to incriminate him. That he had nothing to fear from an investigation-—that is, that he was innocent of any wrongdoing — does not of itself justify a finding of bad faith, for the privilege is “ a protection to the innocent though a shelter to the guilty.”. (Twining v. New Jersey, 211 U. S. 78.) His reliance upon the advice of counsel is, of itself, sufficient upon which to predicate good faith. It can make no difference if the advice were unsound. His later change of attitude after reflection and contrary advice does not impair his good faith', established at the time of his first appearance. In determining good faith in such a situation, the court is inclined to favor the one claiming the privilege. (People ex rel. Taylor v. Forbes, 143 N. Y. 219.)
*568Proceeding upon the assumption that respondent asserted his privilege in good faith, the next question is: May he be disciplined by this court for the position he took before the Special Term which was investigating conditions at the bar in Staten Island? This is a question of vital importance not only to the bar, but to the public generally, and is one that some day should be answered with finality.
To compel one to waive immunity is to deprive him of his constitutional privilege. So the subject may be treated in its broadest aspect — as if the respondent had stood upon his full rights and refused to testify upon the ground that to give answers on the inquiry would be compelling him to be a witness against himself.
Section 88, subdivision 2, of the Judiciary Law provides: “ The Supreme Court shall have power and control over attorneys and counsellors-at-law and all persons practicing or assuming to practice law, and the Appellate Division of the Supreme Court in each department is authorized to censure, suspend from practice or remove from office any attorney and counsellor-at-law admitted to practice as such who is guilty of professional misconduct, malpractice, fraud, deceit, crime or misdemeanor, or any conduct prejudicial to the administration of justice; * * *.”
Has the respondent been guilty of professional misconduct or any conduct prejudicial to the administration of justice?
A lawyer is not entirely a free agent. To be admitted to the practice of the law one must meet certain rigorous tests of character; when admitted he comes under the control of the courts and then, if charged with wrongdoing, the tests of character are renewed. (Matter of Rouss, 221 N. Y. 81.) He is a member of a profession of high ideals and noble traditions. Despite criticism and condemnation, much of which is entirely unwarranted, he remains an important member of his community and occupies a prominent post of trust and confidence. Although not a public officer, he is an officer of the court (Matter of Burchard, 27 Hun, 429; Matter of Dawson v. Knox, 231 App. Div. 490; affd., 267 N. Y. 565), and thus is an agent of law enforcement in duty bound to uphold the dignity and power of the court. He is sworn to uphold the Constitution of the Nation and of the State. He is expected so to conduct himself that his activities will redound to the benefit of general welfare. It would seem necessarily to follow that, when summoned by the court to assist in an investigation of evil practices, it not only becomes his duty, but should be his desire to attend and, if requested to give testimony, to do so without reservation. Surely, no less may be expected of him unless a refusal so to testify is justified by a power to which even the courts must bow.
*569In my opinion, at the time this respondent was called, the law saved an attorney against a charge of misconduct if he refused to answer questions upon the ground that his answers would tend to incriminate him.
Prior to January 1, 1939, the Constitution of the State provided (Art. 1, § 6): “Nor shall he be compelled in any criminal case to be a witness against himself, * * *.”
This privilege obtains in civil as well as in criminal cases. (Matter of Rouss, supra.) There is a similar provision in the Federal Constitution (Amendment V), but it is not effective in the States. (Ensign v. Pennsylvania, 227 U. S. 592; People v. Adams, 176 N. Y. 351.) Section 10 of the Code of Criminal Procedure is to the same effect. Section 355 of the Civil Practice Act provides: “ A competent witness shall not be excused from answering a relevant question, on the ground only that the answer may tend to establish the fact that he owes a debt or is otherwise subject to a civil suit. This provision does not require a witness to give an answer which will tend to accuse himself of a crime or to expose him to a penalty or forfeiture; * * *.”
May there be found in the State constitutional limitation and statutory provision vindication of a refusal to answer in an investigation such as the one that was being conducted by this court?
It will not be necessary to trace the historical development of this prerogative, which was in force in England for many years before it came into the Colonies. It will suffice to note at length what distinguished jurists have written with respect of the provision in this State and the similar provision in the Federal Constitution and, by their impressive and decisive words, to be reminded of the significance of this amnesty and how it has become a vital part of the social and political order for the benefit of the innocent as well as the guilty.
In Boyd v. United States (116 U. S. 616) Mr. Justice Bradley said: “ And any compulsory discovery by extorting the party’s oath, or compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power; but it cannot abide the pure atmosphere of political liberty and personal freedom.”
Mr. Justice Brown in Brown v. Walker (161 U. S. 591) wrote: “ The maxim nemo tenetur seipsum acensare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from *570the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not imcommon even in England. * * * The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment.”
In Twining v. New Jersey (211 U. S. 78) Mr. Justice Moody said in part: “ The exemption from testimonial compulsion, * * * is universal in American law * * *. It was generally regarded then, as now, as a privilege of great value, a protection to the innocent though a shelter to the guilty, and a safeguard against heedless, unfounded or tyrannical prosecutions. * * * The privilege was not included in the Federal Constitution as originally adopted, but was placed in one of the ten Amendments which were recommended to. the States by the first Congress, and by them adopted. Since then all the States of the Union have, from time to time, with varying form but uniform meaning, included the privilege in their Constitutions, except the States of New Jersey and Iowa, and in those States it is held to be part of the existing law.”
In that same case Mr. Justice Harlan wrote in part as follows: “ Certain it is, that when the present Government of the United States was established it was the belief of all liberty-loving men in America that real, genuine freedom could not exist in any country that recognized the power of government to compel persons accused of crime to be witnesses against themselves. And it is not too much to say that the wise men who laid the foundations of our constitutional government would have stood aghast at the suggestion that immunity from self-incrimination was not among the essential, fundamental principles of English law. * * *
“ Can there be any doubt that at the opening of the War of Independence the people of the colonies claimed as one of their birthrights the privilege of immunity from self-incrimination? This question can be answered in but one way. If at the beginning of the Bevolutionary War any lawyer had claimed that one accused of crime could lawfully be compelled to testify against himself, *571he would have been laughed at by his brethren of the bar, both in England and America. * * * By the Fifth Amendment, as already stated, it was expressly declared that no one should be compelled in a criminal case to be a witness against himself. Those Amendments being adopted by the Nation, the People no longer feared that the United States or any Federal agency could exert power that was inconsistent with the fundamental rights recognized in those Amendments. It is to be observed that the Amendments introduced no principle not already familiar to liberty-loving people. They only put in the form of constitutional sanction, as barriers against oppression, the principles which the people of the colonies, with entire unanimity, deemed vital to their safety and freedom.”
In Olmstead v. United States (277 U. S. 438) Mr. Justice Brandéis, in a dissenting opinion dealing with “wire tapping,” said: “The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to tfie pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of fife are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—-the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.”
In People ex rel. Taylor v. Forbes (143 N. Y. 219) Judge O’Brien said:
“ These constitutional and statutory provisions have long been regarded as safeguards of civil liberty, quite as sacred and important as the privileges of the writ of habeas corpus or any of the other fundamental guaranties for the protection of personal rights.
“ When a proper case arises they should be applied in a broad and liberal spirit in order to secure to the citizen that immunity from every species of self-accusation implied in the brief but comprehensive language in which they are expressed. * * * The principle established by these decisions is that no one shall be compelled in any judicial or other proceeding against himself, or upon the trial of issues between others, to disclose facts or circumstances that can be used against him as admissions tending to prove his guilt or connection with any criminal offense of which *572he may then or afterwards be charged, or the sources from which of the means by which evidence of its commission or of his connection with it may be obtained.”
True it is, there have been advocates of repeal and modification (see Problems Relating to Judicial Administration and Organization, prepared by and under the direction of the Subcommittee on Judicial Powers and Administration of the New York State Constitutional Convention Committee, vol. IX, chap. 12), but in the Nation the privilege has remained firmly fixed from 1791 (U. S. Const., Amdts., art. V), and in the State from 1821 up to 1939 (N. Y. State Const, art. 1, § 6), when it was modified by amendment to be later mentioned. To assist public agencies in endeavors to suppress crime is the moral duty of every citizen and, surely, the duty of the lawyer. Were it not for the constitutional provision there could be no doubt whatever that this respondent, on the assumed basis, would be guilty of conduct prejudicial to the administration of justice. But the State Constitution and the statutes have placed, and by virtue of them the courts must place, a seal of approval upon his assertion of the privilege, or at any rate should not condemn him.
The Constitution and the statute are written expressions of the conscience of the People. One who abides thereby may not in law be deemed a transgressor. The constitutional privilege is a fundamental right and a measure of duty; its exercise cannot be a breach of duty to the court. In law, morals and law are one; a legal act is a moral act. Invoking the privilege is a legal act, therefore, a moral act. In Cardozo “ The Paradoxes of Legal Science ” the following is quoted from the work of a distinguished Anglo-Russian jurist: “ A declaration of right is the admission by organized society that the claim is justified from the public point of view.” Since the exercise of the privilege is a moral as well as a legal act, it is a standard of conduct for a lawyer which must be respected by the courts. More than that the courts may not require. The law has given, and it is for the law, and not the courts, to take away.
Cardozo, Ch. J., after referring to the constitutional provision under discussion, said in Matter of Doyle (257 N. Y. 244):
“ The privilege may not be violated because in a particular case its restraints are inconvenient or because the supposed malefactor may be a subject of public execration or because the disclosure of his wrongdoing will promote the public weal.
“ It is a barrier interposed between the individual and the power of the government, a barrier interposed by the sovereign people of the State; and neither legislators nor judges are free to overleap it.”
*573It may be said that it is unthinkable that one who occupies such an important post in the affairs of men should be permitted to go unpunished for what may be deemed, in effect, a defiance of the power and an affront to the dignity of the court. That is based upon false assumption. Defiance and affront there cannot be when the act has the sanction of the fundamental law of the land.
Harsh criticism, severe condemnation, and loss of prestige may be the lot of an attorney who invokes the privilege, but that does not invite a visitation upon him of the disciplinary power of the court. The fault is with the law. In the law the remedy must be found. In the meantime, he who uses its shelter must go undisciplined. He has done no wrong. So it has been held, in effect, by the Appellate Division of the First Department in Matter of Cohen (115 App. Div. 900); by this court in Matter of Schneidkraut (231 id. 109) and Matter of Solovei (250 id. 117; affd., 276 N. Y. 647) and in Matter of Kaffenburgh (188 id. 49).
In considering the cases, it should be borne in mind that the investigation by this court was not a disbarment proceeding, and the discussion proceeds upon the basis that the privilege was asserted not to avoid disbarment, but incrimination which might result in a criminal charge.
In Matter of Kaffenburgh (supra) it appears that Kaffenburgh was a clerk in the office of certain lawyers, one of whom was being tried for conspiracy. He was called as a witness and asked several questions tending to elicit his connection with the matters pertaining to the conspiracy.. He refused to answer all of the questions as to his personal transactions on the ground that his answers might tend to incriminate him. It was charged in disciplinary proceedings that in refusing to testify he was intentionally deceiving the court or else bis connection with these matters was criminal. Reference was made by the court to the provisions of the Federal Constitution and the State Constitution above discussed, and also to section 10 of the Code of Criminal Procedure and section 837 of the Code of Civil Procedure (now section 355 of the Civil Practice Act above mentioned). The effect of self-accusation was considered from two standpoints: the involvement in a criminal accusation and the loss of the office of attorney and counselor at law. The court held that disbarment was a forfeiture within the meaning of section 355, Civil Practice Act. That view was later disaffirmed in Matter of Rouss (supra). But as to the possibility of being accused of a crime as the result of testifying, the court quoted from People ex rel. Taylor v. Forbes (supra): “ The principle established by these decisions is that no one shall be compelled in any judicial or other proceeding against *574himself, or upon the trial of issues between others, to disclose facts or circumstances that can be used against him as admissions tending to prove his guilt or connection with any criminal offense of which he may then or afterwards be charged, or the sources from which or the means by which evidence of its commission or of his connection with it may be obtained.”
So it may be fairly said that even if the court had held that disbarment was not a forfeiture, it would have decided that the charges were not sustained because the attorney was protected by the constitutional limitation.
In referring to the Kaffenburgh case Cardozo, J., said in Matter of Rouss (supra): “ Much that was said was in reality unnecessary to the decision. There was no occasion to determine whether Kaffenburgh’s refusal to testify was proper because it tended to expose him to a forfeiture of office. He had placed his refusal on the ground of a tendency to criminate him, o/nd that of itself was sufficient to sustain him.”
“ Sufficient to sustain ” surely means sufficient to sustain him whenever he may be called upon to answer for his refusal.
In People ex rel. Karlin v. Culkin (248 N. Y. 465) Cabdozo, Ch. J., was discussing the duty of an attorney to give testimony in an investigation such as the one conducted by this court. ' The attorney refused to testify upon the ground that the court had no jurisdiction. In the opinion it was stated: “We are now asked to hold that when evil practices are rife to the dishonor of the profession, he may not be compelled by rule or order of the court, whose officer he is, to say what he knows of them, subject to his claim of privilege if the answer will expose him to punishment for crime.”
The limitation should be carefully noted: “ subject to his claim of privilege if the answer will expose him to punishment for crime.” By that was meant that the lawyer was not subject to punishment for contempt if he asserted his constitutional privilege; that when he refused bo answer on that ground he had not offended the dignity or the power of .the court. Surely the distinguished jurist could not have intended to have decreed, amnesty in the written word, with a mental reservation that one may claim the privilege as a matter of right and yet have done a wrong which subjected him to discipline.
Matter of Vaughan (189 Cal. 491; 209 P. 353) is to the same effect.
The cases mentioned hold, and the words of the former Chief Judge mean, in effect, that a lawyer commits no wrong in asserting the privilege before a grand jury or a court trying a criminal cause. There the claim was made before the sovereign power of the State. If it was not a wrong there, it can be no more a wrong here. If, *575in each instance, invoking the privilege results in a failure to make disclosure for the benefit of law and order, the justification therefor is found in the fundamental law, which was adopted for the common weal.
Section 6 of article 1 of the Constitution of the State of New York was amended, effective January 1, 1939, by adding to the words already discussed: “ * * * any public officer who, upon being called before a grand jury to testify concerning the conduct of his office or the performance of Ms official duties, refuses to sign a waiver of immunity against subsequent criminal prosecution, or to answer any relevant question concerning such matters before such grand jury, shall be removed from office .by the appropriate authority or shall forfeit Ms office at the suit of theAttorney-General.”
It should be noted that the failure to sign a waiver of immunity applies only to testimony of a public officer before a grand jury and concerning the conduct of his office or the performance of nffMia.1 duties. It does not refer to a public officer called to testify before a grand jury concernmg the acts of any other persons; it does not apply M any wise to legislative investigations or to those directed by the Governor or the courts. It is narrow m its scope and limited m its application, and, therefore, may not be deemed the expression of a general change of policy of the people of the State as to the limits of the provision as it stood before amendment. The amendment must be confined to the end sought to be attamed by it. However, assuming it were broad enough to apply to a lawyer, it may not be used agamst tMs respondent, since it was not enacted until after Ms appearance before the Special Term. It will require a further amendment to the Constitution before the lawyer may lose the benefit of tMs time-honored privilege.
The motion to confirm the report of the official referee should be denied and the charges dismissed.
Taylor, J., concurs with Lazansky, P. J.
Respondent suspended from the practice of the law for a period of six months.