(dissenting). Despite all disclaimers to the contrary, respondent is being disbarred for pleading his privilege against self incrimination. The Court of Appeals of this State is committed to the view that this cannot be done and in Matter of Grae (282 N. Y. 428, 434-435) stated: “ The privilege against self-incrimination is a constitutional guaranty of a fundamental personal right. Long regarded as a safeguard of civil liberty it was firmly imbedded in the law of England and by the Fifth Amendment to the Federal Constitution became a basic principle of American constitutional law. ‘ It is a barrier interposed between the individual and the power of the govern*450ment, a barrier interposed by the sovereign people of the State; and neither legislators nor judges are free to overleap it.’ (Matter of Doyle, 257 N. Y. 244, 250.) • Applying this basic principle to our present problem we have no doubt that when the appellant, as a witness upon the inquiry at the Special Term, declined to sign a waiver of immunity and thus refused to relinquish in advance a privilege which the Constitution guarantees to him, he was within his legal right. As was said by Presiding Justice Lazansky in Matter of Ellis (253 App. Div. 558, 572), expressing the minority view at the Appellate Division: ‘ The constitutional privilege is a fundamental right and a measure of duty; its exercise cannot be a breach of duty to the court.’ ”
In Matter of Kaffenburgh (188 N. Y. 49, 53) the Court of Appeals quoted with approval the following language from People ex rel. Taylor v. Forbes (143 N. Y. 219, 228): “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 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. ’ ’
If the respondent is guilty of any violation of the laws, rules or regulations appertaining to the conduct of attorneys, and this is proved in an adversary proceeding against him after he has had the right to confront his accusers, cross-examine witnesses, call witnesses on his own behalf, and the benefit of all of the other safeguards of due process, then he may be disciplined as the court deems proper. Absent such proceeding, the respondent has been denied his rights under the Constitutions of this State and of the United States.
The proceeding should be dismissed.
Wenzel and Ughetia, JJ., concur with Beldock, J.; Nolan, P. J., concurs in separate opinion, in result; Kleineeld, J., dissents and votes to dismiss the proceeding, in opinion.
Despondent disbarred and his name ordered to be struck from the roll of attorneys, with leave to apply to vacate the order to be entered hereon upon proof that, within 30 days after the entry thereof, he has answered before the Justice presiding at the judicial inquiry all relevant questions and has produced before such Justice all relevant records in accordance with the subpoena duces tecum?