(dissenting). The petitioner is not a lawyer, but it would appear that he is suspect of a charge of unlawfully practicing law in violation of section 90 and subdivision B of section 750 of the Judiciary Law of the State of New York.
That the court has the power to issue the subpoena is academic and requires no comment.
However, in the present case the petitioner in his contentions as to the violation of his constitutional rights raises the more fundamental issue as to whether or not this was a proper case for the exercise of the subpoena power. Whatever presumption of regularity might be otherwise indulged in is inapplicable in the present proceeding.
It is to be firstly noted that the present subpoena would appear to have been improperly issued by the Clerk of the court since the application failed to disclose that the applicant had any reason to believe the petitioner was practicing or assuming to practice law. I am aware that the unverified application of the respondent states that it ‘‘ has cause to believe ’ ’, but the rule pursuant to which this subpoena was issued would appear to require an application “ disclosing * * * reason to believe ” that specified unlawful conduct is being pursued. The application for the subpoena discloses nothing beyond a desire to investigate as did the respondent’s affidavit on the motion.
In Matter of Dawn Operators v. Lyon (283 App. Div. 358, 359, mot. for lv. to app. den. 306 N. Y. 977, app. dsmd. 307 N. Y. 673) the First Department in a unanimous opinion by Mr. Justice Bergaet stated (p. 359): “ The subpoena power does not operate in a vacuum but always in the context of a relevancy to the effective pertinent duty of the officer or body authorized to subpoena and examine witnesses.” Presently the application for the subpoena was not verified, did not set forth facts, nor did it set out the source of respondent’s belief that the appellant was unlawfully practicing law. In short, there was no proof that the appellant was doing anything wrong. The affidavit in opposition to the motion to quash, as distinguished from the one in Dawn, gave no facts, set forth no source of information or in any respect gave a basis for the relief requested by the respondent.
In Matter of Anonymous v. Arkwright (5 A D 2d 792) there was an investigation ordered by the court and the analogy of *57that situation to the present situation by the majority is misleading. In Matter of Association of Bar of City of N. Y. (222 App. Div. 580) the First Department considered a petition for an inquiry into ‘‘ ambulance chasing” and after deciding that it had such power, ordered an investigation as a result of the facts alleged in the petition. In the present case it is not clear that the subpoena was issued in connection with a general investigation of those persons involved in the creating of employment benefit programs and in any event, it was not issued pursuant to any directive of the First Department to investigate such plans or planners.
In my opinion, a motion to quash a subpoena in civil matters necessitates a disclosure by the issuing authority that there is some rational connection between the person or material sought and the duty being carried out by such procedure. (See Matter of Dawn Operators v. Lyon, supra; [cf. subpoena there questioned with the present subpoena] Matter of Sun-Ray Cloak Co., 256 App. Div. 620, 625.) The motion to quash was denied in Dawn because the court found that the affidavit of the Superintendent of Banks contained specific allegations of alleged transactions involving Dawn. A sufficient showing might be very slight in terms of evidentiary matters, but the present record contains nothing to create even a suspicion that the petitioner has been engaged in dispensing legal advice. The affidavit submitted on behalf of the respondent in this proceeding is an indulgence in generalities rather than specifics and makes the presumptuous statement that by definition, services rendered in regard to — “ pension plan, profit sharing plan, stock plan and other employee benefit programs ”— involve the “ rendition of legal advice and the performance of legal services.” Upon appellant’s request for advice as to whether the investigation was directed against him personally or was an “ in-depth study ” of such plan, the committee refused to state its objective. It would seem that appellant was entitled to know whether he was to become a target of an investigation, the result of which, if found guilty, would subject him to a misdemeanor charge (former Penal Law, §§ 270, 272; now Judiciary Law, §§ 478, 485). The recital of mere suspicion followed by a declaration of purpose to investigate the correctness of such suspicion indicates a voyage of discovery that the law does not tolerate. (See People ex rel. Livingston v. Wyatt, 186 N. Y. 383, 391, 393 [1906]; also Boyd v. United States, 116 U. S. 616.)
Matter of Dawn Operators v. Lyon (supra) suggests that something more than a showing of naked power and jurisdiction *58is necessary for a “ proper case”. The requirement by the First Department’s own rule that the application for a subpoena disclose reasons to believe that the prohibited conduct is being pursued, indicates that a subpoena was not to be issued except upon a factual showing of unlawful practice against the person subpoenaed, but, under any circumstances, when a subpoena is challenged, the supporting affidavits must set forth relevant facts. Special Term seems to have assumed such facts.
The courts are the protectors of the rights and privileges of individuals such as A’Hearn and there is a valid distinction between his rights and those of a corporation. In Oklahoma Press Pub. Co. v. Walling (327 U. S. 186), the court established a flexible standard of probable cause to satisfy the requirements of the Fourth Amendment applicable when a subpoena duces tecum issued. The court said (p. 208): ‘ ‘ Without attempt to summarize or accurately distinguish all of the cases, the fair distillation, in so far as they apply merely to the production of corporate records and papers in response to a subpoena or order authorized by law and safeguarded by judicial sanction, seems to be that the Fifth Amendment affords no protection, by virtue of the self-incrimination provision, whether for the corporation or for its officers; and the Fourth, if applicable, at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be ‘ particularly described,’ if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant. The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable.” It is important to note that the court’s decision was limited to obtaining corporate records (see Oklahoma Press Pub. Co. v. Walling, supra, pp. 204A208). Subsequent decisions of the court have indicated that the flexible standard of reasonableness announced in Oklahoma Press Pub. Co. was limited to the issuance of subpoenas for corporate records (cf. United States v. Morton Salt Co., 338 U. S. 632, 651-652; United States v. Bausch & Lomb Co., 321 U. S. 707, 727). Thus the majority’s reliance on United States v. Powell (379 U. S. 48), a corporate records case, is misplaced. Moreover, in Powell the Government sought to obtain what would appear to be “ required records ”, that is, records that a taxpayer is obliged to keep and which therefore the Government has the right to inspect (cf. Shapiro v. United States, 335 U. S. 1, 17-19, 33-34), which is an additional reason for distinguishing Powell from the present case. The validity of the distinction between corporate and individual business records as a general proposition is not weakened by the case of *59Ryan v. United States (379 U. S. 61). Ryan—a proceeding for judicial enforcement of an Internal Revenue Service administrative summons — like Powell, was a “required records” case and therefore its holding does not invalidate or dilute the distinction between corporate and individual records which are not “required records” and Ryan, then, like Powell has no application to the case at bar.
What has been stated herein should in no way be construed as necessarily applicable to attorneys and counselors at law duly admitted to practice before the courts of this State and thereby becoming officers of said courts.
Under the circumstances of this case, there being a failure to show any cause, “probable or otherwise ’ ’, for the attendance of the petitioner or for the production of his records, the motion to quash should have been granted, without prejudice to the issuance of another subpoena duces tecum upon another application showing additional facts which establish that the case is a proper one for the exercise of the Clerk’s power as delegated by the First Department.
Reynolds, Staley, Jr., and Gabrielli, JJ., concur with Gibson, P. J.; Herlihy, J., dissents and votes to reverse, in an opinion.
Order affirmed, without costs.