In Re March

MR. JUSTICE CLARK,

dissenting:

There can be no doubt that the Administrator has produced substantial evidence of serious misconduct by the respondent. However, my review of the record in this case also leaves me with no doubt that the rights of the respondent have been so thoroughly abused in these proceedings that the outcome ought not stand unchallenged. “[T] he imperative of judicial integrity” (Elkins v. United States (1960), 364 U.S. 206, 222, 4 L. Ed. 2d 1669, 1680, 80 S. Ct. 1437, 1447) mandates that we examine with the strictest scrutiny the conduct of those attorneys to whom we have entrusted the day-to-day operations of our disciplinary system. Here again, as in In re Madsen (1977), 68 Ill. 2d 472, 489-90 (Dooley & Clark, JJ., dissenting), I find that conduct wanting in several respects.

At the outset, it may be useful to comment generally upon what I perceive to be a disturbing trend in the operation of our disciplinary system. An unusually high number of the disciplinary cases which reach this court apparently involve sole practitioners and individuals with smaller, less prominent practices. I am not persuaded that professional misconduct is similarly concentrated among such attorneys. Rather, I fear that these attorneys are simply more convenient targets of disciplinary proceedings, because they are often forced by economic necessity to proceed pro se, as was the respondent in the instant case. The generally lower fees and contingent-fee arrangements provided by the sole practitioners and attorneys in smaller, less prominent law firms are the only means by which the vast majority of people can afford the legal representation to which the profession proclaims the public is entitled. See ABA Code of Professional Responsibility, Canon 2 (1976); Illinois Code of Professional Responsibility, Canon 2 (1977).

While this observation is not intended to imply that such attorneys are entitled to be judged by a lower than normal standard, neither should they be the sole focus of our disciplinary system.

The proceedings in the instant case demonstrate how easy it is for the Administrator to take undue advantage of the imbalance of forces between the Administrator and the respondent (see In re Madsen (1977), 68 Ill. 2d 472, 490 (Dooley & Clark, JJ., dissenting)), particularly where, as here, the respondent is an older attorney, in poor health, and forced to proceed pro se.

On August 7, 1975, in connection with counts IV through VII of his complaint, the Administrator demanded that the respondent admit the truth of certain facts and the genuineness of certain documents pursuant to Supreme Court Rule 216 (58 Ill. 2d R. 216). The respondent served timely notice of his objection to that request upon the Administrator. (See 58 Ill. 2d R. 216(c). See also 65 Ill. 2d R. 753(c) (practice before the Hearing Board governed by the practice in civil cases, as modified by rule).) That the objections also were styled in the form of a “motion to quash” is irrelevant, since they gave the Administrator more than adequate notice of their content and purpose, as well as a meaningful opportunity to respond thereto. (Cf. Parrino v. Landon (1956), 8 Ill. 2d 468, 470 (adequacy of pleadings), 58 Ill. 2d R. 2(a); Ill. Rev. Stat. 1975, ch. 110, par. 4 (construction of rules).) The proper procedure thus would have been for the Administrator to have requested the Hearing Board to hold a hearing to determine the propriety of the objection. Instead, the Administrator led the' Hearing Board to conclude that the respondent should be deemed to have admitted the matters in question. This was in itself an inaccurate statement of the law on the part of the Administrator and grounds for reversal of the decision of the Hearing Board.

The Hearing Board also apparently considered that the respondent’s objections to the Administrator’s request were, on the merits, insubstantial. This too was error. The respondent claimed that responding to the Administrator’s request for admissions might tend to incriminate him, and therefore his privilege against self-incrimination permitted him to refuse to respond to that request. In my opinion, the respondent’s position is clearly supported by the decision of the United States Supreme Court in Spevack v. Klein (1967), 385 U.S. 511, 17 L. Ed. 2d 574, 87 S. Ct. 625. In Spevack, the court unequivocally held that a respondent in an attorney disciplinary proceeding may refuse to answer questions on the grounds that his answers may subject him to possible criminal liability. Although that decision has been subject to much criticism (see, e.g., Underwood, The Fifth Amendment and the Lawyer, 62 Nw. U.L. Rev. 129 (1967)), it is nonetheless the supreme law of the land and is therefore binding upon this court. Martin v. Hunter's Lessee (1816), 14 U.S. (1 Wheat.) 304, 4 L. Ed. 97.

Like “[a] nod or a head-shake,” a request for the admission of facts and genuineness of documents “is as much a ‘testimonial’ or ‘communicative’ act in this sense as are spoken words” and therefore may not be compelled. See Schmerber v. California (1966), 384 U.S. 757, 762 n.5, 16 L. Ed. 2d 908, 914 n.5, 86 S. Ct. 1826, 1830 n.5.

Only if the respondent were immunized against both the direct use as well as the derivative use of his testimony could he be compelled to testify. (See, e.g., Lefkowitz v. Turley (1973), 414 U.S. 70, 38 L. Ed. 2d 274, 94 S. Ct. 316; Kastigar v. United States (1972), 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653.) Derivative use would include information obtained as a result of the respondent’s answers to a request for the admission of facts and genuineness of documents. Rule 216(e) contains no such prohibition against derivative use (and the hearing panel had no power to confer the necessary immunity), but subsection (c)(2) of Rule 216 expressly provides for objections based upon “privilege.” “Accordingly objections based on the self-incrimination privilege are available.” (8 C. Wright & A. Miller, Fed. Prac. & Proc. sec. 2262, at 735 (1970). Accord, Gordon v. FDIC (D.C. Cir. 1970), 427 F. 2d 578, 581.) While the foregoing authorities deal with the Federal rule on which our Rule 216 is based (see Ill. Ann. Stat., ch. 110A, par 216, Historical & Practice Notes (Smith-Hurd 1968)), the outcome is identical under the Illinois rule. See Keegan, Privileged Matters and Protective Orders, 1959 U. Ill. L.F. 801, 802 (privilege against self-incrimination available as an objection to a request for admissions under predecessor of Rule 216).

That the subjects of the request primarily were documents whose authenticity might otherwise have been proved did not take the request outside the scope of the privilege. A respondent may not be forced to give testimonial evidence which may provide any of the “links” in the chain leading to criminal prosecution. See, e.g., Hoffa v. United States (1966), 385 U.S. 293, 17 L. Ed. 2d 374, 87 S. Ct. 408.

The majority glosses over this problem by citing authority for the true but irrelevant proposition that attorney disciplinary proceedings are “remedial” rather than criminal in nature. (See In re Daley (7th Cir. 1977), 549 F.2d 469, cert. denied (1977), 434 U.S. 829, 54 L. Ed. 2d 89, 98 S. Ct. 110.) The issue in this case, however, is not whether the defendant has been forced to “incriminate” himself in these proceedings but, rather, whether the respondent has been unconstitutionally penalized, by these proceedings, for his perfectly legitimate refusal to provide evidence which might incriminate him in other proceedings. (Spevack v. Klein; Lefkowitz v. Turley (1973), 414 U.S. 70, 38 L. Ed. 2d 274, 94 S. Ct. 316; see also United States v. Kordel (1970), 397 U.S. 1, 25 L. Ed. 2d 1, 90 S. Ct. 763.) The majority, in effect, concedes that respondent was thus unconstitutionally penalized and that the proper procedure would have been to grant the respondent use and derivative use immunity. However, the majority apparently assumes that this was “harmless error” in light of the additional evidence adduced with regard to these counts. I do not agree. The nature of the transactions at issue here was hotly disputed, and it defies credulity to suggest that the Hearing Board (which expressly stated that it would take the matters deemed admitted into consideration) did not consider these improperly admitted matters in evaluating respondent’s conduct and credibility. Although neither this court nor the Review Board was bound by the findings of the Hearing Board, neither tribunal provided a de novo review of the Hearing Board’s proceedings adequate to purge the taint therein. Accordingly, by imposing a sanction based in part upon the counts which were the subject of the Administrator’s request for admissions, this court has unconstitutionally penalized the respondent for his assertion of privilege in response to that request. Spevack v. Klein. See also In re Holland (1941), 377 Ill. 346 (no sanction for good faith assertion of privilege).

The abuse of the respondent’s rights did not end with the improper admission of the aforementioned matters. At the conclusion of the Administrator’s case the chairman of the hearing panel made the following statement to respondent:

“If you propose to become a witness as to any of these complaints you will have waived your privilege as to those complaints, and I look somewhat askant at you now taking that position after having claimed the privilege when Mr. O ’Malley wanted to put it in his case, because his case might have been totally different.” (Emphasis added.)

Forcing a respondent to choose between testifying before he has heard all of the other evidence and not testifying at all violates his privilege against self-incrimination. (Brooks v. Tennessee (1972), 406 U.S. 605, 610, 32 L. Ed. 2d 358, 362, 92 S. Ct. 1891, 1898.) In Brooks, the Supreme Court struck down a statute requiring a defendant to choose between testifying at the beginning of his own case and not testifying at all. The court explained:

“Pressuring the defendant to take the stand, by foreclosing later testimony if he refuses, is not a constitutionally permissible means of insuring his honesty. It fails to take into account the very real and legitimate concerns that might motivate a defendant to exercise his right of silence. And it may compel even a wholly truthful defendant, who might otherwise decline to testify for legitimate reasons, to subject himself to impeachment and cross-examination at a time when the strength of his other evidence is not yet clear. For these reasons we hold that [the statute] violates an accused’s constitutional right to remain silent insofar as it requires him to testify first for the defense or not at all.” 406 U.S. 605, 611-12, 32 L. Ed. 2d 358, 363, 92 S. Ct. 1891, 1895.

The facts of this case reveal an even more serious violation, in that the Hearing Board would have had the respondent testify even earlier than was required by the statute found unconstitutional in Brooks.

Given the Hearing Board’s power to recommend sanctions which would gravely impact and perhaps terminate the respondent’s professional career, the chairman’s above-quoted statement cannot be assumed to have been taken lightly by the respondent, and therefore ought not be overlooked by this court. That statement only can be interpreted to mean that the respondent would be penalized for his assertion of privilege by being forced to choose between not testifying, and having the chairman “look askant” at him, i.e., “with disapproval or distrust: suspiciously” (Webster’s Third New International Dictionary 128 (1971) (definition of askance)).

The impact of this error was far more serious than a minor, technical one from which no prejudice results. (Cf. In re Damisch (1967), 38 Ill. 2d 195.) The evidence against the respondent (other than the improperly admitted documents) consisted primarily of the testimony of individuals as to their conversations and transactions with the respondent. Respondent’s testimony might have shed an entirely different light upon those conversations and transactions, demonstrating a different degree of, or perhaps even the complete absence of, misconduct on his part. Thus, the chairman’s statement rendered the respondent’s assertion of privilege impermissibly “costly” (Spevack v. Klein; cf. In re Holland (1941), 377 Ill. 346 (no sanction for good faith assertion of privilege)), and it is inappropriate for us to rely upon this record to impose a sanction with regard to the remaining part of count III, as well as with regard to counts IV through VII.

Respondent’s own statements before us, and in documents filed in this court, form an adequate basis for the imposition of a sanction with regard to count IX, however. The respondent wilfully failed to comply with a subpoena issued by the clerk of this court. That wilful failure was based solely on the respondent’s'own opinion that it was not necessary for him to comply, and is therefore inexcusable. While the respondent may have had a colorable argument with regard to the applicability of the privilege against self-incrimination to the documents subpoenaed, as an experienced attorney he knew that the proper means of asserting that privilege was through a timely motion to quash the subpoena. Respondent did not move to quash the subpoena until four months after he was served with it (and over three months after it was returnable). His assertion of privilege in response to ..the subpoena therefore was outrageously untimely, and his brief periods of illness during this delay cannot fully excuse this misconduct. Thus, only with regard to this count do I agree a sanction may be imposed.

While I recognize that reasonable people may differ with regard to whether I or my colleagues have correctly determined whether the violations of respondent’s rights were harmless, I do not see any room for disagreement as to the existence of such violations. Therefore I respectfully dissent from my brothers’ disposition of this case.