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In re Daley

decided: February 11, 1977.


Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 71-GJ-3567 - James B. Parsons, Judge.

Pell and Sprecher, Circuit Judges, and Dillin, District Judge.*fn* Pell, Circuit Judge.

Author: Sprecher

SPRECHER, Circuit Judge.

This case requires resolution of an issue related to the "difficult question" not reached by this court in United States v. Braasch, 505 F.2d 139 (7th Cir. 1974), cert. denied, 421 U.S. 910, 95 S. Ct. 1561, 95 S. Ct. 1562, 43 L. Ed. 2d 775 (1975): whether a federal prosecutor can prohibit the use of a witness' compelled testimony in subsequent state bar disciplinary proceedings involving that witness, through a broad grant of immunity. For reasons set forth below, we hold the conferral of such broad immunity to be beyond Fifth Amendment imperatives and beyond the authority of the federal prosecutor.


In May 1974, the appellee, John M. Daley, who is an attorney licensed to practice law in the State of Illinois, was served with a subpoena which required his appearance and testimony before a Special Grand Jury. Upon being apprised of the substance of this investigation, Daley, after consultation with his attorney, advised the United States Attorney of his intention to assert his Fifth Amendment privilege against self-incrimination if called to testify. The United States Attorney thereupon secured the authorization of the Assistant Attorney General to submit to the district court a request for an order immunizing Daley against the use of his compelled testimony under the provisions of 18 U.S.C. § 6002.*fn1 In addition to the statutory protections against subsequent use of compelled testimony, however, the application purported to specifically immunize Daley against any use of this testimony in state bar disciplinary proceedings. The United States Attorney offered his opinion that this broad immunity grant was warranted on the ground that "the United States Attorney's Office was concerned because of prior incidents that efforts might be made to pressure the witness Daley by threats of administrative action into not testifying or to testifying falsely. The United States Attorney's Office believed that to insure the integrity of the testimony it was necessary to include such a provision."

Daley was apparently assured by his own attorney, as well as by the United States Attorney, of the validity of this unusual immunity grant, the United States Attorney offering his own judgment that, in any event, the statutory immunity authorization, 18 U.S.C. § 6002, interdicted subsequent use of such compelled testimony in bar disciplinary proceedings.

On July 18, 1974, Chief Judge Robson, upon being informed of these occurrences, entered an immunity order*fn2 which provided in pertinent part:

IT IS FURTHER ORDERED that no testimony of the witness, John Daley, compelled under this order (or any information directly or indirectly derived from such testimony or other information) may be used against him in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with this order, in accordance with the provisions of Section 6002, Title 18, United States Code.

IT IS FURTHER ORDERED that no testimony of the witness, John Daley, compelled under this order as above, may be used in any administrative proceeding, disciplinary committee, any bar association or state Supreme Court, in conjunction with any professional disciplinary proceeding or disbarment.

Daley testified, in compliance with the immunity order, before the Grand Jury and at the subsequent federal extortion trial of Cook County Commissioner Charles S. Bonk regarding his professional transactions with this public official.*fn3 Specifically, Daley related that he had transferred to Bonk thousands of dollars in bribes in order to assure the granting of zoning variances favorable to Daley's developer-clients.

Thereafter, the appellant, the Illinois Attorney Registration and Disciplinary Commission, instituted an inquiry to determine whether Daley's testimony indicated that professional disciplinary action was warranted. Acting on behalf of the Commission, an Inquiry Board denied Daley's motion to exclude the compelled testimony, while acknowledging that the testimony contained in the transcript of the Bonk trial constituted the premise upon which the inquiry into Daley's professional conduct was based.

Appellee next filed a motion in the district court to compel the Commission to comply with the provisions of the immunity order which disallowed any use of Daley's trial testimony in state bar disciplinary proceedings. Chief Judge Parsons ruled on May 28, 1976 that the prohibitions of the immunity order were valid and properly encompassed use by the Commission in its inquiry into Daley's fitness to continue in the practice of law. An order restraining appellant from all direct or indirect use of Daley's testimony was issued. The Commission appeals this decision.


We first address the contention that the grant of immunity authorized by the pertinent federal statute, 18 U.S.C. §§ 6001-03, operates to proscribe the use of compelled testimony in subsequent state bar disciplinary proceedings on constitutional grounds. Because the conferral of immunity upon a witness in order to secure his testimony before a court or grand jury effectively abrogates the witness' right to invoke his Fifth Amendment privilege against incriminating himself, a statute authorizing immunity is constitutional only if it affords protection commensurate with that inherent in the Fifth Amendment. Counselman v. Hitchcock, 142 U.S. 547, 35 L. Ed. 1110, 12 S. Ct. 195 (1892); Murphy v. Waterfront Commission, 378 U.S. 52, 12 L. Ed. 2d 678, 84 S. Ct. 1594 (1964); Kastigar v. United States, 406 U.S. 441, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972). However, the immunity afforded by statute need not be "harmfully and wastefully broader" than the constitutional privilege. Murphy, supra, at 107 (White, J., concurring). The statute, deliberately phrased in the language of the Fifth Amendment,*fn4 immunizes the witness against use of his compelled testimony "in any criminal case," rather than against all potential opprobrium, penalties or disabilities which occur as a consequence of the compelled disclosures. Brown v. Walker, 161 U.S. 591, 40 L. Ed. 819, 16 S. Ct. 644 (1896); Ullmann v. United States, 350 U.S. 422, 76 S. Ct. 497, 100 L. Ed. 511 (1956). Cf. Gardner v. Broderick, 392 U.S. 273, 20 L. Ed. 2d 1082, 88 S. Ct. 1913 (1968). Thus, the salient constitutional inquiry involved here is whether a state bar disciplinary proceeding is a "criminal case" within the purview of the Fifth Amendment.

Denomination of a particular proceeding as either "civil" or "criminal" is not a talismanic exercise, but rather attaches "labels of convenience," In re Gault, 387 U.S. 1, 50, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967), and tends to inhibit factual inquiry into the nature of the proceeding itself. The Supreme Court has determined that the "sole concern [of the self-incrimination clause] is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of 'penalties affixed to criminal acts. . . .'" Ullmann, supra, at 438-39, quoting Boyd v. United States, 116 U.S. 616, 634, 29 L. Ed. 746, 6 S. Ct. 524 (1886); accord, Kastigar, supra, at 453. In other words, the privilege against self-incrimination functions as a safeguard against rendering an individual criminally liable or subjecting him to prosecution for commission of a crime through the use of testimony coerced from him. Therefore, a "criminal case," for purposes of the invocation of the Fifth Amendment privilege, is one which may result in sanctions being imposed upon a person as a result of his conduct being adjudged violative of the criminal law.

The essence of state bar disciplinary proceedings, however, is not a resolution regarding the alleged criminality of a person's acts, but rather a determination of the moral fitness of an attorney to continue in the practice of law. Although conduct which could form the basis for a criminal prosecution might also underlie the institution of disciplinary proceedings, the focus is upon gauging an individual's character and fitness, and not upon adjudging the criminality of his prior acts or inflicting punishment for them. As previously stated by this court:

Disbarment and suspension proceedings are neither civil nor criminal in nature but are special proceedings, sui generis, and result from the inherent power of courts over their officers. Such proceedings are not lawsuits between parties litigant but rather are in the nature of an inquest or inquiry as to the conduct of the respondent. They are not for the purpose of punishment, but rather seek to determine the fitness of an officer of the court to continue in that capacity and to protect the courts and the public from the official ministration of persons unfit to practice. Thus the real question at issue in a disbarment proceeding is the public interest and an attorney's right to continue to practice a profession imbued with public trust.

In re Echeles, 430 F.2d 347, 349-50 (7th Cir. 1970) (citations omitted, emphasis added). See also Ex parte Wall, 107 U.S. 265, 288, 27 L. Ed. 552, 2 S. Ct. 569 (1882).

Thus, a clear distinction exists between proceedings whose essence is penal, intended to redress criminal wrongs by imposing sentences of imprisonment, other types of detention or commitment, or fines, and proceedings whose purpose is remedial, intended to protect the integrity of the courts and to safeguard the interests of the public by assuring the continued fitness of attorneys licensed by the jurisdiction to practice law. The former type of proceeding is, in actuality, "criminal" in nature and therefore within the ambit of the Fifth Amendment safeguards against self-incrimination; the latter is not.

Emphasis upon the penal or remedial aspects of a proceeding, rather than upon its label, for purposes of determining whether the Fifth Amendment prohibits the use of compelled, incriminatory testimony during the course of the proceeding erodes the basis for appellee's reliance upon cases like Boyd, supra, and United States v. United States Coin and Currency, 401 U.S. 715, 28 L. Ed. 2d 434, 91 S. Ct. 1041 (1971). In Boyd, the relevant customs act allowed the government to institute a civil forfeiture proceeding for the imported property involved, in addition to seeking imprisonment or a fine for violation of the law. The prosecutor waived the indictment, commenced a forfeiture action and then sought to compel disclosures of the accused's books and records on the basis that the forfeiture proceeding involved a clearly civil remedy. The Court held that a case in which the question was whether the revenue laws had been violated is criminal for purposes of invoking the Fifth Amendment privilege; the type of paper filed by the prosecutor did not serve to alter the essence of the proceedings. Accord, Lees v. United States, 150 U.S. 476, 37 L. Ed. 1150, 14 S. Ct. 163 (1893).

Similarly, in United States Coin and Currency, supra, the government instituted forfeiture proceedings for money in the possession of an individual arrested for failure to file and pay gambling taxes pursuant to 26 U.S.C. § 4411. In affirming that the privilege against self-incrimination may be invoked in this nominally civil forfeiture proceeding, the Court declared that the forfeiture of the money to ...

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