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In Re Zisook



Disciplinary proceeding.


Rehearing denied January 29, 1982.

These disciplinary cases concern the scope of an attorney's fifth amendment privilege against incriminating himself during proceedings before the Attorney Registration and Disciplinary Commission. The attorneys, Sheldon Oliver Zisook, Jeffrey A. Brody and Basil Chris Elias (respondents), received subpoenas to testify concerning certain matters issued at the request of the Attorney Registration and Disciplinary Commission (Commission). The subpoenas duces tecum received by Zisook and Elias also requested the production of certain documents. Each respondent, through his attorney, informed the Commission that he believed such testimony or the production of materials to be self-incriminating and thus failed to appear before the Commission at the time appointed. The Commission filed a report with this court pursuant to our Rule 754 (73 Ill.2d R. 754). We issued a rule to show cause why the attorneys should not be suspended from the practice of law for failing to comply with the subpoenas. Each respondent answered the rule to show cause, and the cases were consolidated, briefed and orally argued before this court.

A Federal grand jury became interested in the respondents following references to them in a newspaper-television investigative article entitled "The Accident Swindlers." The grand jury was investigating possible violations of certain Federal criminal statutes.

Respondent Sheldon Zisook is an attorney licensed to practice law in Illinois. On June 17, 1970, he formed a professional corporation, Sheldon Oliver Zisook Professional Corporation. The Commission commenced an investigation of Zisook in late 1979. A subpoena duces tecum was issued commanding the respondent to appear before the administrator of the Commission and to produce all files and documents in his possession relating to his representation of certain named clients. The subpoena also commanded Zisook to appear and give evidence.

Following the issuance of the first subpoena, the respondent sought and obtained a continuance. During that time the respondent received a subpoena issued by the United States District Court for the Northern District of Illinois. That subpoena commanded respondent to appear before a special grand jury of that court and to produce substantially all his records and files for the preceding four years. The documents sought by the grand jury included those already requested by the Commission.

The second respondent, Jeffrey A. Brody, is an attorney employed by Sheldon Oliver Zisook Professional Corporation. Like Zisook, he was mentioned in the television series "The Accident Swindlers" and received a subpoena duces tecum issued by the United States District Court for the Northern District of Illinois.

Some time later the Commission also began an investigation of Brody. It issued a subpoena requiring the respondent to appear before the Commission to give testimony. The subpoena did not require the production of documents. Brody failed to appear as commanded, claiming, as Zisook had, that to comply would result in the respondent's incriminating himself.

The third respondent, Basil Chris Elias, is an attorney apparently engaging in the practice of law as a sole practitioner. Like the other respondents, he was subpoenaed to appear before the Federal grand jury as the result of allegations against him in the aforementioned television series. Also, like Zisook, this respondent's subpoena duces tecum commanded him to appear before the Commission to testify and also to produce certain documents relating to his practice. He refused to do so, claiming it would be a violation of his privilege against self-incrimination.

We first consider the scope of and procedure for claiming the fifth amendment privilege as it relates to subpoenas requesting appearances in disciplinary proceedings. We conclude, as to the respondents, that while they possess the privilege against self-incrimination, refusing to appear in response to a subpoena is an inappropriate way to claim it.

The United States Constitution provides:

"No person shall be * * * compelled in any criminal case to be a witness against himself * * *." (U.S. Const., amend. V.)

This privilege has also been incorporated in the Illinois Constitution. (See Ill. Const. 1970, art. I, § 10.) The privilege essentially means that no person, without proper immunity, can be required to implicate himself in a crime. Malloy v. Hogan (1964), 378 U.S. 1, 12 L.Ed.2d 653, 84 S.Ct. 1489; Murphy v. Waterfront Com. (1964), 378 U.S. 52, 12 L.Ed.2d 678, 84 S.Ct. 1594; see generally Ullmann v. United States (1956), 350 U.S. 422, 100 L.Ed. 511, 76 S.Ct. 497.

The privilege does not, however, prevent the use of information voluntarily supplied by the witness (United States v. Weber (3d Cir. 1970), 437 F.2d 327, cert. denied (1970), 402 U.S. 932, 28 L.Ed.2d 867, 91 S.Ct. 1524; People v. Jackson (1970), 130 Ill. App.2d 170) or information supplied by a third party. It has long been recognized that the privilege extends to private papers as well as oral testimony. (United States v. White (1944), 322 U.S. 694, 88 L.Ed. 1542, 64 S.Ct. 1248; Boyd v. United States (1886), 116 U.S. 616, 29 L.Ed. 746, 6 S.Ct. 524.) These constructions of the privilege have developed in the context of criminal proceedings. In the cases at bar, however, the privilege is being claimed in disciplinary proceedings.

Such proceedings are typically considered to be sui generis or quasi-criminal. (In re Ruffalo (1968), 390 U.S. 544, 551, 20 L.Ed.2d 117, 122, 88 S.Ct. 1222, 1226.) Older interpretations of the fifth amendment restricted its application to purely criminal, as opposed to non-criminal matters. It has not been until more recently that the emphasis regarding applicability has switched to the nature of the statement and resulting sanctions rather than focusing on the nature of the proceeding. (In re Gault (1967), 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428.) Fifth amendment protection has been extended to statements made in the course of disciplinary proceedings. (Spevack v. Klein (1967), 385 U.S. 511, 17 L.Ed.2d 574, 87 S.Ct. 625.) See generally Underwood, The Fifth Amendment and the Lawyer, 62 Nw. U.L. Rev. 129 (1967); Black, The Supreme Court, 1966 Term, 81 Harv. L. Rev. 69, 200 (1967-68); Discussion of Recent Decisions, 44 Chi.-Kent L. Rev. 63 (1967); Recent Decisions, 18 Syracuse L. Rev. 861 (1967).

In Spevack, a disbarrment proceeding was brought against a member of the New York bar, on a charge of refusing to honor a subpoena duces tecum. The attorney had refused to produce the demanded financial records and refused to testify. His sole defense was that the production of the records and his testimony would tend to incriminate him. The Appellate Division of the New York Supreme Court ordered the petitioner disbarred, holding that the constitutional privilege against self-incrimination was not available to him as a lawyer. The United States Supreme Court reversed. In concluding that disbarrment fell within the fifth amendment definition of "penalty" the plurality opinion stated:

"* * * `[P]enalty' is not restricted to fine or imprisonment. It means * * * the imposition of any sanction which makes assertion of the Fifth Amendment privilege `costly.' * * *." (Spevack v. Klein (1967), 385 U.S. 511, 515, 17 L.Ed.2d 574, 577, 87 S.Ct. 625, 628 (opinion of Douglas, J., joined by Warren, C.J., and Black and Brennan, JJ.).)

(See generally, Comment, The Privilege Against Self-Incrimination in Bar Disciplinary Proceedings. Whatever Happened to Spevack? 23 Vill. L. Rev. ...

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