Opinion Number: 98-21
Date of Issue: September 25, 1998

JUDGE'S DUTY TO REPORT ATTORNEY MISCONDUCT, WHEN MISCONDUCT DISCOVERED DURING AN IN CAMERA INSPECTION, OCCASIONED BY ATTORNEY'S EXERCISE OF FIFTH AMENDMENT PRIVILEGE AGAINST SELF INCRIMINATION.

Must a judge report an attorney for professional misconduct when the misconduct was discovered at an in camera inspection, wherein the attorney had invoked his Fifth Amendment rights?
ANSWER: YES, pursuant to Canon 3(D)(2).

To enforce a non-Florida federal judgment, the parties stipulated to an in camera consideration of the defendant's DeLisi objection. In the absence of the judgment creditor's attorney, but with a court reporter, the defendant and his attorney presented information showing why and how his answers to the post-judgment interrogatories would tend to incriminate him. The judge agrees the answers could tend to incriminate the defendant and can be characterized as an admission to ongoing criminal tax offenses. The information was provided for the purpose of securing a constitutional right and was given in camera. The judgment debtor defendant is a member of The Florida Bar. The judge wants to know if he is required to report the defendant attorney's misconduct to The Florida Bar.

Fla. Code Jud. Conduct, Canon 3(B)(11) states that a judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity. A judge's judicial duties include reporting attorney misconduct, as explained below. Canon 3(D)(2) directs that a judge who receives information or has actual knowledge that a substantial likelihood exists that a lawyer has committed a violation of the Rules Regulating The Florida Bar shall take appropriate action. This Canon is mandatory, not hortatory. The Florida Supreme Court stated:
All Florida judges are, first and foremost, attorneys and members of The Florida BarŠ. As such, Florida judges, just like every other Florida attorney, have an obligation to maintain the integrity of the legal profession and report to The Florida Bar any professional misconduct of a fellow attorney. 5-H Corporation v. Padovano, 708 So.2d 244 (Fla. 1997).

The Committee has previously addressed issues regarding the duty of a judge to report illegal conduct. In Opinion 78-4, a judge inquired whether he had an obligation to report assertions voluntarily made under oath during a domestic relations case, wherein one of the parties testified to having intentionally and deliberately omitted income from Federal Income Tax Returns filed. The committee noted that Section 4 Title 18 USCA provides that "whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined not more than $500.00 or imprisoned not more than three years, or both." The opinion noted that the case law tended to lead to the conclusion that in order to be guilty of the proscribed conduct some affirmative act of concealment was necessary. Three members of the committee found the judge had a definite obligation to report the matter. Six members were of the view that although the judge had no obligation, neither was there an ethical prohibition; thus leaving the determination to the judge's discretion. It must be noted that the testimony in that case was given voluntarily, and the parties were not members of The Florida Bar.

In Opinion 97-17, a special master asked whether he had an obligation to report a member of The Florida Bar for misconduct. At a hearing, the former wife testified that her attorney told her to file pleadings that an adoption of her child was contemplated, thereby relieving the father of his support obligation and visitation privileges. The Committee agreed that the conduct related by the former wife would be in violation of the Rules of Professional Conduct. The Committee found the Special Master was not obligated to make a report to The Florida Bar. The Committee directed the master to first make a determination as to whether a substantial likelihood existed that the lawyer in question violated the Rules of Professional Conduct. If the inquirer concluded that a substantial likelihood existed, then he must answer the question of what the Code means by "appropriate action." Therefore, although the inquirer was not obligated to file a grievance, he was required to reach a reasoned determination of whether a substantial likelihood existed that the lawyer had committed a violation of the Rules Regulating The Florida Bar. Should he reach that conclusion, he would then be obligated to inform the Bar or the local grievance committee.

In the present case, the judge has already made the determination that a substantial likelihood exists that the lawyer has committed a violation of the Rules of Professional Conduct. However, this violation was uncovered only after the attorney exercised his fifth amendment rights.
"There are two aspects of the privilege against self-incriminationŠ. The first involves the absolute prohibition of compelling a defendant in a criminal case to testify against himself. The second pertains to the right of a witness in a proceeding other than a criminal prosecution in which he is a defendant to refuse to respond to interrogation on the grounds that his answers might tend to incriminate him." DeLisi v. Smith, 423 So.2d 934 (Fla. 2d DCA 1982). The second prong is the issue before the Committee, and was discussed in Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967).

Spevack was a proceeding to discipline the petitioner, a member of the New York Bar, for professional misconduct. He refused to honor a subpoena duces tecum served on him in that he refused to produce financial records and refused to testify at the judicial inquiry. The Petitioner's defense was that the production of the records and his testimony would tend to incriminate him. The Apellate Division of the New York Supreme Court ordered him disbarred, holding that the constitutional privilege against self-incrimination was not available to him, relying on Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156 (1961).

The Spevack court concluded "that Cohen v. Hurley should be overruled, that the self-incrimination Clause of the Fifth Amendment has been absorbed in the Fourteenth, that it extends its protection to lawyers as well as to other individuals, and that it should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for asserting it." The Court further stated, "We find no room in the privilege against self-incrimination for classifications of people so as to deny it so some and extend it to others. Lawyers are not excepted from the words 'No person * * * shall be compelled in any criminal case to be a witness against himself'; and we can imply no exception." The disbarment was reversed.

The Florida Supreme Court declined to follow Spevack in DeBock v. State, 512 So.2d 164 (Fla. 1987). In DeBock, an attorney was served a subpoena by the state attorney's office to testify in connection with criminal charges pending against another attorney, Richard F. Rendina. Rendina had been accused of offering a bribe to DeBock. DeBock did not accept the bribe, but he also did not report the attempt to The Florida Bar. DeBock refused to answer questions, asserting his Fifth Amendment privilege. The state had given DeBock immunity under §914.04 Fla. Stat. (1983), but DeBock argued this immunity was insufficient to immunize him from bar disciplinary proceedings. The trial court agreed with DeBock and entered an order finding he was entitled to invoke his Fifth Amendment privilege until being granted immunity from bar proceedings. The district court reversed, finding that the statutory immunity granted immunity solely from criminal prosecution and that, since bar disciplinary proceedings were remedial and not penal, the immunized witness could not invoke his Fifth Amendment privilege and refuse to testify because of potential bar disciplinary proceedings. In the Florida Supreme Court, DeBock argued that the statutory immunity also extended to bar disciplinary proceedings.

The Florida Supreme Court disagreed with DeBock. The court reaffirmed its holding in The Florida Bar v. Massfeller, 170 So.2d 834 (Fla. 1964), that bar disciplinary proceedings are remedial, and are designed for the protection of the public and the integrity of the courts. Since bar disciplinary proceedings are not penal, the grant of use and derivative use immunity conferred on DeBock extended only to the criminal investigation or proceeding. He had no right to invoke his Fifth Amendment privilege until immunized from bar discipline.

The DeBock court noted the Supreme Court had found that an immunized attorney's testimony in a criminal proceeding could be used in a bar inquiry, in Ciravolo v. The Florida Bar, 361 So.2d 121 (Fla. 1978). "This clearly sets forth the proposition that attorneys can be held to different standards than other regulated professions." 512 So.2d at 167. The reasons attorneys are held to a different standard is because of the unique role of attorneys as officers of the court. This role mandates that attorneys be held to the highest of ethical standards. The court ended its opinion by noting that since immunity had been given to DeBock, he must now testify or face contempt.
The defendant attorney may be able to assert that he did not waive his Fifth Amendment rights in the in camera proceedings if there is a criminal prosecution. (See State v. Spiegel 710 So. 2d 13 (Fla. 3d DCA 1998). The appellate court found that an attorney's statements made during a Florida Bar Grievance Committee interview did not operate as a testimonial waiver of the Fifth Amendment privilege against self-incrimination for the purpose of offering such statements in a subsequent criminal proceeding as direct evidence of guilt. The attorney believed he was compelled to answer the Bar Grievance questions. The Supreme Court has not decided whether to accept this case for certiorari review.) However, the higher standard that attorneys must be held to as officers of the court require that the judge report the defendant attorney's conduct to The Florida Bar.

§914.04, Fla. Stat. (1983).
18, U.S.C. § 4
Florida Judicial Ethics Advisory Committee Opinions: 78-4; 97-17.

Florida Code of Judicial Conduct; Canons 3(B)(11); 3(D)(2).

DeLisi v. Smith, 423 So.2d 934 (Fla. 2d DCA 1982).
DeLisi v. Bankers Insurance Co., 436 So.2d 1099 (Fla. 4th DCA 1983).
5-H Corporation v. Padovano, 708 So.2d 244 (Fla. 1997).
Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954, 6 L.Ed.2d 156 (1961).
Spevack v. Klein, 385 U.S. 511, 87 S.Ct. 625, 17 L.Ed.2d 574 (1967).
DeBock v. State, 512 So.2d 164 (Fla. 1987).
The Florida Bar v. Massfeller, 170 So.2d 834 (Fla. 1964).
Ciravolo v. The Florida Bar, 361 So.2d 121 (Fla. 1978).
State v. Spiegel, 710 So.2d 13 (Fla. 3d DCA 1998).

The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.

For further information, contact The Honorable Lisa D. Kahn, Chair, Judicial Ethics Advisory Committee, Moore Justice Center, 2825 Judge Fran Jamieson Way, Viera, Florida, 32940-8006.

Participating Members: Judges Cardonne, C. Kahn, L. Kahn, Patterson, Rodriquez, Rushing, Smith, Tolton

Copies furnished to:
Justice Charles T. Wells
All Committee Members
All Members of the J.Q.C
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)