Attorneys Who Plead the Fifth: How the Self-Incrimination Provision Applies to New Jersey Attorney Disciplinary Proceedings
![handle is hein.journals/rutlj27 and id is 503 raw text is: ATTORNEYS WHO PLEAD THE FIFTH:
HOW THE SELF-INCRIMINATION PROVISION
APPLIES TO NEW JERSEY ATTORNEY
DISCIPLINARY PROCEEDINGS
I. INTRODUCTION
What happens when a New Jersey attorney is simultaneously a
defendant in a criminal prosecution and a respondent in an ethics
disciplinary proceeding for the same misconduct? If the disciplinary
proceeding occurs prior to the criminal proceeding, can the attorney invoke
the Fifth Amendment's self-incrimination protection to stay the disciplinary
proceeding? If the attorney is allowed to plead the Fifth, can adverse
inferences be drawn from his or her silence? This Note explores the impact
of utilizing the Fifth Amendment's self-incrimination privilege in New
Jersey attorney disciplinary proceedings.
Traditionally, the Office of Attorney Ethics of the Supreme Court of
New Jersey' (OAE) has deferred its ethics disciplinary proceeding until
after the criminal proceeding for the same offense has been concluded.2
Recently, attorney disciplinary proceedings have included such egregious
ethical violations that the OAE desired immediate pursuit of the disciplinary
proceeding.3 This Note investigates the ramifications of pleading the Fifth
Amendment in an attorney disciplinary proceeding. Part II provides a history
1. This is the office that investigates and prosecutes attorney ethics violations in the
State of New Jersey. 1993 STATE OF THE ATrORNEY DISCIPLINARY SYSTEM REPORT 2
[hereinafter REPORT]. REPORT is the annual report submitted by the Office of Attorney
Ethics to the Supreme Court of New Jersey.
2. This practice has been consistent with the recommendation of a special committee
appointed by the American Bar Association in 1970. This Special Committee on Evaluation
of Disciplinary Enforcement:
recommended and proposed that state courts adopt a rule providing that
disciplinary proceedings would be deferred until there is a termination of pending
criminal or civil litigation involving substantially similar factual allegations,
provided that the respondent-attorney proceeds with reasonable dispatch to insure
the prompt prosecution and conclusion of pending litigation.
Committee on Legal Ethics v. Pence, 240 S.E.2d 668, 674 (W. Va. 1977). Although New
Jersey has not codified such a rule, it did observe the general practice suggested by the
committee.
3. This scenario occurs when there has been some delay in the criminal proceeding.
It also arises when an ethics violation has been so severe that the attorney has been
suspended pending the outcome of the disciplinary proceeding. If the attorney continues to
practice in spite of the suspension, the OAE looks to expedite the disciplinary proceeding.](ViewImageLocal?handle=hein.journals/rutlj27&div=19&collection=&method=preview&ext=.png&size=3)
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Attorneys Who Plead the Fifth: How the Self-Incrimination Provision Applies to New Jersey Attorney Disciplinary Proceedings
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