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9 Wash. St. B. News 1 (1955)

handle is hein.barjournals/wasbn0009 and id is 1 raw text is: Wa objngton btate JLai AECtu Vol. IX, No. 1 JANUARY-FEBRUARY, 1955 Page 1 LAWYERS AND THE FIFTH AMENDMENT At the Annual Convention of the State Bar at Spokane last September, the gen- eral assembly went on record in favor of having the E oard of Governors give im- mediate consideration to the formulation and recommendation to the Supreme Court of the adoption of an amendment of the rules for the discipline of attor- neys, by adding as a ground for repri- mand, suspension or disbarment, a law- yer's claiming the protection of the Fifth Amendment in court proceedings or leg- islative hearings. A subcommittee of the Board of Gov- ernors was immediately appointed to consider the matter, the subcommittee consisting of: George W. Martin, Seattle, chairman; A. H. Ward, Sedro-Woolley, and Ralph M. Rogers, Tacoma. The subcommittee held an open hear- ing, which was heavily attended, and in- vited the submission of briefs. The Seattle Bar Association thereupon requested the Board of Governors to defer action until completion of a study by its own Commit- tee on Civil Rights, consisting of: Charles Horowitz, chairman; Edward W. Allen, John Ambler, Paul P. Ashley, William D. Askren, Fred W. Catlett, Irv- ing Clark, Jr., Clinton H. Hartson, Edward E. Henry, Gerald D. Hile, George Kin- near, Kenneth A. MacDonald, Clay Nixon, John N. Rupp, George R. Stuntz, W. Paul Uhlmann and Wilbur Zundel. That report, unanimously adopted, has Just been completed and filed, and after a documented study of the authorities, concludes with the following: Recently there has been considerable agitation concerning and criticisms lev- eled against the invocation of the Fifth Amendment. Such criticisms overlook the reason for the Fifth Amendment and the history out of which It arose, and further overlook the fact that a witness may claim the protection of the Fifth Amend- ment without necessarily being guilty of the crime involved or under Investiga- tion. Thus, fear of unjustified prosecu- tion is itself, under the authorities, suf- ficient to justify the invocation of the Fifth Amendment. What the legal pro- fession must make certain is that the profession will not by its rules of disci- pline hamper lawyers In the fearless dis- charge of their duties to advise their clients with that free independence of spir!t that is so essential to a vigorous and courageous defense of the liberties of the citizen. The fact that a lawyer may hold unpopular opinions or defend a client in an unpopular cause is not pro- fessional misconduct. Indeed, the ob- servance of the lawyer's oath is the citi- zen's protection against illegal conduct. Recently the trustees of the Seattle Bar Association adopted a resolution pointing up the lawyer's duty in cases involving the defense of persons involved in un- popular causes. It seems plain, however, that when an attorney of this State refuses to answer a question properly put to him, upon the ground that the answer would tend to in- criminate him, that refusal should be properly in~estigated by the State Bar Association. It certainly should not be ignored. Summarizing, therefore, the results of the foregoing discussion, It is the opinion and recommendation of the Civil Rights Committee of the Seattle Bar Associa- tion as follows: 1. That the Supreme Court of the State of Washington should not adopt a rule making the mere invocation by an attorney of the Fifth Amendment or Ar- ticle I, Section 9 of the State Constitution, in itself ground for disbarment because First: The invocation of the privilege is not necessarily an admission of the guilt of conduct which is ground for dis- barment; Second: Adequate disciplinary ma- chinery Is available for the improper or unjustified use of the privilege by an at- torney, including its use for a purpose not warranted by the privilege, and its use to hide personal guilt. In that con- nection, it is to be recalled that it has been held that in a disbarment proceed- ing an attorney may not refuse to be a witness against himself by invoking a constitutional provision similar to that of Article I, Section 9 of the State Con- stitution, thereby preventing full and free investigation of his conduct as an attorney for the purpose of determining his fitness to continue the practice of law. Furthermore, should he decline to answer questions propounded on the ground that his answer might tend to Incriminate him, adverse Inferences may be drawn against him on that account. It will be recalled that the resolution of the House of Delegates of the Ameri- can Par Association merely recommended Inquiry Into the conduct of lawyers who invoked the Fifth Amendment, and did not recommend that the mere Invocation of the Fifth Amendment should be ground for disbarment. The conclusions here reached are therefore consistent with that resolution. 2. The Committee further reconi- JUDGE OLSON DIES The bench and bar of the State suf- fered a great loss with the unexpected death on January 15 of Judge Ralph 0. Olson of the State Supreme Court. Judge Olson, 52, died of a cerebral hemorrhage. Judge Olson was born in Alden, Min- nesota, and was graduated from the m- versity of Minnesota law school. He moved to the State of Washington and was admitted to the bar here in 1924. He practiced law in Bellingham and was police judge there from 1926 until he as- cended the Superior Court bench in 1930. In 1951 he was appointed to the Supreme Court vice Hon. Walter B. Beals when Judge Beals retired. He was elected to the Supreme Court in 1952. Among those surviving him are his sons, Charles and Dan, both members of the bar. RICHARD B. OTT APPOINTED TO SUPREME COURT Judge Richard B. Ott, of the Superior Court for Adams County, was appointed by Governor Langlie to the State Su- preme Court in place of Judge Ralph 0. Olson, deceased. Judge Ott was sworn in on January 24 and immediately assumed his duties on the court. SOCIETY SECTION Clydene L. Morris and William G. En- nis were married in Seattle on January 29. Mrs. Ennis is the former Executive Secretary of the State and Seattle Bar Associations, and Mr. Ennis is the mem- ber of the Board of Governors from the Fifth Congressional District and a mem- ber of the Spokane bar. After a honey- moon in Arizona they will make their home in Spokane. mends, however, that hereafter, when- ever a Washington attorney invokes the privilege against compulsory self- incrimination, the local Administrative Committee of the Bar with jurisdiction In the matter, in the exercise of the power to investigate which that Commit- tee now has, should cause an investiga- tion to be made of his reason for in- voking the privilege with a view to determining after fair consideration whether the attorney involved is in fact guilty of misconduct, either incident to or independently of the invocation of the privilege, which is of such serious charac- ter as to warrant disciplinary proceed- ings including possible disbarment. The subject will be on the agenda of the Board of Governors at Its monthly meeting on March 12, at Aberdeen.

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