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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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