Monday, February 2, 2009

Effect of the 5th Amendment right against self-incrimination in disciplincary proceedings

The Illinois Review Board has posted a decision today that explains the procedure to follow when an attorney facing discipline refuses to answer questions by claiming the protection of the 5th Amendment. Here, after the lawyer refused to answer certain questions on Fifth Amendment grounds, the Administrator sought an unfavorable inference and to have the invocation treated as a sign that the lawyer was not candid and cooperative. The board held that although was appropriate for the Hearing Board to draw an adverse inference from Respondent’s assertion of the Fifth Amendment for purposes of their function as a fact-finding body, it was inappropriate for the Hearing Board to have treated that assertion as tantamount to a "failure to cooperate" or as an aggravating factor for purposes of imposing discipline. The opinion is available here.

Thanks to David Frisch of Legal Profession Blog for the information.

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