DeBock v. StateDeBock v. State
We have for our review State v. Rendina, 467 So.2d 734 (Fla. 4th DCA 1985). We have jurisdiction pursuant to
The petitioner, DeBock, was served with a subpoena by the state attorney‘s office for the Seventeenth Judicial Circuit. DeBock‘s testimony was sought in connection with criminal charges pending against Richard F. Rendina, an attorney, for offering unlawful compensation to DeBock while DeBock was an assistant state attorney. DeBock asserted his fifth amendment privilege and refused to answer questions at a deposition, contending that the immunity flowing from
The district court reversed, holding that the witness seeking immunity from bar discipline is the one who has the burden of obtaining it from this Court. The district court reasoned that
DeBock petitioned this Court for review, alleging that the district court‘s opinion was in conflict with our decision in Ciravolo v. The Florida Bar, 361 So.2d 121 (Fla. 1978), which dealt with two attorneys who had been granted immunity from criminal prosection pursuant to
Two attorneys, Ciravolo and Feldman, had been subpoenaed to appear before a
After discussing several of our prior decisions dealing with the immunity statute, Lurie v. Florida State Board of Dentistry, 288 So.2d 223 (Fla. 1973), Headley v. Baron, 228 So.2d 281 (Fla. 1969), Florida Bar v. Massfeller, 170 So.2d 834 (Fla. 1964), and Florida State Board of Architecture v. Seymour, 62 So.2d 1 (Fla. 1952), we concluded that counsel for the state and the attorneys had justifiably relied on our “unfortunate” referenсe to attorneys in Lurie which had suggested that a grant of immunity to an attorney would also extend to bar disciplinary matters. Therefore, we held:
Since the testimony given in this case was predicated on a justifiable interpretation of this court‘s strong language in Lurie, and the court‘s imperfect handling of precedents, we are bound by the understаnding reached by counsel in this case.
361 So.2d at 124. We explicitly receded from the unfortunate reference to attorneys in Lurie, and recognized that because of the separation of powers doctrine and this Court‘s exclusive jurisdiction over attorneys pursuant to
DeBock‘s first claim, that bar discipline is penal and therefore, that the grant of statutory immunity must also extend to a bar inquiry in order to protect his fifth amendment privilege, is incorrect. Our decision in The Florida Bar v. Massfeller is controlling.1 In Massfeller we recognized not only the inherent power of a court to discipline an attorney, but also rejected the idea that an inquiry into an attorney‘s fitness to practice law is penal, i.e., is designed to punish an attorney. This Court explicitly embraced the reasoning of (then) Judge Cardozo in In re: Rouss, 221 N.Y. 81, 84-85, 116 N.E. 782, 783 (N.Y. 1917), cert. denied, 246 U.S. 661, 38 S.Ct. 332, 62 L.Ed. 927 (1918):
Membership in the bar is a privilege burdened with conditions. A fair private and prоfessional character is one of them. Compliance with that condition is essential at the moment of admission; but it is equally essential afterwards. Whenever the condition is broken the privilege is lost. To refuse admission to an unworthy applicant is not to punish him for past offenses. The examination into character, like the examination into learning, is merely a test of fitness. To strike the unworthy lawyer from the roll is not to add to the pains and penalties of crime. The examination into character is renewed; and the test of fitness is no longer satisfied. For these reasons courts have repeatedly said that disbarment is not punishment. (citations omitted).
170 So.2d at 839. We reaffirm here our holding in Massfeller that bar disciplinary proceedings are remedial, and are designed for the protection of the public and the integrity of the courts. An attorney as an officer of the Court and a member of the third branch of government occupies a unique position in our society. Because attorneys are in a position where mеmbers of the public must place their trust, property and liberty, and at times even their lives, in a member of the bar, society rightfully
DeBock‘s second and third claims must logically be dealt with together. DeBock alleges that Ciravolo left intact our prior decisions, specifically Lurie, which held that a grant of immunity from criminal prosecution extends to professional license revocation proceedings. From this premise DeBock argues that equal protection demands that an attorney be treated the same as non-lawyer professionals. We reject both suggestions.
First, we point out that the underpinnings of both Lurie and Seymour, upon which DeBock relies, were effectually gutted when
Hоwever, the 1982 amendment narrowed the scope of the grant and the statute now provides for only use and derivative use immunity. The Supreme Court in Kastigar held that this is as broad as is constitutionally required to encompass the fifth amendment‘s protection against compulsory self-incrimination. 406 U.S. at 453, 92 S.Ct. at 1661.4 By its plain terms,
Even accepting arguendo DeBock‘s assertion that Ciravolo left intact Lurie and Seymour, the 1982 amendment to
However, regardless of this statutory analysis, DeBock‘s reading of Ciravolo is incorrect. We explicitly limited the “unfortunate” reference to lawyers made in Lurie, and held that a grant of immunity under
DeBock further argues, in support оf his equal protection claim, that Ciravolo cannot be read to set forth different standards for attorneys than for other regulated professionals. Not only did we explicitly limit Lurie‘s rational as it applied to attorneys, our opening paragraph in Ciravolo belies DeBock‘s argument: The question we considered in that case was “whether or not evidence given by an attorney, following a grant of immunity under
The 1975 version of
Relying on our separation of powers holding in Ciravolo, DeBock‘s final argument is that the burden is on the state to seek from this Cоurt bar immunity for an attorney-witness. We reject this suggestion. In Ciravolo we held that an immunized attorney may be granted immunity from bar disciplinary proceedings by order of this Court, “[w]here it appears that the greater good to society will be served by granting immunity from disciplinary action to an attorney ...” Id. at 125. Who would have the burden of obtaining such immunity from this Court was not exрlicitly addressed in Ciravolo. However, our holdings here and in Ciravolo that the immunity conferred by 914.04 does not extend to bar disciplinary proceedings because they are remedial, not penal, and our recognition in Ciravolo that a state attorney is powerless to interfere with this Court‘s exclusive jurisdiction over members of the bar, easily leads us to conclude that it is the attorney seeking bar immunity who must so persuade this Court. As we stated in Ciravolo:
The court is concerned about the practice of law by those involved in wrong doings of a criminal nature, but, we are also mindful that this court and the profession should not place a stumbling block in the path of the citizens of this state who strive mightily to uncover and rid our communities of criminal аcts.
Id. at 125. It would not only be inconsistent with our separation of powers concerns to place this burden on a state attorney, it would also needlessly “place a stumbling block in the path” of those whose duty is to investigate and prosecute criminal wrongdoing.
Once immunity was granted to DeBock pursuant to
It is so ordered.
McDONALD, C.J., and OVERTON, SHAW and GRIMES, JJ., concur.
BARKETT, J., dissents with an opinion, in which KOGAN, J., concurs.
BARKETT, Justice, dissenting.
I dissent. I cannot agree with the premise from which the majority‘s conclusion derives. To say that bar disciplinary proceedings are remedial in order to protect the public and are not penal in nature is pure semantic tomfoolery. It totally ignores the numerous casеs which have imposed discipline when the conduct involved had no connection with the protection of the public, e.g., in cases where a felony conviction automatically results in discipline without any analysis of the specific crime as it relates to the protection of the public.
I agree, rather, with the United States Supreme Court which has recognized that where the accused attorney asserted his constitutional privilege against self-incrimination and refused to testify, the attorney should “`suffer no penalty ... for such silence.‘” Spevack v. Klein, 385 U.S. 511, 514, 87 S.Ct. 625, 628, 17 L.Ed.2d 574 (1967) (quoting Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1494, 12 L.Ed.2d 653 (1964)). The Supreme Court stated further that in this context “penalty” is not restricted to fine or imprisonment, rather it means the imposition of аny sanction which makes the assertion of the fifth amendment privilege “costly.” 385 U.S. at 515, 87 S.Ct. at 628. The Court concluded that the self-incrimination clause extends to lawyers as well as other individuals and “it should not be watered down by imposing the dishonor of disbarment and the deprivation of a livelihood as a price for asserting it.” Id. at 514, 87 S.Ct. at 627. In In re Ruffalo, 390 U.S. 544, 550, 88 S.Ct. 1222, 1226, 20 L.Ed.2d 117 (1968), the Court said “[d]isbarment, designed tо protect the public, is a punishment or penalty imposed on the lawyer.” In Gardner v. Broderick, 392 U.S. 273, 277, 88 S.Ct. 1913, 1916, 20 L.Ed.2d 1082 (1968), when comparing a police officer‘s right against self-incrimination with that of an attorney, the Supreme Court agreed with the premise that “a lawyer could not constitutionally be confronted with Hobson‘s choice between self-incrimination and forfeiting his means of livelihood.”
Moreover, the United States Supreme Court ruling in Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 281, 105 S.Ct. 1272, 1277, 84 L.Ed.2d 205 (1985), has cast considerable doubt on this Court‘s prior statements that the opportunity to practice law is not a right protected by the Constitution:
The lawyer‘s role in the national economy is not the only reason that the opportunity to practice law should be considered a “fundamental right.”
Although Piper used this rationale to void a residency requirement restricting the practice of law to those who live within a state, this dictum nonetheless suggests that the United States Supreme Court is starting to view the practice of law in a far different light than that suggested by the majority. If the opportunity to practice law indeed is a “fundamental right,” I see nо justification for the majority‘s holding that bar disciplinary proceedings are not penal in nature. Any proceeding that may strip someone of a fundamental right by definition is “penal” and therefore subject to all the strictures of the fifth amendment.
I therefore must respectfully dissent.
KOGAN, J., concurs.