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MATTER EDWARD L. SILVERBERG ET AL. (10/16/74)

SUPREME COURT OF PENNSYLVANIA


decided: October 16, 1974.

IN THE MATTER OF EDWARD L. SILVERBERG ET AL.

COUNSEL

Thomas B. Rutter, Philadelphia, for appellants.

Special Judicial Investigation; William P. Stewart, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Nix, J., filed a concurring opinion in which Roberts, J., joins. Jones, C. J., filed a dissenting opinion, in which Pomeroy, J., joins. Pomeroy, J., filed a dissenting opinion, in which Jones, C. J., joins.

Author: Roberts

[ 459 Pa. Page 110]

OPINION OF THE COURT

By order of October 28, 1971, the President Judge of the Court of Common Pleas of Philadelphia authorized a special judicial investigation into unethical conduct by members of the Philadelphia bar. In the course of this investigation appellants were called before an investigating judge who was to determine whether the evidence against them warranted institution of formal charges. The investigating judge concluded that formal charges were indicated.

Appellants were then tried before a three-judge special disciplinary court. The three-judge court found that appellants had engaged in unethical conduct, specifically, by soliciting negligence cases and submitting inflated medical cost reports. Accordingly, Silverberg, Levitan, and Oxman were ordered suspended from the practice of law for one, three, and five years respectively. The hearing court stayed the orders of suspension pending this appeal.*fn1

At the formal disciplinary hearing, Oxman and Levitan testified in their own defense; they denied any wrongdoing. On cross-examination special counsel for the investigation was permitted to elicit that appellants

[ 459 Pa. Page 111]

    had claimed the privilege against self-incrimination in the preliminary proceeding before the single investigating judge.*fn2 These references to appellants' exercise of their constitutional rights were allegedly designed only to impeach their credibility. We conclude that utilization, over objection,*fn3 of appellant's assertion of the

[ 459 Pa. Page 113]

    privilege against self-incrimination violated their rights under the Fifth Amendment to the United States Constitution*fn4 and article I, section 9 of the Pennsylvania Constitution P.S.*fn5 The orders suspending appellants must be reversed*fn6 and a new disciplinary hearing held.*fn7

[ 459 Pa. Page 114]

In Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957), the United States Supreme Court faced the question before us today. Defendant Halperin was accused of corruptly influencing witnesses before a federal grand jury. When called before another grand jury, he declined to answer certain questions because his answers might incriminate him. At trial he answered the same questions in a way consistent with innocence. The government was permitted, over objection, to cross-examine Halperin on his allegedly inconsistent responses. The trial judge however indicated that this cross-examination could be considered only as reflecting on the witness' credibility.*fn8

The Supreme Court reversed. Justice Harlan, writing for the majority, noted that the practice of impeaching a witness' credibility by bringing out a prior claim of the privilege against self-incrimination "has grave constitutional overtones." 353 U.S. at 423, 77 S.Ct. at 983-984. Reversal, however, was based on the Court's supervisory power. Id. at 424, 77 S.Ct. at 984. Two grounds for reversal were advanced. First, the Court, for the sake of argument, assumed that Halperin's trial testimony and earlier claim of privilege were inconsistent. It then held that the potential for prejudice inherent in this cross-examination so far outweighed its probative value that the trial court in its sound discretion should not have permitted the questions. Id. at 420-421, 77 S.Ct. at 982.

[ 459 Pa. Page 115]

Second, examining the defendant's testimony further, the Court concluded that the cross-examination was also improper because only prior inconsistent statements may be used to impeach. See 3A J. Wigmore, Evidence § 1040 (Chadbourn rev. 1970). Both the claim of privilege before the grand jury and the exculpatory answers at trial were "wholly consistent with innocence." 353 U.S. at 421, 77 S.Ct. at 982. Therefore no inconsistency existed and impeachment should not have been permitted.

The concurring opinion of Justice Black, joined by then Chief Justice Warren, and Mr. Justice Douglas and Mr. Justice Brennan, addressed the constitutional issue directly.

"I agree with the Court that use of this claim of constitutional privilege to reflect upon Halperin's credibility was error, but I do not, like the Court, rest my conclusion on the special circumstances of this case. I can think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them. It seems peculiarly incongruous and indefensible for courts which exist and act only under the Constitution to draw inferences of lack of honesty from invocation of a privilege deemed worthy of enshrinement in the Constitution."

Id. at 425-426, 77 S.Ct. at 984-985.

Since Grunewald was decided, several courts have concluded that the reasoning of the concurring opinion, which, of course, was in no way contradicted by the majority's failure to reach the constitutional issue, precludes cross-examination by reference to a prior claim of the privilege against self-incrimination. Fowle v. United States, 410 F.2d 48, 51-56 (9th Cir. 1969); Fagundes v. United States, 340 F.2d 673, 677-678 (1st Cir. 1965); Dean v. Commonwealth, 209 Va. 666, 166 S.E.2d 228

[ 459 Pa. Page 116]

(1969); State v. Greer, 17 Ariz.App. 162, 496 P.2d 152 (1972); People v. Jordan, 7 Mich.App. 28, 151 N.W.2d 242 (1967); State v. Martin, 84 N.M. 27, 498 P.2d 1370 (Ct.App.1972); Messier v. State, 428 P.2d 338 (Okl.Ct.Crim.App.1967).*fn9

Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which held the fifth amendment to prohibit comment on a defendant's silence, adopted the reasoning of the Grunewald concurring opinion.

"For comment on the refusal to testify is a remnant of the 'inquisitorial system of criminal justice' . . . which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly."

Griffin v. California, supra at 614, 85 S.Ct. at 1232-1233 (citations omitted). See Fowle v. United States, supra, 410 F.2d at 53; Dean v. Commonwealth, supra, 209 Va. at 670, 166 S.E.2d at 231; State v. Greer, supra, 17 Ariz.App. at 165, 496 P.2d at 155; cf. Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972). See also Fagundes v. United States, supra; Messier v. State, supra. We agree that an accused's constitutional right against self-incrimination is violated when a prior claim of the privilege against self-incrimination is introduced to impeach his credibility.*fn10

[ 459 Pa. Page 117]

It is elementary that a prior statement may be used to impeach a witness' credibility only if that statement is in fact inconsistent with the witness' testimony at trial. See 3A J. Wigmore, Evidence § 1040 (Chadbourn rev. 1970). It follows that when the three-judge court permitted the cross-examination in question it must necessarily have inferred that the prior claim of privilege was inconsistent with the later testimony of innocence.

The record does not establish that the three judges who sat as triers of fact in appellants' case directly attributed any indicia of guilt to the claims of privilege. But in finding the claims inconsistent with innocence and considering them to impeach appellants' credibility the Court made a constitutionally impermissible inference. As this Court stated more than a century ago:

"If the privilege claimed by the witness be allowed the matter is at an end. The claim of privilege and its allowance is properly no part of the evidence submitted to the jury, and no inferences whatever can be legitimately drawn by them from the legal assertion by the witness of his constitutional right. The allowance of the privilege would be a mockery of justice, if either party is to be affected injuriously by it."

Phelin v. Kenderdine, 20 Pa. 354, 363 (1853). See Johnson v. United States, 318 U.S. 189, 196-197, 63 S.Ct. 549, 553, 87 L.Ed. 704 (1943).

Appellants testified that they pleaded the privilege upon advice of counsel. Certainly a reasonable attorney could have many reasons other than concealing guilt for advising a client to claim the privilege at the investigatory

[ 459 Pa. Page 118]

    stage of disciplinary proceedings. The preliminary proceedings were ex parte; appellants had no opportunity to cross-examine and thus had no means to explain possible exculpatory facts. See Grunewald v. United States, supra, 353 U.S. at 422, 77 S.Ct. at 983. "The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances." Slochower v. Board of Higher Education, 350 U.S. 551, 557-558, 76 S.Ct. 637, 641, 100 L.Ed. 692 (1956). See E. Griswold, The Fifth Amendment Today 9-30, 53-82 (1957).*fn11

Just as an attorney may not be disciplined for invoking the privilege in a professional inquiry, Spevack v. Klein, 385 U.S. 511, 514-515, 87 S.Ct. 625, 627-628, 17 L.Ed.2d 574 (1967); Schlesinger Appeal, 404 Pa. 584, 614-616, 172 A.2d 835, 849-850 (1961), such invocation may not later be used to impeach his credibility when he asserts innocence. The "impeaching" cross-examination that was permitted here is "a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly." Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1232-1233, 14 L.Ed.2d 106 (1965); see Grunewald v. United States, 353 U.S. 391, 425-426, 77 S.Ct. 963, 984-985, 1 L.Ed.2d 931 (1957) (concurring opinion).

Here the loss of credibility suffered by appellants for claiming their rights was potentially devastating. Appellants' defense rested heavily upon their testimony professing innocence. The impermissible impeachment of their credibility effectively neutralized the most important defense witnesses.

On this record we cannot say with assurance that the untainted evidence alone, however persuasive, was sufficient to convince the trier of fact of appellants'

[ 459 Pa. Page 119]

    guilt. The testimony of various witnesses was directly contrary to that of appellants. Credibility was crucial in the factfinder's determination. The court explicitly stated that it chose to disbelieve appellants' testimony.

Even though we may assume that the court attached no inference of guilt to the prior plea of privilege, we must conclude that use of the prior plea even to impeach was prejudicial to the defense. Therefore appellants are entitled to a new disciplinary hearing at which no use of their prior claim of the privilege against self-incrimination should be permitted.

Appellant Silverberg's failure either to claim the privilege in the preliminary proceeding or to take the stand at the disciplinary hearing does not remove him from the ambit of our holding. This was a joint disciplinary hearing. Silverberg as much as either Oxman or Levitan rested his defense on their credibility. See United States v. Tomaiolo, 249 F.2d 683, 690-692 (2d Cir. 1957); State v. Boscia, 93 N.J.Super. 586, 600-602, 226 A.2d 643, 650-651 (App.Div.1967).

The evidence revealed that for two of the four years in question Silverberg was absent from the law office. The three-judge court found that Silverberg engaged in unethical conduct primarily on the theory that in a three-man office one lawyer could not be unaware of his partners' activities. Silverberg, the court reasoned, though not directly involved in the firm's personal injury cases, must have known of the conduct of his partners and "shared the ill-gotten gains."

At the new disciplinary hearing, with Oxman's and Levitan's credibility unimpeached by their claim of privilege, they may be found not to have engaged in unethical conduct. Thus to now discipline Silverberg for his knowledge of conduct for which the principals may not be disciplined would be both illogical and unjust. We conclude that Silverberg should also have a new disciplinary

[ 459 Pa. Page 120]

    hearing because the unconstitutional cross-examination of witnesses appearing in his defense deprived him of a disciplinary hearing conducted in accordance with due process. Cf. In re Disbarrment Proceedings, 321 Pa. 81, 184 A. 59 (1936); State v. Boscia, supra.

The order of the special disciplinary court is reversed and the case remanded for further proceedings consistent with this opinion.

     contd NIX, Justice (concurring).

While I join the Majority opinion, I feel compelled to comment on the belief expressed in Mr. Chief Justice Jones' Dissenting opinion that the resolution of the instant appeal is premised on a misapplication of the controlling statute governing the nature of review by this Court.

Apparently, there is some misunderstanding as to the effect of the legislative directive that this Court review de novo an allegation of professional misconduct.

The pertinent portion of the controlling statute reads as follows:

"and it shall be the duty of said supreme court to review the same de novo ; and the complainant shall have the right to offer new testimony by deposition or otherwise as said supreme court may direct, and upon hearing said court may modify, reverse or affirm said judgment, order or decree of the court below, as the justice and equity of the case shall require, . . ." (Emphasis added)

Act of May 19, 1879, P.L. 66, § 1, 17 P.S. § 1663. In construing the instant provision in Krehel Appeal, 419 Pa. 86, 213 A.2d 375 (1965) we said:

"Since the review is de novo, we are not bound by the findings and conclusions of the court below, but are free to make our own determination as to the weight and credibility of the evidence, and the inferences to be drawn therefrom, bearing in mind the well-established principle that a preponderance of evidence is necessary to establish an attorney's unprofessional conduct and the proof of such conduct must be clear and satisfactory; . . ."

Id. at 89, 213 A.2d at 377.

[ 459 Pa. Page 128]

However, in my judgment, it was not the import of the above quoted language to limit the methods available to us to determine those facts upon which a decision must depend. Unquestionably, we are free to make contrary findings of fact, draw independent inferences and reach opposing conclusions from those of the reviewing tribunal below. This however, does not preclude us from having the benefit of the appraisal of credibility made by the tribunal before which the witnesses actually appeared. Here, as a result of the taint occasioned by the improper consideration by the panel of the invocation of the 5th Amendment privilege, we were denied the opportunity. The purpose for the instant remand is to obtain a proper evaluation of the credibility of the witnesses from the tribunal below before we reach our ultimate decision.*fn1

     contd JONES, Chief Justice (dissenting).

I dissent. The majority contends that the order suspending appellants must be reversed because the utilization over objection, of appellants' prior assertions of the privilege against self-incrimination violated their rights under the Fifth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution. Without adverting to the merits of this position, my reading of the record clearly indicates that the initial cross-examination of both appellant Oxman and appellant Levitan in regard to their prior exercises of the Fifth Amendment privilege were not objected to and that when inquiries were later made into the reasons for the prior exercises, appellants' objections were sustained.*fn1

[ 459 Pa. Page 123]

Two other witnesses who had previously been called before the Special Disciplinary Court were also cross-examined with regard to prior assertions of the privilege against self-incrimination. When the first of these witnesses, J. P. McGraw, was so questioned, counsel for appellants objected on the grounds that this was not a proper question since it was not impeaching.*fn2 Appellants did not and had no standing to object to this questioning on a constitutional basis since the privilege against self-incrimination inured to the witness and not appellants.*fn3 Thus, even if we are to treat appellants' objection to the questioning of McGraw as representing a continuing objection to this line of questioning of subsequent witnesses, appellants can still not be said to have objected on the basis that the reference to the prior assertion of the privilege against self-incrimination raises an impermissible inference of guilt, thereby violating their rights under the United States and Pennsylvania Constitutions. Nevertheless, this is the sole basis of the reversal by the majority.

[ 459 Pa. Page 124]

I am thoroughly convinced that the majority mistakenly found reversible error to have occurred during the proceedings below. However, this determination is not really pertinent to the appropriate disposition of the case by the Court. The Act of May 19, 1879, P.L. 66, § 1, 17 P.S. § 1663 (now suspended by Supreme Court Rule 17-24(a) (4)), provides in pertinent part that "it shall be the duty of said supreme court to review the [proceedings] de novo. . . ." (Emphasis added) The legislative mandate and the consistent holdings of this Court are that such review is mandatory. Krehel Appeal, 419 Pa. 86, 213 A.2d 375 (1965); Schlesinger Appeal, 404 Pa. 584, 172 A.2d 835 (1961); Moyerman's Case, 312 Pa. 555, 167 A. 579 (1933).

The nature of our de novo review pursuant to the Act of May 19, 1879, requires in every case that we review a cold record. This record may be modified on appeal to this Court where errors of law have been committed by the court below. If the court below committed error in receiving certain evidence, then that evidence can be expunged from the record by this Court. If the court below erred in excluding evidence, then this evidence and any other new testimony may be offered by the complainant as specifically provided for by the Act of May 19, 1879.*fn4

The instant case was presented to this Court solely on the testimony introduced during the disciplinary proceedings below. Since our review is de novo we are not bound by the findings of fact and conclusions of the court below, but are free to make our own determination as to the weight and credibility of the evidence. Krehel Appeal, 419 Pa. 86, 213 A.2d 375 (1965). It is also to be noted that generally conclusions of the hearing court in disciplinary proceedings are very persuasive on this

[ 459 Pa. Page 125]

Court, since the court of first instance better knows the lawyer, his standing, character, credibility, and fidelity to trust. Kraus's Case, 322 Pa. 362, 185 A. 737 (1936). To the extent the opinion of the court below as to the credibility of Oxman and Levitan was tainted by the reference to their prior assertion of the privilege against self-incrimination, this resulted from their failure to object.*fn5 However, granting that such references were improper because they were not impeaching, and granting that appellants can raise on de novo appeal to this Court alleged errors not raised below, the appropriate and equitable remedy to be applied here is the expunction of these references from the record before this Court, not at a new disciplinary hearing.*fn6

That this Court is not able to judge the demeanor of the witnesses who appeared before the disciplinary court is inherent in the review provided for by the Act of May 19, 1879. To the extent that this review is not totally satisfactory, we can be comforted in knowing that this

[ 459 Pa. Page 126]

Act has now been suspended. Nevertheless, there is no authority by which this Court can evade its statutorily-mandated de novo review in the present case. In reviewing this case in adherence to the legislative mandate and the dictates of our prior case, law, it is clear beyond any question that the suspension orders should be affirmed.

POMEROY, Justice (dissenting).

I join the opinion of the Chief Justice, and add this separate opinion primarily to emphasize that our powers of de novo review under the Act of May 19, 1879, P.L. 66, § 1, 17 P.S. § 1663, permit us to disregard any error committed by the court below in admitting testimony that appellants Oxman and Levitan had invoked their constitutional privilege against self-incrimination at a prior stage of the disciplinary proceeding. Even if nothing in this statute prevents us from remanding a case to the trial court in appropriate circumstances, this course is not justified in the present case. There is abundant evidence in the record that appellants have engaged in unethical conduct. Moreover, nothing in the careful review of this evidence in the opinion of the court en banc below suggests that the court gave any weight whatever to this controverted testimony in making its findings; indeed, the claim of privilege is not so much as mentioned. Moreover, I find it hard to understand how remanding this case for retrial can guarantee a more impartial review of the evidence, for copies of the majority opinion will of course be read by the judges who will constitute the new disciplinary court, and presumably by common pleas judges throughout the Commonwealth. Thus we will have the anomaly that when this case is retried, no "factfinder . . . untainted by the unconstitutionally-elicited impeachment"*fn* will be available.

[ 459 Pa. Page 127]

In my view, a second trial of this case will be a costly and time-consuming exercise in futility.


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