The Fifth Amendment & Requests for Production

The constitutional right against self-incrimination is perhaps one of the most understood constitutional rights.  As some in the news found out earlier in 2017, it does not necessarily apply to documents.  Earlier this month, a local lawyer found that out.

Agwara v. State Bar of Nev. concerned two subpoenas the State Bar issued to an attorney as part of its investigation of potential trust account violations.^[1]  The attorney sought to invoke “his Fifth Amendment right against self-incrimination to quash subpoenas issued by the State Bar that seek production of client accounting records and tax records.”  It didn’t work.

The first subpoena basically sought information documenting 1) the beginning and end of certain attorney-client relationships; and 2) basically all of his firm’s financial records.  As to those records, the Supreme Court of Nevada adopted the three part analysis from Grosso v. United States.^[2]  Grosso prevents a person from asserting “from asserting their constitutional privilege against self-incrimination if: (1) the purpose of the inquiry is essentially regulatory, (2) the person asserting the privilege regularly maintained the records sought, and (3) the records have a public aspect.”  This exception to the Fifth Amendment rights,

applies not only to public documents in public offices, but also to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established. There, the Fifth Amendment privilege, which exists as to private papers, cannot be maintained.^[3]

The Grosso exception applied because all of the information sought in the first subpoena was information the attorney was required to keep anyway as part of his regulatory obligations and the State Bar had regulatory authority to inspect those records.  The second subpoena was subject to a different analysis.

The lesson is Fifth Amendment rights do not extend as far as many believe.

[1] 133 Nev. Adv. Rep. 96 (Dec. 7, 2017).
[2] 390 U.S. 62 (1968).
[3] (quoting Shapiro v. United States, 335 U.S. 1, 17 (1948)).