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Attorneys and other professionals working in a partnership cannot invoke the right against self-incrimination to avoid revealing partnership information, the New York Court of Appeals held last week. The New York high court for the first time adopted Fifth Amendment jurisprudence by the U.S. Supreme Court and made clear that the state constitution affords attorneys and others in partnership relationships with no more of a shield against self-incrimination than the U.S. Constitution. It specifically adopted the Supreme Court’s 1974 holding in Bellis v. U.S., 417 U.S. 85, and declined to read Article I, Section 6 of the state constitution more expansively than the Fifth Amendment. Matter of Nassau County Grand Jury Subpoena Duces Tecum Dated June 24, 2003, No. 60, involves a small Manhattan firm from which New York Attorney General Eliot Spitzer seeks information pertaining to an investigation into auto insurance fraud and the role of personal injury attorneys in perpetuating fraud. The firm was not identified in the decision and the briefs are sealed. The subpoena sought records on personal injury cases the firm has handled since January 1999, including financial records, retainer statements and records of payments to medical providers and their management or marketing companies. It also demanded a list of all present and former partners and associates. The firm moved to quash, relying in part on New York precedent making clear that a partnership is not a separate and distinct entity from its individual partners (see Williams v. Hartshorn, 296 N.Y. 49 (1946)). On that reasoning, the firm contended, its individual partners have a Fifth Amendment or equivalent state constitutional protection that would permit them to withhold potentially incriminating information. But last week, by a 7-0 vote, the Court of Appeals refused to interpret the state constitutional protection against self-incrimination beyond that recognized by the U.S. Supreme Court in Bellis. Writing for the court, Judge George Bundy Smith noted that while the court has on several occasions interpreted the state constitution more broadly than the U.S. Constitution, it is reluctant to do so when the language in the two constitutions is essentially the same. He said there is “no material textual difference between the relevant constitutional provisions” in the Fifth Amendment and Article I, Section 6 that would warrant a departure from Bellis. “[W]e hereby adopt Bellis and hold that an individual partner of a law firm, whose firm was served with a subpoena duces tecum seeking the production of firm records, cannot rely on the constitutional privilege against self-incrimination” to withhold records, even if they might incriminate the partner personally, Smith wrote. He stressed that lower courts had already decided that the records at issue here were not protected under the attorney-client privilege. Smith said that under Bellis, the law firm in this case is a “collective entity” and that the attorneys cannot invoke what is essentially an individual right against self-incrimination.

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