"Several examples of a Supreme Court gone wild, extending the 5th Amendment privilege against self-incrimination to disbarment proceedings and the like. They held that you can't be penalized for pleading the 5th, that they can't even take your bar card. Outrageous stuff, none of which was the intent of the Constitution. The real Constitution contains no such prohibition of penalties. You can always plead the 5th, you just can't expect to remain a lawyer, doctor, or get federal funds, etc. if you do. I hope someday the real Constitution is restored."
Actually, Defiant, you may be relieved to know that under existing controlling Supreme Court precedent, you certainly *can* be penalized for taking the Fifth in civil proceedings. In my post, I specifically mentioned this as a factor distinguishing civil and criminal proceedings. The U.S. Supreme Court has explained why the "no adverse inference rule" used in criminal cases does not apply in the civil context as follows: "In ordinary civil cases, the party confronted with the invocation of the privilege by the opposing side has no capacity to avoid it, say, by offering immunity from prosecution. The rule allowing invocation of the privilege, though at the risk of suffering an adverse inference or even a default, accommodates the right not to be a witness against oneself while still permitting civil litigation to proceed. Another reason for treating civil and criminal cases differently is that 'the stakes are higher' in criminal cases, where liberty or even life may be at stake, and where the Government's 'sole interest is to convict.'" Mitchell v. United States, 526 U.S. 314, 318-19 28 (1999) (quoting Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)). In some sense, the civil situation can be likened to federal criminal cases prior to Griffin v. California, 380 U.S. 609 (1965), when prosecutors could ask fact finders to draw inferences against defendants because of their failure to testify.
Here is some more case law regarding that general issue:
Deciding whether to take the Fifth is a matter of personal choice, to be exercised in view of the facts of the particular case. Freeman v. Kansas City Pub. Serv. Co., 30 S.W.2d 176, 182 (Mo. App. W.D. 1930). A party making this choice must weigh "the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts[.]" Brown v. United States, 356 U.S. 148, 155 (1958). Accordingly, a "party who asserts the privilege against self-incrimination must bear the consequence of lack of evidence." United States v. Taylor, 975 F.2d 402, 404 (7th Cir. 1992). "This lost opportunity [to present evidence] is exactly what any individual involved in litigation loses when he elects not to testify. The Fifth Amendment gives no protection from that loss." Cox v. McNeal, 577 S.W.2d 881, 888 (Mo. App. E.D. 1979).
In the civil context, one of the potential results of such a "lack of evidence" has been described by the authors of one well-respected treatise as follows: "In some cases if a party claims the privilege and does not give his or her own evidence there will be nothing to support his or her view of the case and an adverse finding or even a directed verdict or grant of summary judgment will be proper." 8 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2018 at 288 (2d ed. 1994).
Another potential negative consequence was discussed by the United States Supreme Court in Baxter v. Palmigiano, 425 U.S. 308, 318 (1976), which held that reliance on the Fifth Amendment in civil cases may give rise to an adverse inference against the party claiming its benefits: "The prevailing rule [is] that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence against them: the Amendment 'does not preclude the inference where the privilege is claimed by a party to a civil cause.'" Id. (quoting 8 J. Wigmore, Evidence § 2272 at 439 (McNaughton rev. 1961)) (U.S. Supreme Court's emphasis). The rule that an adverse inference may be drawn from Fifth Amendment silence in civil proceedings has also been widely recognized by the federal circuit courts of appeal in the decades since Baxter was decided. See LaSalle Bank Lake View v. Seguban, 54 F.3d 387, 390 (7th Cir. 1995) (collecting cases). This rule (or the state constitutional equivalent) has also been expressly recognized by the courts of at least 18 states. See, e.g., 8 J. Wigmore, Evidence § 2272 n.14 at 439 (McNaughton rev. 1961 & 2003 Cum. Supp.).
An important reason for permitting the adverse inference approved in Baxter to be drawn in the civil context was elucidated in Sparks v. Sparks, 768 S.W.2d 563, 567 (Mo. App. E.D. en banc 1989): "Fundamental fairness requires that a plaintiff be afforded some remedy lest a defendant defeat the claim by concealment. The balance inherent in our adversary system is distorted if one party to a civil action is permitted by invocation of the privilege against self-incrimination to unilaterally control full presentation to the fact finder of all of the evidence pertaining to all of the issues. Thus, whether asserted by a plaintiff or a defendant, invocation of the privilege will, in most cases, require some form of judicial response of a remedial nature to eliminate any undue advantage which might flow from the ability to conceal pertinent evidence." Invocation of the Fifth Amendment thus poses substantial problems for the opposing party, who is deprived of a source of information that could conceivably be determinative in a quest to discover the truth. Moreover, because the privilege may be initially invoked by one party during discovery and then later waived at a time when the other party can no longer secure the benefits of discovery, the potential for unfair advantage or exploitation is apparent. Sec. & Exch. Comm'n v. Graystone Nash, Inc., 25 F.3d 187, 190 (3d Cir. 1994).
Once a party establishes a prima facie case, the effect of an adverse inference is to shift the burden of producing evidence to the individual invoking the Fifth Amendment. In re Salzman, 61 B.R. 878, 890 (Bankr. S.D.N.Y. 1986). If that individual remains silent in the face of the facts established by the other party, the tribunal may then infer that she is unable to deny the other party's allegations. Id.; Chase Manhattan Bank, N.A. v. Frenville, 67 B.R. 858, 862 (Bankr. D.N.J. 1986). Thus while a party is permitted to assert its privilege as a protective shield, it is not allowed to fashion it into a sword to strike out an adverse inference warranted by the circumstances. See United States v. Rylander, 460 U.S. 752, 758 (1983).
So should he take the Fifth in the disciplinary proceedings, Nifong would be risking an adverse inference that could be quite hazardous to his license to practice law in North Carolina.
In a civil case, in which you are a party making an allegation affirmatively (as the plaintiff or a cross-claimant, or when making an affirmative defense) you cannot plead the 5th. It is unfair to go after someone and then when they try to get info from you, tell them that you won't talk.
However, that is different than a bar proceeding. A bar proceeding, or any other administrative hearing at which your right to something granted by the state is at stake, was held (I believe it was in the 70's, so all your authorities before then would be bad law, and an attorney would be fired for citing them) to be the type of proceeding protected by the 5th Amendment. The seminal case in that genre, in the modern era, came from a bar proceeding, and in that case, the Supreme Court extended the reach of the 5th amendment to include administrative actions where a person might lose a job or license by exerting their constitutional right under the 5th amendment.
This was contrary to existing law, and to the clear intent of the founders regarding the reach of the 5th Amendment. They would have had no trouble with yanking the bar card of a person who pleads the 5th in a criminal or administrative proceeding.
I have won motions to dismiss based on the opposing party pleading the 5th in depositions that I took, so I am familiar with this area of law.