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.
I would also suggest that if a person's job is to acquire certain information, any refusal to disclose such information for Fifth Amendment reasons should be considered a refusal to do one's job.
Defiant, thanks for writing back. If you had read what I wrote a little more carefully, I think you'd see that we actually agree with each other.
I have no quarrel with your observation that when the *plaintiff,* cross-claimant, or proponent of an affirmative defense in a civil action refuses to respond to discovery sought by the opposing party, it is unfair and demands some sort of judicial response to prevent that unfairness. Indeed, well before the Supreme Court case to which you referred but did not identify was decided, the Ninth Circuit had held: "The scales of justice would hardly remain equal in these respects, if a party can assert a claim against another and then be able to block all discovery attempts against him by asserting a Fifth Amendment privilege to any interrogation whatsoever upon his claim. If any prejudice is to come from such a situation, it must, as a matter of basic fairness in the purposes and concepts on which the right of litigation rests, be to the party asserting the claim and not to the one who has been subjected to its assertion. It is the former who has made the election to create an imbalance in the pans of the scales." Lyons v. Johnson, 415 F.2d 540, 542 (9th Cir. 1969), cert. denied, 397 U.S. 1027 (1970).
Furthermore, although you overlooked it, I actually *argued as much* in my original post, when I wrote: "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)."
I also fully understand that dismissal may be warranted under such circumstances. In Missouri (where I have actively practiced law for well over a decade), it is well-settled that several judicially-sanctioned remedial responses are available to deal with these difficult issues. For example, "Missouri courts have long approved the dismissal of a claim by someone who was seeking affirmative relief but refused, on the basis of the Fifth Amendment, to reveal relevant information in discovery." Williams v. Gary Breedlove Constr. Co., 950 S.W.2d 557, 561 (Mo. App. S.D. 1997); see also In re Marriage of Fellers, 789 S.W.2d 153, 155 (Mo. App. E.D. 1990); Geldback Transport, Inc. v. Delay, 443 S.W.2d 120, 121 (Mo. 1969). In Hagenbuch v. Hagenbuch, 730 S.W.2d 269, 271 (Mo. App. E.D. 1987), the Eastern District observed that this doctrine was developed not to punish the Fifth Amendment claimant, but to promote fairness and to prevent the claimant from obtaining an undue advantage.
For these reasons, I am far from surprised that you have won motions to dismiss based on the opposing party pleading the 5th in depositions you took.
Of course, similar considerations apply when a civil *defendant* has invoked the privilege to preclude discovery. In such cases, a trial court may, in the exercise of its discretion, preclude the defendant from later changing his or her position and voluntarily testifying at trial to his benefit regarding the subject matter of the discovery originally sought. Dodson v. Dodson, 904 S.W.2d 3, 5 (Mo. App. W.D. 1995); State ex rel. Pulliam v. Swink, 514 S.W.2d 559, 561 (Mo. banc 1974); see also Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 575-77 (1st Cir. 1989); Meyer v. Second Judicial Dist. Court, 95 Nev. 176, 591 P.2d 259, 262 (Nev. 1979). The same principle applies when a party offers an affidavit to compel a certain result on summary judgment before or after invoking the Fifth Amendment to avoid discovery. In re Edmond, 934 F.2d 1304, 1308 (4th Cir. 1991); United States v. Parcels of Land, 903 F.2d 36, 43 (1st Cir. 1990).
Finally, I am also well aware that several federal courts have gone so far as to hold that when a civil defendant invokes his or her Fifth Amendment privilege to avoid complying with a plaintiff's discovery requests, a trial court has discretion to enter a total preclusion order preventing the defendant from offering into evidence, either at the summary judgment stage or at trial, any information concerning the details of the particular request as to which the privilege was previously asserted by the defendant. See, e.g., Dunkin' Donuts, Inc. v. Taseski, 47 F. Supp. 2d 867, 872-73 & n.3 (E.D. Mich. 1999) (collecting cases); Traficant v. Commissioner, 884 F.2d 258, 265 (6th Cir. 1989); Sec. & Exch. Comm'n v. Cymaticolor Corp., 106 F.R.D. 545, 549-50 (S.D.N.Y. 1985); In re Anthracite Coal Antitrust Litigation, 82 F.R.D. 364, 369-70 (M.D. Pa. 1979). Other federal courts have refused requests for such orders, holding that total preclusion would place too great a burden on the legitimate exercise of a civil defendant's Fifth Amendment privilege. See, e.g., Sec. & Exch. Comm'n v. Graystone Nash, Inc., 25 F.3d 187, 191 (3d Cir. 1994); United States v. Talco Contractors, Inc., 153 F.R.D. 501, 509 (W.D.N.Y. 1994); Sec. & Exch. Comm'n v. Rehtorik, 135 F.R.D. 204, 206 (S.D. Fla. 1991). Commentators have also been sharply divided on the question. Compare Christopher V. Blum, Comment, Self-Incrimination, Preclusion, Practical Effect and Prejudice to Plaintiffs: The Faulty Vision of SEC v. Graystone Nash, Inc., 61 BROOKLYN L.REV. 275 (1995) with Frances S. Fendler, Waive the Fifth or Lose the Case: Total Preclusion Orders and the Civil Defendant's Dilemma, 39 SYRACUSE L.REV. 1161 (1988).
In short, I do not see how we disagree, except as to your rather bold and presumptuous claim that any pre-70's case bearing on Fifth Amendment issues is necessarily "bad law" which would subject me to being "fired for citing" it. (It's not as simplistic as that, and as a fellow lawyer, you know it.)
Furthermore, I think we're also in complete agreement that cases such as McCarthy v. Arndstein, 266 U.S. 34, 40 (1924) (a seminal case in which the Court held that the Fifth Amendment privilege against self-incrimination is properly asserted by parties in civil proceedings, despite the fact that the text of the amendment itself literally refers only to criminal proceedings) and Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) (in which the Court held that a witness' privilege against self-incrimination "not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings") were both contrary "to the clear intent of the founders regarding the reach of the 5th Amendment" as clearly expressed by the words they used. Instead, I agree with Justice Brandeis' opinion in United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153-54 (1923) (noting, in a civil deportation proceeding, that "Silence is often evidence of the most persuasive character.") I simply chose not to address that argument, as I felt existing Supreme Court precedent permitted the drawing of an adverse inference against Nifong if he took the Fifth in the forthcoming disciplinary proceedings.
So are we on the same page now? I certainly hope so!