Disciplinary Counsel v. Benson Snaider (2012)

MEMORANDUM OF DECISION RESPONDENT'S CLAIM OF PRIVILEGE AGAINST SELF–INCRIMINATION

FACTS

The respondent, Benson Snaider, was placed on interim suspension effective November 3, 2011.   Respondent admitted that he misused client funds in the approximate amount of $800,000.00.   There is currently a pending criminal matter against the respondent in the Stamford Judicial District concerning his misuse of client funds.

The $800,000 was placed in the respondent's trust account in June of 2005.   Respondent provided, pursuant to a court order, bank statements for his IOLTA account for 2010 and 2011.   Disciplinary Counsel requests IOLTA accounts from 2005 to the present.   The Respondent asserts his Fifth Amendment privilege against self-incrimination as to the additional requests of IOLTA accounts from 2005 to the present.   Disciplinary Counsel asserts there is no Fifth Amendment privilege to the requested accounts.

DISCUSSION

The fifth amendment of the United States constitution states in relevant part:  “No person shall be ․ compelled in any criminal case to be a witness against himself ․” The United States Supreme Court has interpreted the amendment to include the right of a person to assert the privilege to preclude the production of documents.  “[T]he act of producing documents in response to a subpoena may have a compelled testimonial aspect.   We have held that ‘the act of production’ itself may implicitly communicate ‘statements of fact.’   By producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic.”   (Internal quotation marks omitted.)  United States v. Hubbell, 530 U.S. 27, 36–37, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000).   See also Hartford County Sheriffs Dept. Communities Charities Assn. v. Blumenthal, 47 Conn.Sup. 447, 464, 806 A.2d 1158 (2001) (the fifth amendment would apply if “the production of the papers may have an inculpatory use ․ and then, only to a private individual as to the individual's papers”).

As noted in Andersen v. Maryland, 427 U.S. 463, 473–74, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), however, “[a] party is privileged from producing the evidence but not from its production ․ This principle recognizes that the protection afforded by the [s]elf-[i]ncrimination [c]lause of the [f]ifth [a]mendment adheres basically to the person, not to information that may incriminate him ․ Thus, although the [f]ifth [a]mendment may protect an individual from complying with a subpoena for the production of his personal records in his possession because the very act of production may constitute a compulsory authentication of incriminating information ․ a seizure of the same materials by law enforcement officers differs in a crucial respect—the individual against whom the search is directed is not required to aid in the discovery, production, or authentication of incriminating evidence.”   (Citations omitted;  emphasis added;  internal quotation marks omitted.)   See also State v. Iasevoli, 188 Conn. 325, 334, 449 A.2d 996 (1982) (“The privilege against self-incrimination is not violated by the enforcement of a subpoena to obtain documents of an accused in the possession of a third party to whom the subpoena is directed ․ It is not applicable ․ to records or even statements of an accused obtained from another person by legal process.”   [Citations omitted;  internal quotation marks omitted.] )

Furthermore, the required records doctrine provides an exception to the prohibition against the compelled production of documents.   In Shapiro v. United States, 335 U.S. 1, 33, 68 S.Ct. 1375, 92 L.Ed. 1787, reh. denied, 335 U.S. 836, 69 S.Ct. 9, 93 L.Ed. 388 (1948), the United States Supreme Court found that “the privilege which exists as to private papers cannot be maintained in relation 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.”  (Internal quotation marks omitted.)   In order to satisfy the exception, “first, the purposes of the [government's] inquiry must be essentially regulatory;  second, information is to be obtained by requiring the preservation of records of a kind which the regulated party has customarily kept;  and third, the records themselves must have assumed ‘public aspects' which render them at least analogous to public documents.”  (Internal quotation marks omitted.)  Grosso v. United States, 390 U.S. 62, 67–68, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968).

In the present case, disciplinary counsel seeks access to the respondent's IOLTA accounts pursuant to Practice Book § 2–27 and Rules of Professional Conduct 1.15.  Practice Book § 2–27 provides in relevant part:  “(b) Each lawyer ․ maintaining one or more trust accounts as defined in Rule 1.15 of the Rules of Professional Conduct and Section 2–28(b) shall keep records of the maintenance and disposition of all funds of clients ․ held by the lawyer ․ in a fiduciary capacity from the time of receipt to the time of final distribution ․ (c) Such books of accounts and statements of reconciliation, and any other records ․ shall be made available upon request of the statewide grievance committee or its counsel, or the disciplinary counsel for review, examination or audit upon receipt of notice by the statewide grievance committee ․ (d) Each lawyer shall register with the statewide grievance committee ․ the name and address of every financial institution with which the lawyer maintains any account in which the funds of more than one client are kept and the identification number of any such account.   Such registrations will be made on an annual basis ․ The registration forms filed pursuant to this subsection ․ shall not be public;  however, all information obtained by the statewide grievance committee from these forms shall be public except the following:  trust account identification numbers ․ (e) The statewide grievance committee or its counsel may conduct random inspections and audits of accounts maintained pursuant to Rule 1.15 of the Rules of Professional Conduct to determine whether such accounts are in compliance with the Rule and this section.”   Thus, disciplinary counsel is seeking documents which are required to be preserved for regulatory purposes, namely auditing to ensure compliance with the rules of professional conduct.   Moreover, while the actual IOLTA account information is not public, some of the information related to the accounts is public;  this satisfies the third prong of the required records exception.

CONCLUSION

Therefore the Respondent's claim of privilege against self-incrimination is denied.   The production of the respondent's documentation necessary to complete an audit for his IOLTA accounts from 2005 to the present is ordered.   Documents to be provided to the Statewide Grievance Committee on or before May 1, 2012.

Brian T. Fischer, Judge

Fischer, Brian T., J.