US SUPREME COURT DECISIONS

A lawyer is not subject to the penalty of contempt for advising his client, during the trial of a civil case, to refuse on Fifth Amendment grounds to produce material demanded by a subpoena duces tecum when the lawyer believes in good faith that the material may tend to incriminate his client. To hold otherwise would deny the constitutional privilege against self-incrimination the means of its own implementation, since, when a witness is so advised the advice becomes an integral part of the protection accorded the witness by the Fifth Amendment. Pp. 419 U. S. 458-470.

(a) That the client in any ensuing criminal action could move to suppress the subpoenaed material after it had been produced does not afford adequate protection, because, without something more, "he would be compelled to surrender the very protection which the privilege is designed to guarantee," Hoffman v. United States, 341 U. S. 479, 341 U. S. 486. United States v. Blue, 384 U. S. 251, distinguished. Pp. 419 U. S. 461-463.

(b) Here, where petitioner lawyer admitted that the allegedly obscene magazines subpoenaed for the purpose of enjoining their distribution were "of the same character" as magazines for distribution of which his client had recently been convicted (so that petitioner had, at the very least, a reasonable basis for assuming that a risk of further criminal prosecution existed), and where there was no assurance under state law that the material could be suppressed and no avenue other than assertion of the privilege, with the risk of contempt, that would have assured appellate review in advance of surrendering the magazines, the advice was given in good faith. Pp. 419 U. S. 468-470.

Reversed.

BURGER, C.J.,delivered the opinion of the Court, in which DOUGLAS, BRENNAN, MARSHALL, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed an opinion concurring in the result, in which BLACKMUN, J., joined, post, p. 419 U. S. 470. WHITE, J., filed an opinion concurring in the result, post, p. 419 U. S. 472. chanrobles.com-red

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