Taking the Fifth: Pros and Cons

Many practitioners do not realize, however, that they have some recourse. The law is that while the privilege applies in a civil case, it is not without effect. In fact, if you are in the right situation, you can employ the other side's use of the privilege to great advantage. For example, an appellate court in Illinois has held that a plaintiff could not invoke the privilege against self-incrimination while still maintaining the lawsuit. The trial court's dismissal of the complaint was affirmed in Galante v. Steel City National Bank of Chicago, 384 N.E.2d 57 (1978). Galante was a case of first impression in Illinois and it is instructive with respect to the cases the court reviewed from other jurisdictions. The appellate court held:

[T]hese jurisdictions have overwhelmingly rejected the contention that a plaintiff in a civil action may invoke the Fifth Amendment privilege against self-incrimination while still maintaining the lawsuit … The federal courts which have considered this issue have also rejected a plaintiff's right to maintain a civil action while also asserting the Fifth Amendment privilege in response to a defendant's request for discovery … Although it is true that plaintiffs cannot be forced to involuntarily incriminate themselves, we do not believe they should be permitted to use the Fifth Amendment privilege as both a shield of protection and a sword of attack. Plaintiffs have forced defendants into court. It would be unjust to allow them to prosecute their cause of action and, at the same time, refuse to answer questions, the answers to which may substantially aid defendants or even establish a complete defense. 384 N.E. 2d at 61-62. (Emphasis added.)

Temporary Maintenance and Attorney's Fees

In Sparks v. Sparks, 768 S.W.2d 563 (1989), the Eastern District of the Missouri Court of Appeals held that a wife who invoked the Fifth Amendment privilege was not entitled to the affirmative relief of temporary maintenance and attorney's fees in her divorce action. The striking of her pleading was held to be appropriate relief 'intended to promote fairness and prevent a party from obtaining an advantage from the invocation of the privilege … That she has a right to claim the privilege against self-incrimination so long as she is exposed to possible criminal prosecution is unquestioned. However, invocation of the privilege in a civil case, especially by one seeking affirmative relief from the court, is not without its price … In other words, the constitutional privilege may be used as a shield, but not a sword.' 768 S.W.2d at 565-566.