source: Caselaw Access Project

author: Mr. Justice Rehnquist

license: Public Domain

text:
    INTERNATIONAL TELEPHONE & TELEGRAPH CORP., COMMUNICATIONS EQUIPMENT & SYSTEMS DIVISION v. LOCAL 134, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, et al.
    No. 73-1313.
    Argued November 19, 1974—
    Decided January 14, 1975

      Rehnquist, J., delivered the opinion for a unanimous Court.

      Matthew E. Murray argued the cause for petitioner. With him on the brief was John D. O’Brien.

      Robert E. Fitzgerald, Jr., argued the cause for respondent Local 134, International Brotherhood of Electrical Workers. With him on the brief was Edward J. Calihan, Jr. Norton J. Come argued the cause for respondent National Labor Relations Board in support of petitioner.. With him on the brief were Solicitor General Bork, Peter G. Nash, John S. Irving, and Patrick Hardin. Charles V. Koons, Irving M. Friedman, and Harold A. Katz filed a brief for respondent Communications Workers of America in support of petitioner.
   Mr. Justice Rehnquist

delivered the opinion of the Court.

In 1947 Congress responded to the labor unrest caused by jurisdictional disputes by adding § 8 (b) (4) (D) to the National Labor Relations Act, which made it an unfair labor practice for a labor organization to induce the employees of any employer to strike in the hopes of forcing an employer to assign particular work to employees in a particular labor organization. In the belief that resolution of jurisdictional disputes was more important to industrial peace than the imposition of unfair labor practice sanctions, NLRB v. Radio Engineers, 364 U. S. 573, 576-577 (1961) (hereinafter CBS), Congress at the same time enacted § 10 (k), 29 U. S. C. § 160 (k), to induce unions to settle their differences without awaiting unfair labor practice proceedings and enforcement of Board orders by courts of appeals.

One year earlier Congress had responded to the many expressed concerns for fairness and regularity in the administrative process summarized in Wong Yang Sung v. McGrath, 339 U. S. 33, 36-41 (1950), by enacting the Administrative Procedure Act (Act). Section 5 of that Act, now 5 U. S. C. § 554, establishes requirements governing certain agency proceedings that come within the Act’s definition of “adjudication.” We granted certiorari to the Court of Appeals for the Seventh Circuit in this case, 416 U. S. 981 (1974), to review its conclusion that 5 U. S. C. § 554 applied to a § 10 (k) proceeding conducted by the Board, 486 F. 2d 863 (1973). Another Court of Appeals had decided a short time earlier that such a Board proceeding was not subject to § 554, Bricklayers v. NLRB, 155 U. S. App. D. C. 47, 475 F. 2d 1316 (1973).

The case now before us arose out of a jurisdictional dispute between respondent Local 134 of the International Brotherhood of Electrical Workers (IBEW) (hereafter respondent) and the Communications Workers of America (CWA) over whose members would perform certain telephone installation work in Cook County, Ill. Petitioner International Telephone & Telegraph Corp., which had a nationwide collective-bargaining agreement with the CWA, had established a communications equipment and systems division to sell and install private telephone systems. In 1970 petitioner entered into a contract with the village of Elk Grove, Ill., for the installation and sale of a switching system and related telephone and circuitry work. Since employees of the Illinois Bell Telephone Co., who were members of respondent, had already run trunklines from the local operating telephone system to the Administrative Office of the village, petitioner’s contract covered only the remaining two stages necessary to complete installation of the-system. First the telephone cable had to be routed from the telephone room in the basement to the telephone instruments in particular rooms and offices by a process known as “pulling cable”; petitioner subcontracted this work to the C. A. Riley Electric Construction Co., whose employees are represented by respondent. Second, by a process known as “terminating the cable,” the cable would be connected to the telephone instruments. Petitioner planned to have its own technicians, who were represented by the CWA, perform this work.

C. A. Riley had hoped to perform the terminating work and inquired of petitioner’s supervisor whether that was possible. The supervisor informed Riley of petitioner’s plan to have its own employees do the work, and Riley told the supervisor that petitioner’s representatives had better meet with the business agent of respondent. On two occasions petitioner’s representatives met with the union business agent, who told them that respondent installed all telephone equipment in Cook County and that CWA members would install no telephone equipment in Cook County. On the second occasion the respondent’s business agent was quite explicit: “We’d better get that work or there will be trouble.”

When CWA employees appeared at the jobsite on December 3, 1970, to begin their portion of the work, all of respondent’s members left their jobs. That afternoon a representative of the village of Elk Grove met with petitioner’s regional sales manager, and they agreed to pull petitioner’s employees off the job temporarily. Representatives of respondent were informed, and all Local 134 employees thereafter returned to work.

On December 3, 1970, petitioner filed a charge alleging that respondent had violated § 8 (b)(4)(D) of the National Labor Relations Act, 29 U. S. C. § 158 (b)(4)(D). The Board’s Regional Director found reasonable cause to believe that the charge had merit and proceeded in accordance with the language of § 10 (k):

“Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 158 (b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.” 29 U. S. C. § 160 (k).

Respondent was notified that a hearing would be conducted by a hearing officers upon the dispute alleged in the charge, and the hearing was held on March 12, 15, and 17, 1971, with Stephen S. Schulson, an attorney in the regional office, presiding. All parties appeared at the hearing and were given full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. In accordance with NLRB regulations, the record was transmitted to the Board for decision without any recommendation from the hearing officer. The Board received briefs from petitioner, respondent, and the CWA, and concluded that employees represented by the CWA were entitled to perform the work in dispute. 191 N. L. R. B. 828 (1971). On August 30, 1971, respondent notified the Regional Director that it would not comply with the Board’s 110 (k) determination. The Regional Director, on behalf of the Board’s General Counsel, then issued a complaint upon the § 8 (b) (4) (D) unfair labor practice charge that had been held in abeyance pending the attempt to resolve the dispute pursuant to the § 10 (k) proceeding. At the hearing before a trial examiner, the General Counsel was represented by the same attorney who had presided over the compilation of testimony for the Board in the § 10 (k) proceeding. The trial examiner concluded that respondent had violated § 8 (b)(4)(D) and he recommended that it be ordered to cease its unlawful conduct; exceptions were filed with the Board which it overruled in ordering respondent to cease and desist from its unlawful conduct. 197 N. L. R. B. 879 (1972).

Respondent filed a petition to review and set aside the Board’s order in the Court of Appeals for the Seventh Circuit, and the Board filed a cross-application for enforcement of its order. The Court of Appeals found respondent’s conduct to be “the very activity § 8 (b)(4) (D) was intended to prohibit,” 486 F. 2d, at 866, but-refused to enforce the Board’s order because it decided that the Board had not complied with the Act, 5 U. S. C. § 554. The court was under the impression that the parties had “admitted that § 554 applies to § 10 (k) hearings,” 486 F. 2d, at 867, and regarded the participation by Schulson in both proceedings as a violation of 5 U. S. C. § 554 (d), which prohibits commingling prosecutorial and adjudicatory functions. See n. 12, supra. Even though the Board had argued that the § 10 (k) proceeding “was without binding effect on anyone” so that “it was not improper for the same person to perform the functions of hearing officer and subsequently prosecute an unfair labor practice charge based upon the evidence adduced at that hearing,” the Court of Appeals relied upon this Court’s opinion in NLRB v. Plasterers’ Union, 404 U. S. 116 (1971), to support its conclusion that “the hearing officer’s rulings at the § 10 (k) hearing largely determine what evidence the Board will have to consider at the Unfair Labor Practice Hearing . . . 486 F. 2d, at 866-867. With that perspective, the Court of Appeals found the attorney’s participation to be “plainly inconsistent with both the spirit and the letter of the Act.” Id., at 868.

I

To determine whether § 554 governs proceedings conducted under § 10 (k) of the National Labor Relations Act necessitates some understanding of both statutory provisions which, as noted above, were enacted within a year of each other. The Administrative Procedure Act was aptly described in Wong Yang Sung, supra, as “a new, basic and comprehensive regulation of procedures in many agencies,” 339 U. S., at 36. The Court there further observed that the Act “contains many compromises and generalities and, no doubt, some ambiguities.” Id., at 40-41. Because it was designed to regulate administrative proceedings throughout a wide spectrum of agency activities, its language is necessarily abstract in many places. The more we may know about the particular agency proceeding to which the Act is sought to be applied, the better we will be able to apply it.

The events leading up to the enactment of §§8 (b) (4) (D) and 10 (k) have been recounted by this Court in CBS, supra, and Plasterers’ Union, supra, and need not here be reviewed in detail. Congress made the judgment “that it is more important to industrial peace that jurisdictional disputes be settled permanently than it is that unfair labor practice sanctions for jurisdictional strikes be imposed upon unions.” CBS, 364 U. S., at 577. Voluntary and therefore prompt resolution of such jurisdictional disputes is encouraged both by the 10-day grace period following notice of the filing of an unfair labor practice charge, and by the dismissal of such a charge if the union complies with the Board's adverse § 10 (k) determination. 29 CFR § 101.36.

To effectuate the congressional objective of prompt resolution of jurisdictional disputes, almost from the date of the enactment of § 10 (k), the Board has applied procedures to proceedings under that section that are quite different from those of a proceeding under § 8 (b) (4) (D). The § 10 (k) hearing is described in the Board’s regulations:

“If the parties have not adjusted the dispute or agreed upon methods of voluntary adjustment, a hearing, usually open to the public, is held before a hearing officer. The hearing is nonadversary in character, and the primary interest of the hearing officer is to insure that the record contains as full a statement of the pertinent facts as may be necessary for a determination of the issues by the Board. All parties are afforded full opportunity to present their respective positions and to produce evidence in support of their contentions. The parties are permitted to argue orally on the record before the hearing officer. At the close of the hearing, the case is transmitted to the Board for decision. The hearing officer prepares an analysis of the issues and the evidence, but makes no recommendations in regard to resolution of the dispute.” 29 CFR § 101.34.

Streamlined procedures were both designed and justified because “the decision in the proceedings under Section 10 (k) is a preliminary administrative, determination made for the purpose of attempting to resolve a dispute within the meaning of that section; the. unfair labor practice itself is litigated at a subsequent hearing before a Trial Examiner in the event the dispute remains unresolved.” National Union of Marine Cooks & Stewards (Irwin-Lyons Lumber Co.), 83 N. L. R. B. 341 (1949).

The Board concluded from this analysis of the nature of the § 10 (k) proceeding that the provisions of the Act governing adjudications were not applicable. While an agency’s interpretation of the Act may not be entitled to the same weight as the agency’s interpretation of its own substantive mandate, see United States v. Florida East Coast R. Co., 410 U. S. 224, 236 n. 6 (1973), its characterization of its own proceeding is entitled to weight, and that characterization may in turn have relevance in determining the applicability of the Act. •

II

The question which we must decide here is whether the § 10 (k) determination is an “adjudication” governed by the Act, 5 U. S. C. § 554. The Court of Appeals did not consider in any detail whether § 554 governs § 10 (k) proceedings since it was under the impression that the parties had conceded the general applicability of this section to such hearings. 486 F. 2d, at 867. Petitioner and the Board contend that the Court of Appeals was mistaken with respect to any such concession, and state that they argued both in their principal briefs and in their petitions for rehearing that § 554 was not applicable. Respondent acknowledges that no such concession was made, and we therefore address the issue on its merits.

If one were to start with the proposition that all administrative action falls into one of two categories, rule-making or adjudication, the § 10 (k) determination certainly is closer to the latter than to the former. But such light as we have on the intention of Congress when it enacted the Act does not indicate that this is a sound starting point. Knowledgeable authorities in this field observed shortly after passage of the Act that “certain types of agency action are neither rule making nor adjudication.” Ginnane, “Rule Making,” “Adjudication” and Exemptions Under the Administrative Procedure Act, 95 U. Pa. L. Rev. 621, 633 (1947); Netterville, The Administrative Procedure Act: A Study in Interpretation, 20 Geo. Wash. L. Rev. 1, 33 (1951); cf. Attorney General’s Manual on the Administrative Procedure Act 40 (1947).

Section 554 applies “in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing,” and 5 U. S. C. § 551 (7), defines “adjudication” as “agency-process for the formulation of an order”; “order” is in turn defined as “the whole or a part of a final disposition ... of an agency in a matter other than rule making but including licensing/’ 5 U. S. C. § 551 (6). While one might argue that an intermediate proceeding within an agency is necessarily a “part” of a “final order,” we think a sounder interpretation of the language Congress used is that the phrase “whole or a part” refers to components of that which is itself the final disposition required by the definition of “order” in § 551 (6). Intermediate proceedings within an agency may be subject to the provisions of § 554, however, by virtue of the fact that they are “agency process for the formulation of an order” rather than because their product is a “part” of the final disposition. Thus if the Board’s § 10 (k) determination is itself a “final disposition” of a Board proceeding or is “agency process for the formulation” of an order in a resulting § 8(b) (4) (D) proceeding, then the § 10 (k) proceeding is governed by 5 U. S. C. § 554.

In a tautological sense, of course, the Board’s determination in a § 10 (k) proceeding is a “final disposition” of that proceeding, but we think that when Congress defined “order” in terms of a “final disposition,” it required that “final disposition” to have some determinate consequences for the party to the proceeding. The Board does not order anybody to do anything at the conclusion of a § 10 (k) proceeding. As the Attorney General’s Manual on the Administrative Procedure Act 40 (1947) observed: “[I]nvestigatory proceedings, no matter how formal, which do not lead to the issuance of an order containing the element of final disposition as required by the definition, do not constitute adjudication.” This Court noted in Plasterers’ Union, 404 U. S., at 126, that “the § 10 (k) decision standing alone, binds no one.” We conclude, therefore, that the § 10 (k) determination is not itself a “final disposition” within the meaning of “order” and “adjudication” in 5 U. S. C. §§ 551 (6), (7).

Respondent’s principal argument for affirmance of this case rests on the contention that although the § 10 (k) determination may not itself be a “final disposition,” and therefore an “order,” it is “agency process for the formulation” of the ultimate § 8 (b) (4) (D) order that the Board may issue.

There are undoubtedly important practical consequences in the § 8 (b) (4) (D) proceeding that result from the Board’s determination in the § 10 (k) proceeding. These were described in the following language in Plasterers’ Union, supra, at 126-127:

“[T]he impact of the § 10 (k) decision is felt in the § 8 (b) (4) (D) hearing because for all practical purposes the Board’s award determines who will prevail in the unfair labor practice proceeding. If the picketing union persists in its conduct despite a § 10 (k) decision against it, a § 8 (b) (4) (D) complaint issues and the union will likely be found guilty of an unfair labor practice and be ordered to cease and desist. On the other hand, if that union wins the § 10 (k) decision and the employer does not comply, the employer’s § 8 (b) (4) (D) case evaporates and the charges he filed against the picketing union will be dismissed. Neither the employer nor the employees to whom he has assigned the work are legally bound to observe the § 10 (k) decision, but both will lose their §8 (b)(4)(D) protection against the picketing which may, as it did here, shut down the job. The employer will be under intense pressure, practically, to conform to the Board’s decision. This is the design of the Act; Congress provided no other way to implement the Board’s § 10 (k) decision.” (Footnote omitted.)

But we do not think that such practical consequences alone make the § 10 (k) proceeding related to the § 8 (b) (4) (D) proceeding in a manner that would make the former “agency process” for the formulation of the order in the latter. The prototype of an intermediate proceeding that is “agency process for the formulation of an order,” is a hearing before an administrative law judge who makes findings of fact and conclusions of law, initially decides the case, and whose recommended decision “becomes the decision of the agency ... unless there is an appeal to, or review on motion of, the agency.” 5 U. S. C. § 557 (b). All of the parties to this case, for instance, agree that the § 8 (b) (4) (D) unfair labor practice hearing before the trial examiner (now administrative law judge) was subject to § 554 since it was “agency process for the formulation of an order.”

The relationship between the § 10 (k) proceeding and the § 8 (b)(4)(D) proceeding, however, is quite distinct from the relationship between the hearing before an administrative law judge and ultimate review of his findings and recommendations by the agency. The § 10 (k) proceeding has a life of its own from the time that testimony is taken in the field by a hearing officer until the time the Board, with the record of the testimony before it but with no proposed findings or conclusions or recommendations from the hearing officer, reaches its own determination. The Board’s attention in the § 10 (k) proceeding is not directed to ascertaining whether there is substantial evidence to show that a union has engaged in forbidden conduct with a forbidden objective. Those inquiries are left for the § 8 (b) (4) (D) proceeding. Indeed, the Board’s § 10 (k) determination is not unlike an advisory opinion, since the matter may well end there. If the Board determines that employees of the charged union are entitled to the work, the § 8 (b) (4) (D) charge against it will be dismissed. 29 CFR § 102.91. If the Board determination is adverse to the charged union and the union accedes, the § 8 (b) (4) (D) charge will be dismissed and the General Counsel will not issue a complaint. Ibid. Only if the union indicates that it will not comply with the Board’s determination are further proceedings necessitated, and those proceedings will be under §8 (b)(4)(D), not § 10 (k). As this Court observed in Plasterers’ Union, 4(34 U. S., at 122 n. 10:

“The § 10 (k) determination is not binding as such even on the striking union. If that union continues to picket despite an adverse § 10 (k) decision, the Board must prove the union guilty of a § 8 (b) (4) (D) violation before a cease-and-desist order can issue. The findings and conclusions in a § 10 (k) proceeding are not res judicata on the unfair labor practice issue in the later § 8 (b) (4) (D) determination. International Typographical Union, 125 N. L. R. B. 759, 761 (1959). Both parties may put in new evidence at the § 8 (b) (4) (D) stage, although often, as in the present cases, the parties agree to stipulate the record of the § 10 (k) hearing as a basis for the Board’s determination of the unfair labor practice. Finally, to exercise its powers under § 10 (k), the Board need only find that there is reasonable cause to believe that a § 8 (b) (4) (D) violation has occurred, while in the § 8 (b) (4) (D) proceeding itself the Board must find by a preponderance of the evidence that the picketing union has violated §8 (b)(4)(D). International Typographical Union, supra, at 761 n. 5 (1959).”

In each case it is the agency itself, the National Labor Relations Board, which makes the ultimate determination. The same issues will generally be relevant, the record of the earlier proceeding will be admitted in the later one, 29 CFR § 102.92, and the Board's ruling on the merits of those issues which are common to the two proceedings is likely to be the same in the one as in the other. But the proceedings are nonetheless separate; the same tribunal finally determines each of them.

Were we to adopt respondent’s position that merely because a § 10 (k) determination has a significant practical effect on the § 8 (b) (4) (D) proceeding, it was therefore “agency process for the formulation” of the § 8 (b) (4) (D) order, we might well sweep under the definition of that term numerous ancillary agency proceedings that are distinct from the adjudications on which they have an effect, and which the language of the Act does not appear to have been designed to reach. We therefore decline to adopt that position. We accordingly conclude that a § 10 (k) determination is neither itself a final disposition under the definitional section of the Act, nor is it “agency process for the formulation of an order” within the meaning of that section. Proceedings under § 10 (k) are therefore not governed by the Act, 5 U. S. C. §554.

Although the Board’s § 10 (k) proceedings need not be conducted pursuant to the Act, 5 U. S. C. § 554, the agency remains “free under the Act to accord litigants appearing before it more procedural rights than the Act requires,” Florida East Coast R. Co., 410 U. S., at 236 n. 6. The Board’s procedures are, of course, constrained by the Due Process Clause of the Fifth Amendment, but respondent has raised no contention that attorney Schul-son’s participation in both proceedings approached a constitutional violation.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

       Labor Management Relations Act, 1947, 61 Stat. 141, as amended by the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 542, §8 (b)(4)(D), 29 U. S. C. § 158 (b)(4)(D), presently provides:
      “ (b) It shall be an unfair labor practice for a labor organization or its agents—
      “(4) (i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise, handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is—
      “(D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a particular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board deter.mining the bargaining representative for employees performing such work.”

       Title 29 U. S. C. § 160 (k) provides:
      "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 158 (b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed.”

       60 Stat. 237, as codified by an Act to enact Title 5, United States Code, 80 Stat. 378. Slight' modifications in the Act sections under consideration in this case were made at the time of codification, but no substantive changes were intended. H. R. Rep. No. 901, 89th Cong,, 1st Sess., 3 (1965); S. Rep. No. 1380, 89th Cong., 2d Sess., 18 (1966).

       The division was organized to take advantage of a ruling by the Federal Communications Commission that private telephone systems could be interconnected with an operating telephone company system. Use of the Carterfone Device in Message Toll Telephone Service, 13 F. C. C. 2d 420 (1968).

       197 N. L. R. B. 879, 881 (1972).

       The respondent’s business agent had been notified the previous evening that petitioner’s employees would begin their work on December 3. When petitioner’s two employees reported to the basement telephone room for work, two of respondent’s members, who were .employed by the Illinois Bell Telephone Co., packed up their tools and left because they would not work with CWA members. Respondent’s steward entered the room and demanded to see petitioner’s employees’ union cards. When they could not produce Local 134 membership cards, the steward announced, “I can’t work here” or “we can’t work here.” Ibid. After this comment, four or five employees of the Johnson Electric Co., who also were members of Local 134, drifted away. At a coffee break a few moments later, the steward told all the assembled members of Local 134 that he was going home because he did not want to work with “nonunion” men. The other Local 134 members also left the jobsite at that time, and none worked on the job for the rest of the day.

       Petitioner's employees remained off the job until December 21, at which time they returned and performed the terminating work. Respondent’s members, who had worked on the project as employees of Riley, Illinois Bell, and the Johnson Electric Co., had completed their work by December 21 so that no second confrontation occurred.

       The Board’s regulations provided that a “hearing officer” is “the agent of the Board conducting the hearing in a proceeding under section 9 or in a dispute proceeding under section 10 (k) of the act.” 29 CFR § 102.6 (1971). A hearing officer “normally is an attorney or field examiner attached to the regional office but may be another qualified official.” 29 CFR § 101.20(c). The “hearing officer” is to be distinguished from a “trial examiner,” who presides over unfair labor practice proceedings. 29 CFR § 102.6. The Board’s current regulation is identical to the regulation in force at the time of the • § 10 (k) proceeding of the present case except that the term “trial examiner” has been changed to “administrative law judge,” 29 CFR §102.6 (1974). See 37 Fed. Reg. 16787 (1972).

       The Board’s regulations, 29 CFR §101.34, require the hearing officer to transmit the record to the Board but provide that he shall make "no recommendations in regard to resolution of the dispute.”

       Exception 16 brought to the Board’s attention the failure of the trial examiner to address respondent’s argument that the Act had been violated by the participation of attorney Schulson in both the § 10 (k) and § 8 (b) (4) (D) proceedings. Since the issue of the applicability of the Act was presented to the Board, the Court of Appeals was entitled to consider the objection, and so are we. 29 U. S. C. §§ 160 (e)-(f).

        Ibid.

       Title 5 U. S. C. § 554 provides:
      “(a) This section applies, according to the provisions thereof, in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing, except to the extent that there is involved—
      “(1) a matter subject to a subsequent trial of the law and the facts de novo in a court;
      “(2) the selection or tenure of an employee, except a hearing examiner appointed under section 3105 of this title;
      “(3) proceedings in which decisions rest solely on inspections, tests, or elections;
      “(4) the conduct of military or foreign affairs functions;

        “(5) cases in which an agency is acting as an agent for a court; or “ (6) the certification óf worker representatives.
      “ (b) Persons entitled to notice of an agency hearing shall be timely informed of—
      “(1) the time, place, and nature of the hearings;
      “(2) the legal authority and jurisdiction under which the hearing is to be held; and
      “(3) the matters of fact and law asserted.
      “When private persons are the moving parties, other parties to the proceeding shall give prompt notice of issues controverted in fact or law; and in other instances agencies may by rule require responsive pleading. In fixing the time and place for hearings, due regard shall be had for the convenience and necessity of the parties or their representatives.
      “(c) The agency shall give all interested parties opportunity for—
      “(1) the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and the public interest permit; and
      “(2) to the extent that the parties are unable so to determine a controversy by consent, hearing and decision on notice and in accordance with sections 556 and 557 of this title.
      “(d) The employee who presides at the reception of evidence pursuant to section 556 of this title shall make the recommended decision or initial decision required by section 557 of this title, unless he becomes unavailable to the agency. Except to the extent required for the disposition of ex parte matters as authorized by law, such an employee may not—
      “(1) consult a person or party on a fact in issue, unless on notice and opportunity for all parties to participate; or
      “(2) be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for an agency.
      “An employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case may not, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review pursuant to section 557 of this title, except as witness or counsel in public proceedings. This subsection does not apply—
      “(A) in determining applications for initial licenses;
      “(B) to proceedings involving the validity or application of rates, facilities, or practices of public utilities or carriers; or
      “(C) to the agency or a memher or members of the body comprising the agency.
      “(e) The agency, with like effect as in the case of other orders, and in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty.”

       The Board has adhered consistently to this position. See, e. g., International Longshoremen’s & Warehousemen’s Union (General Ore, Inc.), 124 N. L. R. B. 626, 628-629 (1959):
      “It is well established that Section 8 of the Administrative Procedure Act, which provides for the issuance of the initial decision by the hearing officer, does not apply to a proceeding under Section 10 (k). Under Section 101.30 of the Statements of Procedure and Section 102.80 of the Board’s Rules and Regulations, Series 7, the hearing under Section 10 (k) is nonadversary in character and, according to the procedure adopted therefor, conducted in the same way as a hearing in a representation proceeding. The Board adopted such procedure because the decision under Section 10 (k) is a preliminary administrative determination made for the purpose of attempting to resolve a dispute within the meaning of that section. The unfair labor practice itself is litigated at a subsequent hearing before a Trial Examiner if the dispute remains unresolved. It is to the subsequent adversary proceeding, which leads to a final Board determination, that Section 8 of the Administrative Procedure Act applies. The primary function of the hearing officer, who is acting under the delegation of authority from the Board, in a nonadversary proceeding is to insure that the record contains a full statement of pertinent facts as may be necessary for the determination of the dispute by the Board. The hearing officer makes no recommendations in regard to the resolution of the dispute. While we think it better practice not to assign a Board agent who has previously engaged in the performance of investigative and prosecuting functions for the Agency to act as a hearing officer in the same or in a related ease, we find that the Longshoremen in the instant case was not prejudiced by such assignment. The Longshoremen does not allege that it was denied the opportunity to present evidence in support of its contentions, or that it was prejudiced in any other manner by the conduct of the hearing officer.” (Footnotes omitted.) In General Ore, unlike the present case, the hearing officer had previously represented the General Counsel in proceedings factually related to the § 10 (k) proceeding at which he later presided.

       Tr. of Oral Arg. 20.

       The Board, which did not join with petitioner in seeking review of this case but which is nevertheless a party to the case under this Court’s Rule 21 (4), urges that even if the § 10 (k) proceeding is an “adjudication” under the Act, the language in § 10 (k) directing the Board “to hear and determine the dispute” is not sufficient to bring the proceeding within the language of 5 U. S. C. § 554, which operates in the case of adjudications “required by statute to be determined on the record after opportunity for an agency hearing.” In light of our disposition of the case it is unnecessary to address this . contention.

       The Board’s powers under § 10 (k) depend upon whether there is reasonable cause to believe that §8 (b)(4)(D) has been violated. In the present case the Board reviewed the record compiled by the hearing officer and concluded that the requisite reasonable cause existed. The respondent suggested that certain testimonial evidence was incredible, but the Board observed:
      “In a jurisdictional dispute context, the Board is not charged with finding that a violation did in fact occur, but only that there is reasonable cause to believe that there has been a violation. On this testimony, and without ruling on the credibility of the testimony in issue, we are satisfied that there is reasonable cause to believe that a violation of Section 8 (b) (4) (D) has occurred.” 191 N. L. R. B., at 830 (footnotes omitted).
      By contrast, a union can be found guilty of committing an unfair labor practice only if a violation is established by a preponderance of the evidence. 29 U. S. C. § 160 (c).

       The Board indicates that “[i]t is not general practice to use the same person who hears the Section 10 (k) case to investigate and prosecute the subsequent Section 8 (b) (4) (D) case,” Memorandum for the NLRB 4 n. 4.

       There is a suggestion in the opinion of the Court of Appeals that the Board’s order should not be enforced even if the Act does not govern the § 10 (k) proceeding because the commingling of functions was “incompatible with the accepted norms for the proper administration of justice.” 486 F. 2d 863, 868. Cf. Wong Yang Sung v. McGrath, 339 U. S. 33 (1950). In the present case, however, attorney Schulson prosecuted the case for the General Counsel after he had presided at the § 10 (k) proceeding. Even if it be assumed that his function at the § 10 (k) proceeding was judicial in nature, it is hard to see how this sequence of events would present the danger of commingling which the Court of Appeals saw. The Court of Appeals may have confused “hearing officers” with “trial examiners” or “hearing examiners” (now “administrative law judges”) who are ordinarily required to make recommended decisions, 5 U. S. C. § 557 (b), and who must be appointed pursuant to 5 U. S. C. § 3105. 486 F. 2d, at 867 n. 3.


author: Mr. Chief Justice Burger Me. Justice Stewaet, Mr. Justice White,

text:
    MANESS v. MEYERS, JUDGE
    No. 73-689.
    Argued October 22, 1974
    Decided January 15, 1975
    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. 470. White, J., filed an opinion concurring in the result, post, p. 472.

      William F. Walsh argued the cause for petitioner. With him on the briefs were Stuart M. Nelkin and Michael Anthony Maness pro se.

      Joe B. Dibrell argued the cause for respondent. With him on the briefs were John L. Hill, Attorney General of Texas, Larry F. York, First Assistant Attorney General, and Lonny F. Zwiener, Assistant Attorney General.
   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to decide whether in a state civil proceeding a lawyer may be cited for contempt for advising his client, a party to the litigation, that the client may refuse on Fifth Amendment grounds to produce subpoenaed material.

I

Petitioner is a lawyer. In January 1973 his client was convicted before a Municipal Court in the city of Temple, Texas, of selling seven obscene magazines in violation of a Temple ordinance. Six days later the client, Michael McKelva, was served by a Bell County deputy sheriff with a subpoena duces tecum directing him to produce 52 magazines before the 169th Judicial District Court. The titles of the magazines were given, but no other description was contained in the warrant.

Under the Texas Penal Code upon application by any city attorney the district courts may issue injunctions to prevent illegal distribution of obscene matter. The subpoena here was requested by the Temple City Attorney in order to obtain such an injunction. Besides commanding production of the magazines it ordered petitioner’s client to appear at a hearing on Febrúary 1, 1973, and give testimony.

McKelva appeared represented by petitioner and an associate, Karl A. Maley. Earlier, Maley had filed a written motion to quash the subpoena. The motion claimed, inter alia, that the issuance of the subpoena was merely an attempt to require materials and testimony in violation of McKelva’s constitutional right not to incriminate himself.

At the hearing petitioner orally argued the motion to quash. He, too, contended that the city was attempting, through a civil proceeding, to discover evidence which properly should be discovered, if at all, through criminal process. He freely admitted that the magazines dealt explicitly with acts of a sexual nature, and that they were • “of the same character” as the magazines for distribution of which McKelva previously had been convicted. Thus, he argued, it was quite clear that a “substantial possibility of self-incrimination” existed if McKelva was required to produce the magazines. Petitioner foresaw possible criminal prosecution either under the Temple ordinance again, or under Art. 527 itself.

Although petitioner claimed the Fifth Amendment's protection was available in any proceeding whether civil or criminal, he also urged that under the. circumstances the injunctive proceeding for which the magazines were subpoenaed was quasi-criminal in nature. He noted that it was brought under the Penal Code of Texas and concluded that the city should secure a search warrant, describing with particularity the magazines it desired produced.

The City Attorney responded that the proceeding was purely civil and that “there is no contention on the part of the City or any attempt on the part of the City to get any evidence for any criminal prosecution,” and thus any material produced would not be incriminating. Further, he maintained, because there “are no criminal sanctions ... there will be no evidence that would be incriminating under the rules . . . .”

In reply petitioner drew an analogy to tax cases where, he argued, courts have prohibited the Internal Revenue Service from using subpoenas to discover records which night tend to incriminate taxpayers. Petitioner concluded that the nature of the proceeding in which evidence is sought is irrelevant to the compass of the Fifth Amendment, and that the character of the mate-■ial requested is the only relevant inquiry. He asserted ;hat the sole test is whether production of the material would create a substantial probability of criminal prose-jution for his client. He noted that the City Attorney’s representation that the city is not interested in a criminal prosecution “certainly does not bind for example the County Attorney, or anyone else . . . who might be interested in prosecuting such a case.”

The court then denied the motion to quash and petitioner’s client, McKelva, took the stand. In answer to preliminary questions he gave his name and address and stated that he was the operator of Mike’s News in Temple. He admitted to having been served with the subpoena, but when he was asked whether he had brought the magazines he replied: “[U]nder the advice of Counsel, I refuse to answer on the grounds that it may tend to incriminate me.” The City Attorney then moved the court to instruct the witness to answer, and if he failed to do so to hold him in contempt. The court asked petitioner’s cocounsel what would be a reasonable time to allow for the witness to bring the magazines into court, because the court understood the applicable rule to require time for compliance before a motion for contempt should be entertained. Counsel replied that according to their position no time need be allowed because, in any event, the subpoena would require production of evidence which would tend to incriminate the witness. The court then recessed until the afternoon and instructed the witness to return at that time with the requested magazines. Petitioner’s cocounsel said he understood the instruction.

When the court reconvened, McKelva was recalled, and he responded negatively when the City Attorney asked whether he had made any effort to obtain the subpoenaed magazines. He did, however, acknowledge that he had understood the court's order to bring them. After he indicated that the sole reason for his failure to comply was his belief that if he did so it would entail a substantial possibility of self-incrimination, the City Attorney again moved for a contempt citation. This time the court found McKelva in contempt and stated that the failure to respond would be treated as an admission that the subpoenaed magazines are obscene. Petitioner objected, arguing that a person may not be penalized for asserting a constitutional right by way of making an adverse finding against him. The judge replied that no finding had been made, but in view of petitioner’s admission that the magazines were of the same nature as those for which his client previously had been convicted, there was justification for treating a refusal to produce them as an admission to be considered with other evidence. Petitioner responded that he was obliged to assert that although the other magazines had been held obscene the subpoenaed magazines were not.

After other testimony was heard, McKelva was again recalled and the court asked him if his disobedience was his own decision, or if it was on the advice of counsel. McKelva replied that it was on the advice of counsel, specifically petitioner and Maley. Petitioner then asked his client whether he would produce the magazines if counsel advised him they were not incriminatory. McKelva replied that he would. This made it clear that but for the advice of counsel McKelva would have produced the subpoenaed matter.

After a short recess the court ruled the subpoenaed magazines obscene, and enjoined their continued exhibition and sale. Finally, the court held petitioner and his cocounsel in contempt, as well as their client, and fixed punishment for each of them at 10 days’ confinement and a $200 fine.

The judge noted his reluctance to find the attorneys in contempt, stating this was the first time he had ever done so, but he felt that the attorneys had usurped the authority of the court: “This Court has not been permitted to rule on the admissibility of that evidence. You have ruled on it . . . .” Before the hearing ended, however, petitioner stated that he and his cocounsel had not deliberately and intentionally attempted to frustrate the court. Petitioner felt there was merely a philosophical difference between counsel and the court as to the scope of the Fifth Amendment protection. The court responded that the self-incrimination defense could have been reached either by a motion to suppress the evidence after it had been produced for injunctive purposes, or by an objection to an attempt to introduce it at a criminal trial.

The record shows no indication whatsoever of contumacious conduct on the part of petitioner or his cocoun-sel. The court appears to have been offended, in a strictly legal sense, only by the lawyers’ advice which caused their client to decline on Fifth Amendment grounds to produce subpoenaed material. There is nothing in the record to suggest that petitioner or his cocounsel acted otherwise than in the good-faith belief that if their client produced the materials he would run a substantial risk of self-incrimination.

The day the contempt citation was issued petitioner, on behalf of McKelva, applied to the Supreme Court of Texas for an original writ of habeas corpus. The same day that court denied the application pending further information to complete the record, and then finally denied the writ on February 5, 1973.

On February 8, 1973, petitioner filed an application on behalf of McKelva for a writ of habeas corpus in the United States District Court for the Western District of Texas, Waco Division. However, at 10 a. m. that day the judge who issued the contempt citation ordered McKelva released from custody although he had only served seven of his 10 days. The release was “for good behavior.”

Pursuant to Texas procedure the citation of the attorneys was reviewed by another state district judge, the respondent here, Judge James R. Meyers. A hearing was held on May 11, 1973, with the Texas Attorney General’s office appearing in support of the contempt citation. The parties agreed that the burden of proof was on the Attorney General, and also agreed that the record of the injunction hearing would provide the basis for the court’s decision.

The court noted that it felt that the record supported a finding beyond a reasonable doubt that the client was advised not to bring the materials, and the court was dubious that materials displayed for public sale are protected by the Fifth Amendment. However, the court also stated, “I think it is a very close point.” Counsel for petitioner agreed that the record clearly reflected that petitioner had advised his client that he had a Fifth Amendment privilege on the issue, but claimed that it did not reflect that petitioner had instructed him not to bring the subpoenaed materials.

On October 1, 1973, Judge Meyers affirmed the finding of contempt but changed the penalty to a $500 fine with no confinement.. It is that judgment which is under review here.

Both Texas appellate courts refused to review the judgment. The Texas Court of Criminal Appeals denied petitioner’s motion for leave to file an original application for a writ of habeas corpus, and the Supreme Court of Texas also denied a petition for a writ of habeas corpus. Both courts’ orders were entered October 11. By order of Judge Meyers, personal recognizance bonds of petitioner and Maley were continued in order that Maley could seek a writ of habeas corpus from the United States District Court for the Western District of Texas and petitioner could petition for a writ of certiorari from this Court.

On December 20, 1973, Judge Jack Roberts of the United States District Court for the Western District of Texas, Waco Division, granted Maley’s petition for a . writ of habeas corpus. He noted that, even incorrect orders from courts ordinarily must be obeyed until set aside, but he concluded that McKelva had asserted a valid Fifth Amendment privilege, and therefore neither he nor his lawyer could be held in contempt for asserting that privilege. Since civil and criminal liability under Art. 527 arise from the same act the judge also concluded that the Fifth Amendment applied even in the injunctive action. Indeed, he noted that the leading case of Boyd v. United States, 116 U. S. 616 (1886), involved forfeiture proceedings which, “though they may be civil • in form, are in their nature criminal.” Id., at 634. He held that since Maley was only acting to protect rights guaranteed by the Constitution to his client, “he cannot be held in contempt.”

An appeal has been filed from that judgment and is now pending before the United States Court of Appeals for the Fifth Circuit. On April 15, 1974, we granted the petition for a writ of certiorari, 416 U. S. 934; we are advised that the case is being held pending our decision in this case.

II

The narrow issue in this case is whether a lawyer may be held in contempt for advising his client, during the trial of a civil case, to refuse to produce material demanded by a subpoena duces tecum when the lawyer believes in good faith the material may tend to incriminate his client.

We begin with the basic proposition that all orders and judgments of courts must be complied with promptly. If a person to whom a court directs an order believes that order is incorrect the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal. Persons who make private determinations of the law and refuse to obey an order generally risk criminal contempt even if the order is ultimately ruled incorrect. Howat v. Kansas, 258 U. S. 181, 189-190 (1922); Worden v. Searls, 121 U. S. 14 (1887). The orderly and expeditious administration of justice by the courts requires that “an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings.” United States v. Mine Workers, 330 U. S. 258, 293 (1947). This principle is especially applicable to orders issued during trial. E. g., Illinois v. Allen, 397 U. S. 337 (1970). Such orders must be complied with promptly and completely, for the alternative would be to frustrate and disrupt the progress of the trial with issues collateral to the central questions in litigation. This does not mean, of course, that every ruling by a presiding judge must be accepted in silence. Counsel may object to a ruling. An objection alerts opposing counsel and the court to an issue so that the former may respond and the latter may be fully advised before ruling. United States v. La Franca, 282 U. S. 568, 570 (1931). But, once the court has ruled, counsel and others involved in the action must abide by the ruling and comply with the court’s orders. While claims of error may be preserved in whatever way the applicable rules provide, counsel should neither engage the court in extended discussion once a ruling is made, nor advise a client not to comply. A lawyer who coun-seis his client not to comply with a court order during trial would, first, subject his client to contempt, and in addition, if he persisted the lawyer would be exposed to sanctions for obstructing the trial. Remedies for judicial error may be cumbersome but the injury flowing from an error generally is not irreparable, and orderly processes are imperative to the operation of the adversary system of justice.

When a court during trial orders a witness to reveal information, however, a different situation may be presented. Compliance could cause irreparable injury because appellate courts cannot always “unring the bell” once the information has been released. Subsequent appellate vindication does not necessarily have its ordinary consequence of totally repairing the error. In those situations we have indicated the person to whom such an order is directed has an alternative:

“[W]e have consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court’s order to produce prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal. Cobbledick v. United States, [309 U. S. 323 (1940)]; Alexander v. United States, 201 U. S. 117 (1906); cf. United States v. Blue, 384 U. S. 251 (1966); DiBella v. United States, 369 U. S. 121 (1962); Carroll v. United States, 354 U. S. 394 (1957).” United States v. Ryan, 402 U. S. 530, 532-533 (1971).

This method of achieving precompliance review is particularly appropriate where the Fifth Amendment privilege against self-incrimination is involved. The privilege has ancient roots, see, e. g., Brown v. Walker, 161 U. S. 591, 596-597 (1896); Miranda v. Arizona, 384 U. S. 436, 458-463 (1966); see especially id., at 458 n. 27. This Court has always broadly construed its protection to assure that an individual is not compelled to produce evidence which later may be used against him as an accused in a criminal action. Counselman v. Hitchcock, 142 U. S. 547, 562 (1892); Arndstein v. McCarthy, 254 U. S. 71, 72-73 (1920). The protection does not merely encompass evidence which may lead to criminal conviction, but includes information which would furnish a link in the chain of evidence that could lead to prosecution, as well as evidence which an individual reasonably believes could be used against him in a criminal prosecution. Hoffman v. United States, 341 U. S. 479, 486 (1951). In view of the place this privilege occupies in the Constitution and in our adversary system of justice, as well as the traditional respect for the individual that undergirds the privilege, the procedure described in Ryan seems an eminently reasonable method to allow precom-pliance review.

In the present case the City Attorney argued that if petitioner’s client produced the magazines he was amply protected because in any ensuing criminal action he could always move to suppress, or object on Fifth Amendment grounds to the introduction of the magazines into evidence. Laying to one side possible waiver problems that might arise if the witness followed that course, cf. Rogers v. United States, 340 U. S. 367 (1951), we nevertheless cannot conclude that it would afford adequate protection. Without something more “he would be compelled to surrender the very protection which the privilege is designed to guarantee.” Hoffman v. United States, supra, at 486.

Our views as to the effectiveness of a later objection or motion to suppress do not conflict with United States v. Blue, 384 U. S. 251 (1966). There we said:

“Even if we assume that the Government did acquire incriminating evidence in violation of the Fifth Amendment, Blue would at most be entitled to suppress the evidence and its fruits if they were sought to be used against him at trial.” Id., at 255.

But the crucial distinction between that case and the instant question is that there the Government indeed “did acquire” the information. Blue had turned it over during a civil investigation without asserting the Fifth Amendment privilege. Here, on the contrary, petitioner’s client had not yet delivered the subpoenaed material, and he consistently and vigorously asserted his privilege. Here the “cat” was not yet “out of the bag” and reliance upon a later objection or motion to suppress would “let the cat out” with no assurance whatever of putting it back.

Thus in advising his client to resist and risk a contempt citation, thereby allowing precompliance appellate review of the claim, petitioner counseled a familiar procedure. Although it is clear that noncomplianee risked both an immediate contempt citation and a final criminal contempt judgment against the witness if, on appeal, petitioner’s advice proved to be wrong, the issue here is whether petitioner, as counsel, can be penalized for good-faith advice to claim the' privilege.

It appears that here the trial judge rejected the Fifth Amendment claim primarily because it was raised in a civil and not a criminal case. The City Attorney relied most heavily on that distinction in his argument - in opposition to the motion to quash. Just as vigorously, petitioner contended that the privilege against self-incrimination protected his client regardless of the nature of the proceeding. He said:

“It is very clear that the coverage of the Fifth Amendment is not to be determined by the nature of the proceeding in which it is asserted. The Fifth Amendment applies to all proceedings, to injunctive proceedings, to administrative proceedings, and to criminal proceedings. It applies to interrogation by Police Officers out of Court. It applies across the board. We are not talking about the context of the proceedings in which the privilege against self-incrimination is asserted. We are talking about the character of material that is sought to be taken from the person who is subject to the subpoena.
“... [T]he test in those circumstances is whether there is a substantial probability in requiring the party that is served with the subpoena to produce the evidence, which evidence would entail self-incrimination, and with the production of the magazines for possible use in a criminal prosecution, and we say that this would amount to a violation of the privilege under the Fifth Amendment, and we contend that it most certainly would, and that it must.” App. 13-14.

In overruling the claimed privilege the trial judge seems to have accepted the City Attorney’s contention that the claim is not available in a civil proceeding. We disagree.

In Kastigar v. United States, 406 U. S. 441 (1972), we recently reaffirmed the principle that the privilege against self-incrimination can be asserted “in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory.” Id., at 444; Lefkowitz v. Turley, 414 U. S. 70, 77 (1973); Murphy v. Waterfront Comm’n, 378 U. S. 52, 94 (1964) (White, J., concurring) ; McCarthy v. Arndstein, 266 U. S. 34, 40 (1924); United States v. Saline Bank, 1 Pet. 100 (1828); cf. Gardner v. Broderick, 392 U. S. 273 (1968). The trial judge seems to have proceeded upon the mistaken premise that petitioner’s client was misadvised even to assert the privilege in a civil proceeding, regardless of its ultimate merit. This error explains the severe sanction the court placed— albeit reluctantly — upon petitioner because his advice seemed to have caused the witness’ refusal to obey. Thus the issue is whether in a civil proceeding a lawyer may be held in contempt for counseling a witness in good faith to refuse to produce court-ordered materials on the ground that the materials may tend to incriminate the witness in another proceeding. We hold that on this record petitioner may not be penalized even though his advice caused the witness to disobey the court’s order.

The privilege against compelled self-incrimination would be drained of its meaning if counsel, being lawfully present, as here, could be penalized for advising his client in good faith to assert it. The assertion of a testimonial privilege, as of many other rights, often depends upon legal advice from someone who is trained and skilled in the subject matter, and who may offer a more objective opinion. A layman may not be aware of the precise scope, the nuances, and boundaries of his Fifth Amendment privilege. It is not a self-executing mechanism; it can be affirmatively waived, or lost by not asserting it in a timely fashion. If performance of a lawyer’s duty to advise a client that a privilege is available exposes a lawyer to the threat of contempt for giving honest advice it is hardly debatable that some advocates may lose their zeal for forthrightness and independence.

There is a crucial distinction between citing a recalcitrant witness for contempt, United States v. Ryan, supra, and citing the witness’ lawyer for contempt based only on advice given in good faith to assert the privilege against self-incrimination. The witness, once advised of the right, can choose for himself whether to risk contempt in order to test the privilege before evidence is produced. That decision is, and should be, for the wit-' ness. But, if his lawyer may be punished for advice so given there is a genuine risk that a witness exposed to possible self-incrimination will not be advised of his right. Then the witness may be deprived of the opportunity to decide whether or not to assert the privilege.

An early example of this situation is found in In re Watts, 190 U. S. 1 (1903). There lawyers advised their clients in good faith that state, not federal, courts had bankruptcy jurisdiction over a certain property in the hands of a state receiver. This advice led to a collision between the state and federal courts, and contempt citations for the lawyers. Although this Court held that the lawyers’ advice was substantively incorrect, it refused to allow the federal contempt convictions to stand because there was no evidence the advice was given in bad faith. Id., at 32. Mr. Chief Justice Fuller, speaking .for ,the Court, said:

“In the ordinary case of advice to clients, if an attorney acts in good faith and in the honest belief that his advice is well founded and in the just interests of his client, he cannot be held liable for error in judgment. The preservation of the independence of the bar is too vital to the due administration of justice to allow of the application of any other general rule.” Id., at 29.

We conclude that an advocate is not subject to the penalty of contempt for advising his client, in good faith, to assert the Fifth Amendment privilege against self-incrimination in any proceeding embracing the power to compel testimony. To hold otherwise would deny the constitutional privilege against self-incrimination the means of its own implementation. When a witness is so advised the advice becomes an integral part of the protection accorded the witness by the Fifth Amendment.

Ill

In applying these principles it is important to note what this case does not involve: the claim is not based solely on privacy; this is not a case where state law is clear that a response to compulsory process under protest renders the response inadmissible in any criminal prosecution against the witness; most important, there is no contention here as to lack of good faith or reasonable grounds for assertion of a Fifth Amendment claim.

Both in a pretrial written motion and orally during trial, petitioner cogently stated his reasons for believing the privilege applied:

“In view of the fact that there is this substantial possibility of self-incrimination; in view of the fact that seven other magazines that are of the same character as the . .. . magazines named in the subpoena, that they have provided the basis for past criminal prosecutions; in view of the fact that criminal prosecutions are not only a very definite possibility, they are in fact a pronounced possibility, and so there is little reasonable doubt in these circumstances that the subpoena should be quashed because in fact it seeks to compel the person named in the subpoena to incriminate himself, and, of course, this is prohibited by the Fifth Amendment to the Constitution of the United States.” App. 9-10.

Petitioner stated that the magazines were “of the same character” as magazines for distribution of which his client had recently suffered a criminal conviction. There was therefore, at the very least, a reasonable basis for petitioner to assume that a risk of further criminal prosecution existed. Both sides agree that the record is devoid of evidence of contumacious conduct or any disrespect for the court, cf., e. g., In re Little, 404 U. S. 553, 554-555 (1972). The highly professional tone of the proceeding is revealed by the statements of the judge, and by petitioner’s closing comments to the judge after he had been cited for contempt:

“If it please the Court, I certainly appreciate the Court’s position. I think what we have here is not a situation, and I hope this is correct, where Counsel have deliberately and intentionally attempted to frustrate the Court. I think that rather what we have is where there is a philosophical difference between Counsel for the Defendant and the Court with regard to the applicable law as to self-inerimi-nation and the production of evidence in a civil case.” App. 32.

On this record, with no state statute or rule guaranteeing a privilege or assuring that at a later criminal prosecution the compelled magazines would be inadmissible, it appears that there was no avenue other than assertion of the privilege, with the risk of contempt, that would have provided assurance of appellate review in advance of surrendering the magazines. We are satisfied that petitioner properly performed his duties as an advocate here, and he cannot suffer any penalty for performing such duties in good faith.

Reversed.

Me. Justice Stewaet,

with whom Me. Justice Black-mun joins,

concurring in the result.

The Court today holds that the constitutional privilege against compulsory self-incrimination embraces the right of a testifying party to the unfettered advice of counsel in a civil proceeding. As the Court puts the matter, a “layman may not be aware of the precise scope, the nuances, and boundaries of his Fifth Amendment privilege. It is not a self-executing mechanism; it can be affirmatively waived, or lost by not asserting it in a timely fashion. ... [I]f his lawyer may be punished for advice so given there is a genuine risk that a witness exposed to possible self-incrimination will not be advised of his right. Then the witness may be deprived of the opportunity to decide whether or not to assert the privilege.” Ante, at 466-467.

The premise underlying the conclusion that the constitutional privilege against compulsory self-incrimination includes the right to the unfettered advice of counsel in civil proceedings must be that there is a constitutional right, also derived from the privilege against compulsory self-incrimination, to some advice of counsel concerning the privilege in the first place. The Court’s rationale thus inexorably implies that counsel must be appointed for any indigent witness, whether or not he is a party, in any proceeding in which his testimony can be compelled. For surely few indigents will be more cognizant than was Maness’ client of the privilege against compulsory self-incrimination, let alone aware of the “nuances” of the privilege. Unless counsel is appointed, these indigents will be deprived, just as surely as Maness’ client would have been had he not been advised by Maness, of the opportunity to decide whether to assert their constitutional privilege. “To hold otherwise would deny the constitutional privilege against self-incrimination the means of its own implementation.” Ante, at 468.

I am unwilling to go that far toward recognizing an unqualified right to appointed counsel in civil proceedings in a case that does not demand it. But I concur in the Court’s judgment upon a wholly different ground.

More than 40 years ago the Court recognized a due process right to retained counsel in civil proceedings. “If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.” Powell v. Alabama, 287 U. S. 45, 69. It requires no expansion of this well-established principle to hold that just as a state court may not arbitrarily prohibit retained counsel’s presence in a courtroom, so too it may not arbitrarily prohibit or punish good-faith advice given by retained counsel. The “right to be heard by counsel” is frustrated equally by denying the right to have counsel present during trial as by preventing counsel, once in the courtroom, from giving good-faith professional advice to his client.

The right to be advised by retained counsel in a civil proceeding does not, of course, guarantee a lawyer absolute immunity for advice he gives to his client. Whether a contempt citation constitutes an arbitrary interference with the constitutionally protected attorney-client relationship depends on both the tenor of the advice and the circumstances under which it is given. It does not depend solely on the nature of the legal issue involved. Advice to invoke a state-recognized testimonial privilege, for example, may be just as essential to the discharge of a lawyer’s responsibility to his client as was Maness’ advice to invoke the constitutional privilege against compulsory self-incrimination.

The Court’s opinion and Mr. Justice White’s concurring opinion fully explain the circumstances that in this case justified Maness’ advice to his client to refuse to comply with the trial judge’s order to produce the subpoenaed material. Under these circumstances Maness did no more than properly perform the conventional service of a lawyer. To punish him for performing his professional duty in good faith would be an arbitrary interference with his client’s right to the presence and advice of retained counsel — and thus a denial of due process of law.

Mr. Justice White,

concurring in the result.

The issue in this case is not simply whether a lawyer may be held in contempt for advising his client to plead the Fifth Amendment. Obviously, put that way, he may not. The issue is whether, after his client’s self-incrimination objection to testifying or complying with a subpoena is overruled and his client is ordered to answer, the lawyer is in contempt of court when he advises the client not to obey the court’s order. I agree with the Court’s judgment that the contempt judgment against the lawyer cannot stand in the circumstances of this case.

Although the proceeding in which he is called is not criminal, it is established that a witness may not be required to answer a question if there is some rational basis for believing that it will incriminate him, at least without at that time being assured that neither it nor its fruits may be used against him. The object of the Amendment “was to insure that a person should not be compelled, when acting as a witness in any investigation, to give testimony which might tend to show that he himself had committed a crime.” Counselman v. Hitchcock, 142 U. S. 547, 562 (1892); McCarthy v. Arndstein, 266 U. S. 34, 40 (1924); Lefkowitz v. Turley, 414 U. S. 70, 77 (1973). In any of these noncriminal contexts, therefore, “a witness protected by the privilege may rightfully refuse to answer unless and until he is protected at least against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case in which he is a defendant.” Id., at 78; Kastigar v. United States, 406 U. S. 441 (1972).

If the witness, having objected on Fifth Amendment grounds, is granted immunity against the use of his testimony and its fruits in a later prosecution, our cases hold that the danger of self-incrimination is removed and the privilege wholly satisfied. The purpose of the relevant part of the Fifth Amendment is to prevent compelled self-incrimination, not to protect private information. Testimony demanded of a witness may be very private ' indeed, but unless it is incriminating and protected by the Amendment or unless protected by one of the evi-dentiary privileges, it must be disclosed. When the objection interposed is that of self-incrimination, a grant of immunity removes any ground for a refusal to answer and for a good-faith suggestion by counsel that the client not answer, however private his information may be. Should the attorney then advise his client not to answer, there should be no barrier to his conviction for contempt.

But what of the case, such as we have here, where the claim of privilege is overruled because the witness has not carried his burden of demonstrating to the satisfaction of the trial judge that the sought-after answer may incriminate him and there is apparently no occasion for an assurance of immunity? It seems to me that in such event the witness is nevertheless protected by a constitutionally imposed use immunity if he answers in response to the order and under threat of contempt. If, contrary to the expectations of the judge but consistent with the claim of the witness and his lawyer, the State later finds the answer or its fruits incriminating and offers either against the witness in a criminal prosecution, the witness has a valid objection to the evidence on the ground that he was coerced by a court order to reveal it and that it is therefore compelled self-incrimination barred from use by the Fifth Amendment.

In Garrity v. New Jersey, 385 U. S. 493 (1967), the State Attorney General summoned police officers to an inquiry into the fixing of traffic tickets. Following warnings that if they did not answer they would be removed from office and that anything they said might be used against them in a criminal proceeding, they were interrogated about the conduct of their official duties. No immunity of any kind was offered or available under state law. The questions were answered and the answers later used over their objections in a conspiracy prosecution of the officers. The Court held that "the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.” Id., at 500. Lefkowitz v. Turley, supra, reaffirmed this holding, 414 U. S., at 79-80, and declared that absent formal immunity protections, "if he is nevertheless compelled to answer, his answers are inadmissible against him in a later criminal prosecution. Bram v. United States, [168 U. S. 532 (1897)]; Boyd v. United States, [116 U. S. 616 (1886)].” Id., at 78.

Given this ultimate immunity from being incriminated by his responses to his interrogation, a refusal to answer should subject the witness to contempt without the necessity of appellate review extending to the merits of the Fifth Amendment claim. If the State makes sufficiently clear that it recognizes this established rule, the attorney would have no business advising his client to disobey the court’s order to answer. But the possibility, much less the reality, of a compelled answer, along with its fruits, being immunized from later use was hardly brought home to this petitioner or to his client. Had the client been granted immunity or had he been advised of its functional equivalent — that although he was not immune from criminal prosecution with respect to the subject matter of his answers, neither his answer nor its fruits could later be used against him, Kastigar v. United States, supra — it may well have been that his choice, and the advice of petitioner, would have been quite different.

As the matter stands, nothing of the sort was clear in this case to either the petitioner or to his client. As far as can be ascertained from this record, the trial judge insisted that petitioner’s client answer without any assur-anee then that the forthcoming answers could not be used to convict him in the event that the judge was wrong about their not being incriminating. I therefore agree that it was error to hold the attorney in contempt for advising his client not to answer. Cf. Lefkowitz v. Turley, supra; Gardner v. Broderick, 392 U. S. 273 (1968); Sanitation Men v. Sanitation Comm’r, 392 U. S. 280 (1968). At the very least, if there were still a live controversy between the State and petitioner’s client, which apparently there is not, the contempt judgment would be vacated arid the client would be given another opportunity to answer, having in mind the controlling constitutional principles. Murphy v. Waterfront Comm’n, 378 U. S. 52, 80 (1964).

       Texas Penal Code, Art. 527 (Supp. 1973), regulates distribution of obscene articles. Generally, it provides criminal penalties for specific acts of distribution. In § 13, however, it provides for an injunction to enforce its other provisions:
      “Sec. 13. The district courts of this State and the judges thereof shall have full power, authority, and jurisdiction, upon application by any district, county, or city attorney within their respective jurisdictions, or the Attorney General to issue any and all proper restraining orders, temporary and permanent injunctions, and any other writs and processes appropriate to carry out and enforce the provisions of this article. Such restraining orders or injunctions may issue to prevent any person from violating any of the provisions of this article. However, no restraining order or injunction shall issue except upon notice to the person sought to be enjoined. Such person shall be entitled to a trial of the issues within one day after joinder' of issue and a decision shall be rendered by the court within two days of the conclusion of the trial. In the event that a final order or judgment of injunction be entered against the person sought to be .enjoined, such final order or judgment shall contain a provision directing the person to surrender to the sheriff of the county in which the action was brought any obscene matter, in his possession and such sheriff shall be directed to seize and destroy such matter.” The entire article was repealed by Acts 1973, 63d Leg., c. 399, § 3 (a), p. 992, effective January 1, 1974. The new law does not seem to ■ have any provision equivalent to § 13.

       The parties stipulated that the conviction had occurred and was then under appeal.

       It appears that the Temple city criminal ordinance dealing with obscenity is substantially identical to the criminal provisions of Art. 527. Texas Penal Code, Art. 527, § 12 (Supp. 1973), provides:
      “Sec. 12. No city, county or other political subdivision may enact any regulation of obscene material which conflicts with the provisions of this Act; however, a city, county, or other political subdivision is authorized to regulate further the means and manner of distribution and exhibition of matter.”
      At the hearing the court took judicial notice of the similarity between Art. 527 and the Temple criminal ordinance. App. 29.

       The correctness of the conclusion as to inferences to be drawn from a witness’ failure to respond is not before us for decision.

       The only question presented here is the validity of the contempt penalty imposed upon the attorney. The validity of the contempt • penalty imposed on petitioner's client is not before us.

       “Art. 1911a. Contempt; power of courts; penalties
      “Penalties for contempt
      “Sec. 2. (a) Every court other than a justice court or municipal court may punish by a fine of not more than $500, or by confinement in the county jail for not more than six months, or both, any person guilty of contempt of the court.
      “(c) Provided, however, an officer of a court held in contempt by a trial court, shall, upon proper motion filed in the offended court, be released upon his own personal recognizance pending a determination of his guilt or innocence by a judge of a district court, other than the offended court. Said judge to be appointed for that purpose by the presiding judge of the Administrative Judicial District wherein the alleged contempt occurred.
      “Confinement to enforce order
      “Sec. 3. Nothing in this Act affects a court’s power to confine a contemner in order to compel him to obey a court order.” Tex. Rev. Civ. Stat., Art. 1911 (Supp. 1974-1975).

       In a case dealing with misconduct of attorneys but decided under the Federal Rules of Criminal Procedure, Mr. Justice Jackson discussed these same elementary propositions:
      “Of course, it is the right of counsel for every litigant to press his claim, even if it appears farfetched and untenable, to obtain the court’s considered ruling. Full enjoyment of that right, with due allowance for the heat of controversy, will be protected by appellate courts when infringed by trial courts. But if the ruling is adverse, it is not counsel’s right to resist or to insult the judge — his right is only respectfully to preserve his point for appeal. During a trial, lawyers must speak, each in his own time and within his allowed time, and with relevance and moderation. These are such obvious matters that we should not remind the bar of them were it not for the misconceptions manifest in this case.” Sacher v. United States, 343 U. S. 1, 9 (1952).

       This case deals only with the privilege against self-incrimination contained in the Fifth Amendment to the Constitution and made applicable to the States by the Fourteenth Amendment. Malloy v. Hogan, 378 U. S. 1 (1964). The constitutional basis for this privilege distinguishes it from other privileges established by state statute or common law such as those arising from the relation of priest and penitent, lawyer and client, physician and patient, and husband and wife. We are not now presented with questions as to the scope of privileges not found in the Constitution.

       Counsel for respondent could cite no Texas statute or case giving assurance that the magazines would be suppressed because they were produced involuntarily so the witness could avoid a contempt citation.

       It is important here that the witness was not granted immunity from prosecution on the basis of any magazines he might produce. Quite the contrary, he was ordered to produce after vulnerability to prosecution had been made only too clear to him. In response to the City Attorney’s assertion that he did not intend to prosecute based on the magazines, petitioner noted that the State or county might still prosecute, supra, at 452, 453, and neither the City Attorney nor the judge disagreed. See n. 9, supra.

      Had the witness been granted formal immunity a different case would be presented; in that event a witness may be compelled to testify. Kastigar v. United States. 406 U. S. 441 (1972). If counsel, in the face of a grant of immunity, advised his client not to testify or produce information, a different question would be presented because the good faith of the attorney would be open to doubt.

       Petitioner also argued, as we noted earlier, that the proceeding was not civil at all but rather was “quasi criminal.” App. 10. He noted that the proceeding was based upon “the provisions of Section 13 of Article 527 of the Texas Penal Code.” Ibid. He viewed the injunctive action as a mere prelude to a criminal prosecution. Thus he contended that the city should have sought the magazines with a search warrant instead of a subpoena duces tecum.

        Id., at 12.

       Petitioner readily concedes that his advice indeed caused his client to disobey the order. When the court gave petitioner’s client a final chance to purge himself of the contempt citation this colloquy took place:
      “THE COURT: Mr. McKelva, you have been adjudged to be in contempt of this Court for having failed to observe a subpoena duces tecum to bring certain matters with you as a witness. In your testimony with reference to why you failed to do this, you first indicated that it was on the advice of Counsel that you were declining to obey the subpoena, and so I want to ask you directly this morning, is your disobedience to this subpoena your own decision, or is it on the advice of Counsel, and if so, what Counsel?
      “A. It is on the advice of Counsel, sir, and Mr. Friedman, Mr. Maley and Mr. Maness.
      “THE COURT: Does either Counsel have any questions that they want to ask this witness?
      “MR. MANESS: Your Honor, I would only like to ask Mr. McKelva, in the event that his Counsel were to advise him that his privileges against self-incrimination were not endangered by producing the . . . magazines in question, whether or not under those circumstances he would produce the magazines?
      “A. I would.” App.27.
      Counsel thus took full responsibility for his client’s acts, as, of course, his duty to his client required.

       Under Texas procedure and the rulings of the trial court in this case the client was undoubtedly entitled to consult with counsel at the times and in the manner he did.

       Mr. Justice Stewart would appear to extend our reasoning far beyond the confines of this case. We do not agree that our reasoning leads ‘‘inexorably” to his conclusion. We have here a case where retained counsel, in a proceeding which he strenuously argued was not civil but quasi-criminal, has been held in contempt for advising his client that he may assert the Fifth Amendment privilege.
      Reliance seems to us misplaced on the statement in Powell v. Alabama, 287 U. S. 45, 69 (1932), that “[i]f in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him . . . such a refusal would be a denial'of a hearing, and, therefore, of due process . . . .” Comments in a criminal case as to the law in a civil case hardly reach the level of constitutional doctrine, if indeed they are any more than dicta. From these dicta it is argued that it as much violates due process to punish an attorney for advising a witness of a privilege as to prevent the attorney from appearing at all; also that a contempt citation may “constitute an arbitrary interference with the constitutionally protected attorney-client relationship,” post, at 472, even where no constitutional privilege is involved. We need not go so far nor traveL such a circuitous route to reach our conclusion here. We are not aware that the Court has ever identified a “constitutionally protected attorney-client” privilege of the scope postulated by Mr. Justice Stewart.

       The American Bar Association Project on Standards for Criminal Justice, Defense Function § 1.6 (Approved Draft 1971) shows the difficulty such a situation would present for a lawyer:
      “[T]he duties of a lawyer to his client are to represent his legitimate interests, and considerations of personal and professional advantage should not influence his advice or performance.”
      The introductory comments note:
      “A lawyer cannot be timorous.in his representation. Courage and • zeal in the defense of his client’s interest are qualities without which one cannot fully perform as an advocate.” Id., at 146.

       Petitioner’s concession that the subpoenaed magazines were of the same character was not an admission they were obscene. His contention seems to have been that they were sufficiently like those for which his client previously had been convicted as to raise the possibility of prosecution, and thus to allow assertion of the Fifth Amendment privilege.

       In view of our disposition of this case upon other grounds we need not, and. do not, decide whether the Fifth Amendment privilege • actually encompasses these magazines.

       We recognize that there may be instances where advice to plead the Fifth Amendment could be given in bad faith, or could be patently frivolous or for purposes of delay, and such instances would present far different issues from those here. See Cole v. United States, 329 F. 2d 437 (CA9), cert. denied, 377 U. S. 954 (1964); United States v. Cioffi, 493 F. 2d 1111, 1119 (CA2), cert. denied, 419 U. S. 917 (1974).