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Understanding the Fifth Amendment: Guidance for Lawyers on Advising Clients During Civil Discovery

Posted by Ed McClees | May 27, 2024


The Fifth Amendment to the United States Constitution is a critical protection in the legal system. It ensures that individuals cannot be compelled to incriminate themselves. While most commonly associated with criminal proceedings, the Fifth Amendment may also play a crucial role in civil cases, particularly during the discovery process. As a lawyer, it is imperative to understand when and how to advise your clients to invoke their Fifth Amendment rights to protect themselves effectively. Below we seek to provide some basic guidance on the application of the Fifth Amendment to civil discovery. This is by no means comprehensive, and, as always, it is wise to consult an experienced criminal defense lawyer if you face a situation where a client may need to invoke his or her Fifth Amendment privileges.

The Fifth Amendment in Civil Cases

The Scope of the Fifth Amendment

The Fifth Amendment's protection against self-incrimination applies not only in criminal cases but also in civil proceedings. In Kastigar v. United States, 406 U.S. 441, 444-445 (1972), the United States Supreme Court held that the Fifth Amendment can "be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, and it protects against any disclosures which the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used." Also, while generally the Fifth Amendment privilege against self-incrimination only applies to compelled communications that are testimonial in character, the Court has also held that the act of producing incriminating documents in response to a subpoena may have a compelled testimonial aspect to which the Fifth Amendment privilege applies. See United States v. Holder, 530 U.S. 27, 36 (2000) ("by producing documents in compliance with a subpoena, the witness would admit that the papers existed, were in his possession or control, and were authentic.").

This means that a witness in a civil deposition or at trial can refuse to answer questions if their responses could potentially incriminate them in future criminal proceedings. And in some cases, a civil litigant can even refuse to respond to requests for production. However, the application of this right in civil contexts requires careful consideration.

Balancing Interests

When advising client to invoke their Fifth Amendment rights during civil discovery, lawyers must balance the sometimes dueling interests of protecting their rightsagainst self-incrimination with protecting what is in their best interest for the civil proceeding. While the Fifth Amendment provides a criminal defendant with an absolute right not to be called as a witness, this right does not extend to civil proceedings. And while invoking the Fifth Amendment rights protect against self-incrimination might be wise advice to a client, be aware that invoking it might have implications for the civil case, including potential adverse inferences drawn by the court or jury.

When to Advise Invoking the Fifth Amendment

Assessing the Risk of Criminal Liability

The primary consideration is whether the client's testimony could reasonably lead to criminal liability. This involves a thorough review of the facts, the nature of the questions likely to be posed, and the current status of any related criminal investigations.

Specific Situations

  1. Parallel Criminal Investigations: If there is an ongoing or imminent criminal investigation related to the subject matter of the civil case, the risk of self-incrimination is high. Advising the client to invoke their Fifth Amendment rights is often wise in such scenarios.
  2. Potential for Future Criminal Charges: Even if no charges have been filed, if there is a reasonable basis to believe that the client's testimony could be used to initiate criminal proceedings, invoking the Fifth Amendment is often the best course of action.
  3. Past Criminal Conduct: If the civil case involves matters that could expose past criminal conduct, careful consideration is required to determine whether answering questions might reveal incriminating information.

How to Advise Clients

Educating the Client

Clients must understand the implications of invoking their Fifth Amendment rights. Explain the potential for adverse inferences in the civil case, as well as the protection it offers against self-incrimination in criminal contexts. Make sure they understand that this decision can impact the outcome of their civil case.

There is no magic language that must be used to invoke the Fifth Amendment rights so long as it is a clear invocation of that right. We often simply advice clients to say "on the advise of counsel, I invoke my Fifth Amendment rights and decline to answer the question."

Strategic Use

  • Selective Invocation: In some cases, it might be appropriate to selectively invoke the Fifth Amendment. However, this must be done carefully to avoid waiving the right.
  • Preparation: Thoroughly prepare your client for the deposition. Review potential questions and discuss which ones might necessitate invoking the Fifth Amendment. Practice responses to ensure the client is comfortable and confident.

Legal Procedures

  • Objections: In responding to civil discovery, be prepared to make appropriate objections and instruct your client to invoke the Fifth Amendment where necessary.
  • Court Guidance: In some cases, it may be beneficial to seek a protective order from the court to limit the scope of deposition questions or to clarify the application of the Fifth Amendment in specific instances.


Invoking the Fifth Amendment in civil discovery is a nuanced and strategic decision. As a lawyer, your role is to safeguard your client's rights while navigating the complex interplay between civil and criminal law. By thoroughly assessing the risk of criminal liability, educating your client, and strategically managing the discovery process, you can ensure that your client's Fifth Amendment rights are effectively protected.

By understanding when and how to advise clients on invoking the Fifth Amendment, you can provide them with the best possible defense in both their civil and potential criminal cases.

We have experience navigating clients and lawyers through this complex process. Please call us if you need help regarding how to advise your clients in responding to civil discovery.

About the Author

Ed McClees

Ed is a criminal trial lawyer who is Board Certified in Criminal Law by the Texas Board of Legal Specialization.  He is a former Harris County District Attorney where he served as chief of the Organized Crime Section, prosecuting cases involving complex organized criminal activities, including Fr...

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