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In 1994, the state Supreme Court opened lawyer discipline to the public eye but kept grievances confidential until issuance of formal complaints. Last Wednesday, the Court decided to take a look at the gag rule’s constitutionality. The justices certified for review a Mercer County case that challenges the rule, R. 1:20-9, as an unconstitutional prior restraint on free speech and the right to petition for redress of grievances. They also directed the Professional Responsibility Rules Committee to examine the rule and solicit comments. The suit, R.M v. Supreme Court, L-2676-03, asks for an injunction against enforcement of the rule by the Office of Attorney Ethics and the District XIII Ethics Committee. Oral argument on the plaintiff’s motion for summary judgment had been scheduled for April 2. The plaintiff, a resident of Bernards Township, claims that the rule prevents her from airing her grievances about lawyer “Jane Doe,” who is allegedly a public employee. No formal complaint was issued. Doe admitted to minor misconduct after the District XIII ethics chairperson determined there was a reasonable prospect of finding misconduct. Doe escaped discipline in an agreement with the OAE, R.M. alleges. “There are policy arguments for and against confidentiality but if the arguments for are not a compelling state interest and it is not the least restrictive means of achieving the state interest, then it violates the first amendment rights of the person gagged,” says R.M’s attorney, Montclair solo practitioner Richard Gutman. The Court last considered R. 1:20-9 in 2003. The OAE had asked whether the rule should be revised to allow employers to receive notice of grievances against attorneys. The committee said that because disclosure would adversely affect the employer-employee relationship, the decision should be left up to the attorney. The Court accepted that recommendation. This month, the committee published proposed rule changes that would expand the circumstances under which the OAE can disclose a grievance’s pendency, subject matter or status. At present, such disclosure is allowed where the lawyer-respondent has waived confidentiality. The amendment also would allow it where the lawyer has breached confidentiality. Some other states have stricken gag rules as violations of free speech: New Hampshire in Petition of Brooks, 678 A.2d 140 (N.H. 1996); Florida in Doe v. Supreme Court, 734 F. Supp. 981 (S.D. Fla. 1981); and Tennessee in Doe v. Doe, 2004 Tenn. LEXIS 128 (2004). The Tennessee rule was more onerous than New Jersey’s, imposing secrecy until the state Board of Professional Responsibility recommended discipline and making breaches punishable by criminal contempt.

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