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Attorney-ethics grievants are no longer barred from discussing the substance of their complaints in public, but if they do so, it will be at their own risk. On Oct. 19, the New Jersey Supreme Court struck the present ethics gag rule as an unconstitutional prior restraint of speech and directed that a more tailored rule be drafted — one that would also permit a lawyer to sue over defamatory public comments. The justices found that R. 1:20-9(a), which bars a grievant from discussing alleged attorney infractions until and unless a district ethics committee files a formal complaint, violates the First Amendment because it is not narrow enough to fit a compelling interest. “Protecting the reputations of attorneys and the bar does not justify restricting a grievant’s speech, and, in fact, such restrictions breed resentment rather than respect,” Justice James Zazzali wrote for the Court in R.M. v. Supreme Court of New Jersey, A-89-04. “[We] hold that a grievant is not barred from divulging the fact that he or she filed a grievance, the content of that grievance, and the result of the process.” However, in directing its Professional Responsibility Rules Committee to draft a revised rule, the Court suggested putting a qualifier on the absolute immunity that traditionally attaches to statements made in the course of ethics proceedings. Grievants “are not immune for statements made outside the context of a disciplinary matter, such as to the media or in another public forum,” Zazzali said. “Accordingly, grievants who falsely smear an attorney in public do so at their peril and may face defamation actions in appropriate cases.” The ruling will apply prospectively and to cases currently under investigation but not to cases disposed of without formal complaints under the existing rule. The State Bar Association, which had opposed toying with R. 1:20-9(a), was quick to denounce the R.M. ruling. “The elimination of confidentiality will mean that information regarding hundreds of groundless grievances filed each year may now be disclosed,” State Bar President Stuart Hoberman said in a statement Thursday. “It will not matter that the lawyers involved are entirely innocent of the charges, the public airing of the allegations may be sufficiently damaging to reputations.” He said the ruling may result in fewer lawyers agreeing to participate in diversionary programs, opting instead to fight aggressively the accusations. “This will harm the bar, add to the committees’ caseload and decrease efficiency within the disciplinary system,” said Hoberman, of Woodbridge’s Wilentz, Goldman & Spitzer. The State Bar, along with the Office of Attorney Ethics, had argued amicus in R.M. that the existing rule protects the reputations of lawyers who are unfairly accused of wrongdoing, encourages those who do commit infractions to agree to diversionary disciplinary actions and preserves the integrity of the disciplinary system. The case stemmed from an ethics grievance that Randee Massler, a former Warren Township resident, lodged against Michelle D’Onofrio, of DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer in Warren, N.J., her divorce attorney, arising from a fee dispute. The District XIII Ethics Committee resolved the matter by an “agreement in lieu of discipline” — a sort of plea bargain that admits ethics breaches but averts the filing of a formal complaint and its attendant publicity. Massler, appearing one day in Warren municipal court to resolve her son’s traffic tickets and seeing that D’Onofrio was the municipal prosecutor, wanted to tell the judge about the ethics case but felt constrained by the gag rule. She then filed the present suit, attacking the rule as an unconstitutional prior restraint. In March 2004, the Supreme Court took the unusual step of directly certifying the case for review and, at the same time, asked the Professional Responsibility Rules Committee to look into whether the gag rule should be amended. The committee reported back last December, recommending that the gag on grievants be removed at the conclusion of an ethics investigation, regardless of the outcome, and that in exchange, grievants be stripped of immunity from civil suit. “A consensus emerged that it was reasonable and lawful to impose limited confidentiality restrictions on the parties to avoid impeding the integrity of an on-going ethics investigation,” PRRC chairman Stewart Pollock wrote to the Court. “A majority of the committee believed that once the investigation has been completed, the confidentiality restrictions should be lifted.” But the committee also concluded that, as a quid pro quo, the Court should amend R. 1:20-7[f], which presently gives absolute immunity from suit to grievants in ethics matters, clients in fee arbitration cases and witnesses and potential witnesses in both ethics and fee matters for all communications. In a concurring opinion last Wednesday, Chief Justice Deborah Poritz, joined by Justices Virginia Long, Barry Albin and John Wallace Jr., said the immunity issue was not properly before the Court and so should not be addressed. But Zazzali, in a separate concurrence joined by Justices Jaynee LaVecchia and Roberto Rivera-Soto, said the immunity provisions should be addressed in the committee’s review of R. 1:20-9(a). REPUTATION AS CURRENCY Zazzali, in his majority opinion, did not give short shrift to the State Bar’s expressed concerns about potential damage to lawyers’ good names. A lawyer’s reputation “is his or her currency,” he said, observing that “even the finest lawyers are bound to draw the ire of clients who are dissatisfied.” But that aside, he said, the gag rule does not pass First Amendment muster. “Even if safeguarding the good repute of lawyers was sufficiently compelling, Rule 1:20-9 is not narrowly tailored because it sweeps in far more speech than is necessary to achieve that objective,” he wrote, citing New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Zazzali also cited First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), which holds that to sustain government proscription of making a truthful statement, the state has the burden of proof to demonstrate that the ban furthers a compelling interest. The same principle led Zazzali to dismiss the Bar’s argument about the value of diverting attorneys who commit minor infractions into alternate programs and encouraging those lawyers to cooperate with ethics officials. “The goal of the disciplinary system — protecting the public from unethical attorneys — is not served by suppressing accurate statements about actual misconduct, even if minor,” he said. Lastly, Zazzali rejected the argument that lifting confidentiality at the early stages of an investigation would harm the integrity of the process, saying, “Investigations can be adequately protected by less restrictive means than curtailing free expression.” Zazzali noted that in New Jersey more than 70 professions are subject to regulation, but only people who file ethics charges against attorneys are barred from discussing their grievances. “Ultimately, First Amendment rights, the public interest and the concerns of grievants require that we adjust the scope of confidentiality to allow for greater public scrutiny,” Zazzali said. “Although public confidence may be shaken when an attorney commits a wrongful act, that confidence is renewed when the wrong is appropriately addressed and remedied. To accomplish that goal, citizens must be able to observe the disciplinary process unfold at the earliest possible stage.” The Court did rule that if a district ethics committee recommends diversion, the fact that an attorney admitted to minor misconduct and accepted diversion may be made public, but the contents will be kept confidential. Zazzali said that applying the new rule retroactively would be unfair since it would “impose an undue burden on participants who justifiably relied on the old confidentiality rule.” Massler’s lawyer, Montclair, N.J., solo Richard Gutman, who argued the case to the Court last May, says the ruling correctly balances free speech with protection of lawyers’ reputations, since it will result in a qualified immunity. “Now she is able to say that there was a complaint against D’Onofrio,” he says. “But she can only talk about so much. Grievants can still face defamation claims if they go too far.” D’Onofrio acknowledges that Massler filed an ethics grievance against her that was disposed of without a formal complaint, but she says she has no comment about the Court’s ruling.

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