*1
сourt to abide
jury
the verdict in the Law
If
Division.
decides that there
co-employment,
Compensation
was
Court
judgment
should amend the
to reflect a modified award. See
Bank,
(1954)
Estelle
Board
Educ.
Red
For reversal and remandment — Chief Justice WILENTZ CLIFFORD, HANDLER, POLLOCK, and Justices O’HERN and GARIBALDI — 6.
For affirmance — None. THE
IN MATTER OF THE HEARING ON IMMUNITY FOR ETHICS COMPLAINANTS.
Argued Decided July October 1984. 1 983 *2 III, Jersey Brennan, argued the cause for New J. William Bar Association. State argued pro the cause se.
August C. Michaelis pro argued the cause se. Martin Sarver Jersey, Kimmelman, Attorney General New I. Irwin Kimmelman, attorney; (Irwin pro I. argued the cause se Cole, Attorney Assistant and Michael R. Irwin I. Kimmelman General, counsel; Haria, Attorney General, Dеputy William brief). Advocate, argued pro cause Rodriguez, Public Joseph H. Di attorney; Shapiro, E. Richard (Joseph Rodriguez, H. se brief). rector, Advocacy, on the letter of Public Interest Division Director, argued A. Coolbaugh, Colette Assistant the cause for Division Ethics and Professional Services. opinion the Court was delivered
WILENTZ, C.J. January 31, 1984, adopted
On the Court various rules con- cerning attorney discipline. provides One of those rules any grievant in an matter or in a client fee arbitration case shall be absolutely testimony immune from suit for given communications or made in connection with the fee arbi- proceeding. effectively tration or ethics would bar suits, instance, prose- libel and slander as well as malicious cution suits. The text Rule’s follows: (b) *3 for and Clients. Grievants Immunity in Grievants and clients in arbitration shall matters fee cases be legal immune from whether or for all absolutely suit, equitable nature, Committees, communications to Fee thе Director, Board, the or to Committees, given staff and or fee in ethics arbitration appropriate testimony proceed
ings. This shall not extend to or distribution of immunity any publication grievant 11(b) R.1:20-10.[1] client information that violates by [R. ]. 1:20 — Court, seriously Rule, The divided on wisdom the of the that, Commentary, decided instead of official an it would issue opinion opinion. what to majority dissenting amounts Ketchum, history goes The Rule’s modern 18 back to Toft 141, 280, den., 887, cert. 782 N.J. 350 U.S. L.Ed. S.Ct. (1955). Court, vote, by complainant 4-1-2 held that a an prosecution ethics matter was immune from a malicious attorney which under circumstances in the suit would clearly otherwise of the reasoning have been sustainable. majority strong public that policy favor of maintain ing discipline strict adherence required rules of any impediment functioning removal of to the effective of the disciplinary system; allowing complainants potentially to be brought they vulnerable lawsuits whom 1 Rule 1:20-10 outlinеs for ethics confidentiality requirements proceed ings. impediment. such an The Court
complained was deemed be might help to suit subjecting noted while maliciously complaints, it was also some motivated snuff out similarly legitimate would quite possible making unacceptable policy considerations public chilled. The important enough to any chilling effect were deemed such arguments against immunity, such overcome the well-founded deprive lawyers protection it is unfair to of the such as: that population; to the lawsuits accorded rest of the from malicious attorney’s reputation potential harm to an and career that the great; high groundless complaints that the from such attorney that an must clear to sustain a malicious threshold already complainants protec- sufficient prosecution suit affords filing justifi- any apprehension eliminate about tion and should complainants cоmplaints; and that the immunization of able encourage attorney grievance proce- to abuse will dures. Legislature year, obviously response Toft,
Within a (L. 1956, 122). express passed 2A:47A-1 c. The statute N.J.S.A. brought against ly prosecution a malicious action to be allows complainant by attorney subject an who is the of an ethics challenged only prior once complaint. The statute was constitutionality question of its was not resolved (1965). Keoner, 44 case. See Black v. N.J. N.J.S.A. again challenged as unconstitutional in a case in 2A:47A-1 was legislation Judge Humphreys held that the did not con which *4 Supreme power exclusive over the disci flict with the Court’s constitutionally pline attorneys, and that it was otherwise prosecution action in that case was al valid. The malicious appeal There was no taken. Friedland v. lowed to stand. (Law Div.1980). Podhoretz, N.J.Super. study our disci- appointed
In this a committee to Court structure, by chaired retired Justice Mark A. Sullivan. plinary report proposed a of a rule In the discussion Committee’s would, effect, that reinstate the rule in this state: Toft namely, grant any that would rule ethics immuni- ty lawyer from whom complaint is made. issue, Justice equally Sullivan’s committee divided opposing opinion that, members such rule also of the any event, the matter should by rule-making treated but disposed rather should be and if when it should come before litigation. Court As a result оf report, the Court proposed adoption of such a Rule but of soliciting instead comments, argument. we ordered oral Jersey The New State Bar presented argument Association briefed the issues and oral opposition Rule; the adoption to of the the Division of Ethics and appeared support Professional Services of the Rule. 4-3, voted, adopt Thereafter the Court it. issue, arguments probably on this and the societal con-
sidеrations, changed very have little if at all since it first subject tempted say became a debate. While we are the Court’s determination to have as a disciplinary effective system possible stronger, as has never been it hard to believe any stronger that that determination is it with us than was with (and the former Supreme members of the Court in 1956 there- after) when, Legislature attorney’s right after reinstated an complainant, sue a ethics took the Court no actiоn whatsoever. believe, however, many
We do that as result of factors the public is much more and aware of concerned matters affecting bench, the bar somewhat more involved with 26,199 (there attorneys compared are presently 13,909 ago), especially more of the decade aware exist- public’s ence of right complain ethics committees and they when properly. believe have not acted Our belief is buttressed thе fact have *5 constantly grown years, apparently outstripping in recent even growth in in the state.2 the the number Obviously support opposite facts could the these be used conclusion, ground allowing by the on the the rule attorney against apparently has had the whatsoever, little; otherwise, chilling no effect one complaints might say, many not have filed at an we would so truth, course, accelerating pace. The is that neither minority any significant has hard majority nor the facts to back potential up the conclusion that for such suits is fact fact, complainants is, chilling who would otherwise act or any event, In having impor- no such effect. the matter is too tant, too too policy considerations involved obvious and conflicting theory allow a determination to be based some majority prove has under which the the burden the factual minority proving for such or the has the burden need a rule no that the absence of such a rule has had adverse effect. both have simply gap knowledge There is with which sides to contend. recognize persuasiveness of the contention that law-
yers are to made citizens” virtue some extent “second-class fact, likely, the same it is that little of such rule. At time damage reputations will be suffered the form blemished cases, by attorneys. overwhelming proportion In the complaint disposition private fact of the and its will remain (that complaint of our Court is dismissed the rule when frivolous); only practically inception being totally at its anxiety experienced by damage real and insult will be lawyer. private In some cases matter will remain likely complainants are the most to violate because malicious years, during increased 2 Inthe last five which the number has 26,199, 19,725 fee from number of arbitration and 33% 1,322 2,067 per year per year, grown has from a 56% increase. *6 requirement confidentiality.3 of We are of course concerned plight with the attorneys experience that sometimes in these However, apparent rarity the matters. with which have availed suggests themselves of 2A:47A-1 N.J.S.A. damage is suffered minimal. While this absence law- of may suits also deterring reflect law’s success in malicious complainants, particularly we are that may concerned it be impact well, an having deterring unintended non-malicious potential complainants along maliciously inspired. with ability attorneys effectively potential
The to muzzle com- plainants should not be filing underestimated. The formal complaints rarely represents ethics the first occasion on which attorney involved has about them. There heard is almost letters, calls, invariably phone threats, a succession of potential any complainant demands before ethics com- plaint during is filed. are many opportunities period There this filed, attorney complaint for the make it that if clear such is attorney response, using power will sue all the bring justice attorney of attorney office about the that the attorney charge is his or complain- feels her due. The will libel, slander, etc., ant prosecution, because that involved; lawyer may is what believe is and the early enough will informed all this him persuade be not to complaint. file a potentiаl obvious, complainants
The is for intimidation fully through person- know that capable, their own means, prosecute expenditure, al without substantial such litigation. complainant’s certainty expense defending same, plus risk, remote, is however held liable enough potential complainants change to make some their happened, happening, minds. Whether has is or likely this happen important is less to us than our belief that it should explicitly complainant’s on a 3 The Rule allows defamation based confidentiality requirement made in violation of the of Rule statement 1:20-10. possibility within our happen. should not tolerate the never We complainant may system potential be disciplinary attorney filing complaint. into intimidated an system is integrity in the of that need for confidence important. much too jurisdictions have come to similar
At least seventeen other
conclusions,
privilege for
providing an absolute
according complainants
im
proceedings or
testimony in ethics
statutes,
rules,
suit,
through court
or rules on
munity from
jurisdictions
pro
discipline.
also note five
attorney
“qualified” immunity
privilege,5
might
called
vide what
immunity
proposed.6
has been
Five
such an
and one which
precedents
establishing
either an
judicial
have
other
states
*7
Rules,
(Supp.1983);
Att’y
Disciplinary
Rule 9
Ariz.
Enforcement
4 Alaska
(Michie
Att’ys,
Supp.1983);
Regulating
Colo.R.C.P.
of
Rule XII
Rules
Conduct
Rosen,
(Fla.Dist.Ct.
259(C) (Michie Supp.1983);
v.
677 qualified privilege absolute or a for in the context specifically.7 libel actions law, English
Under common privilege” “absolute from defamation actions that attaches to all statements and testimo- witnesses, ny by judges, parties any the course of judicial proceeding apply has been held testimony statements made in the disciplinary proceed- course solicitor ings. Addis v. Crocker [1961] 1 Q.B. 11, 2 All E.R. 629 C.A. See But Halisbury’s cf. Lincoln v. Laws Daniels, England, [1962] Libel and Slander 28:98-101. 1 Q.B. 237, 3 All E.R. 740 (communication Secretary C.A. Bar Council that disciplinary within official channels privi- action held not leged).8
We are of our course concerned that action in effect invali- ordinarily dates statute. We do our best harmonize powers our constitutional apparently conflicting ofwill Cty. Passaic Probation Ass’n v. Legislаture. Officers Passaic, County 73 N.J. see Knight v. 247, (1977); 255 Rosen, 1032, Cal.App.3d v. Cal.Rptr. (Ct.App.Dist.1975) 48 7 Katz 121 853 628, 47); Bricker, (interpreting Kerpelman Md.App.2d § Cal.Civ.Code 329 v. 23 Co., (Ct.Sp.App.1974); Battery Supplies 423 v. A.2d Lee W.E. Fuetterer & (1929); Baggott Hughes, Mo. 23 S. W.2d45 v. 34 Ohio Misc. 296 N.E.2d (Ct.Comm.Pleas Fedder, 1973); (Tex.Civ.App. S.W.2d McAfee 1970). But from an action in rejected question in are action disciplinary case that establishes bench warrant's rather than 729 H.L. [1883] 8 Whether the much cf. 11 analogous Lilley that a witness (privilege Q.B.D. prosecution giving of "another рroceeding privileged same Roney privilege issue, to an action as those not 601-02. The false and [1892] suit), might applicable privilege gist evidence). different form of action on the prosecution and England 61 nevertheless be held liable for the for malicious we L.J.Q.B.D. Roy v. the action as to defamation to witness policies rely as to libel action but not as to use in also on in Prior, is not clear. 727 outlined in protects being who endorsing prosecutiоn." (affidavit gave malicious abuse of *8 actions, a witness or A.C. 470 However, support evidence in and letter Munster case, namely [1970] 1:20-11(b) today. argument statements that decision initiating support v. Lamb All process leading E.R. an (1978) (Court may accommodate 86 N.J. Margate, long legislation bearing judiciary as on legislative action purpose and does not interfere governmental legitimate serves area). This is interests constitutional with the Court’s area, however, responsibility is in which our constitutional one duty adopt a rule that we no of our clear as to leave doubt so needed, existing legisla- despite clear conflict with is its think respon- its simply cannot in the least abdicate This Court tion. disciplining of power over the sibility exercise exclusive probably correct in their dissenters are attorneys. While the showing such a statute has had there is no assertion that disciplinary proceedings, we do any impaсt on substantial a matter applied. should This is that is the test that be believe legis- solely by the Constitution. Whether to us committed us, is, important it seems to is minimal or lative intrusion or mediators of conflict- are not the moderators irrelevant. We rules concern- argue the wisdom of our ing factions who about responsible for that fully exclusively ing discipline. We are Legislature always of the is subject, point of view and while deference, wholly inappro- it would be given appropriate to be it, disagreeing we if, considering it and with after priate here it. nonetheless to adhere to were practical adopted not as a matter a rule is Sometimes That is the case here. principle. matter of expediency but as a disciplinary attempt to view the If the and the bench bar believe, find, that we have objectively they will we structure public. part on the of the While great for a deal of trust asked sitting еvery district ethics public now have members we Board, the fact is Disciplinary Review and on the committee Attorneys, to attorneys. majority of the members that the with, to, economically involved friendly close extent some handling district, are entrusted with other process: the screen- step disciplinary in the important most complaint. prosecution of a investigation, and initial factual ing, justice trust and believe ask the majority of done, since in the must trust and belief for it *9 public complaint cases does not a know that has been made of, disposed or how it is certainly and does know when it is We system dismissed. ask them to a trust which the initial proceedings and initial appellate review are dominated dispensation discipline in its lawyers. to other We trust, believe there substantial attributable some extent to presence public every members district ethics commit- tee, to the fact that it is known that is an appeal there available Disciplinary to the consisting Review Board highly the most respected (judges, members), lawyers, public citizens Court, appeal further to this almost all proceedings of whose public. public by are We believe now is aware of the fact very we only strict not in our ethical rules but in our implementation and Why enforcement of them. jeopardize that by allowing trust least even one citizen be sued a complaint lawyer, by on account of allowing made suit, one even citizen to by publicly be threatened with such or asserting, through statute, that such a threat can be made good? damage, damage, Is the potential to the bar so great infrequent that it cannot consequences suffer the of such complaint a malicious greater order assure even confi- system (And dence than now exists? here we refer not only structure, disciplinary confidence in our a confidenсe eroded, easily that could in general be but confidence in both bench.) the bar and the potential damage conclude from adoption that the 1:20-11(b) outweighed gained: is far benefits to
the enhancement of confidence and added assurance attorney system that our disciplinary effectively protects the public interest.
CLIFFORD, GARIBALDI, JJ., POLLOCK and dissenting. balanced, fair, dispassionate In the presen- face so so so contending points tation оf the of view as is found in the majority opinion, hard-pressed one is indignant. to wax Ordi- *10 unfairly unnecessarily narily, lawyers, decision that demeans a bar, produces cheeky overriding unwisely and demoralizes might legislative policy otherwise invite a long-standing of a bombast, here, withering maybe a little scorn some touch of acceptable by But its articulation hyperbole there. measured opinion effectively has taken position of our Court’s is our There little add. wind out of sails. down, plainly simply, judgment and to a
This decision comes us at since question call. The has been with least Toft Ketchum, denied, 141, cert. 350 U.S. S.Ct. N.J. reinstates, (1955), and 100 L.Ed. whose rule the Court now margins by the of repeatedly it has been decided narrowest — 4- (see ante at Toft, in in committee 1-2 5-5 Justice Sullivan’s 4-3 today by strongly vote. That record 671-72), and oppo suggests people reasonably can arrive at that reasonable site conclusions. in us, negatives immunity grievаnts for ethics
For outweigh cases the affirm- and clients in fee arbitration matters he, say Acknowledging that we cannot it better than atives. supra, Toft, who align ourselves Justice Jacobs we attorneys-at-law professionals are us reminds that calling in a service and nonetheless so who follow a common spirit public Throughout our country’s history because earn their livelihood. thereby they promoting and in the welfare much public have been forefrоnt they continuing ever their defense democratic leadership for them owed judicial which such system institutions. a vital our They play part displays rights high while are and, for and individual they solicitude civil liberties subject withstand them class to false attacks, they readily by periodically furthering justice. But to their task interests adherence dedicated individualized attacks malicious and they when these become irresponsibly wrongfully jeopardy of the livelihood particular reputation place greater no and while individual is entitled involved; attorney practitioner judicial than the law affords to those who under these circumstances protection justice, in all less. he entitled no is, follow other and occupations, professions holding, their lives those who devote so much of towards contrary it attaining law others should be denied for them- under equal protection (Jacobs, concurring).] N.J. at 290 ironic indeed. selvеs, J., seems [18 respectfully suggest in its protect public zeal to interest, gone the Court has far and too bent over backwards. fully qualified The needs of are met in the immunity 2A:47A-1, by specifically afforded N.J.S.A. designed over- lawyer come the rule The statute to bring allows Toft. an prosecution for malicious only lawyer “falsely when the has accused maliciously been * * probable impact and without cause of the Court’s wholly contrary deprives decision is to еmbrace a it view: damage upon of recourse for the and indignity visited inspired nothing them clients’ more *11 pure Surely than malice and sheer viciousness. canwe attain goal our confidence the bench and without bar adopting extraordinary position. this agree power
We are inclined that the Court has the adopt question, question we the Rule but of its wisdom healthy Legislature, A respect compe- exercise. whose policy judgments conсerning tence to make immunities no one questions, deferring legislative our to the warrants determina- expressed tion as the field N.J.S.A. 2A:47A-1. This is not Legislature which to risk a confrontation confronta- —a predicated entirely assumption tion on the unwarranted lawyers, perceived by public, shifty as at least lot.
Judge Humphreys, Podhoretz, Friedland N.J.Su per. 73, (Law Div.1980), reception characterizes Toft’s jurisdictions “underwhelming.” Understandably other as so. 1:20-11(b), Toft, policy which strikes us bad codifies Hence, just plain wrong. against adoption votes our Rule. adoption
For rule — Chief Justice WILENTZ and Justices SCHREIBER, HANDLER and O’HERN — 4. CLIFFORD,
Opposed POLLOCK GARIBALDI — Justices —3.