Hearing on Immunity for Ethics Complainants, Matter of

• Citation: 477 A.2d 339,96 N.J. 669
• Parties: In the Matter of the HEARING ON IMMUNITY FOR ETHICS COMPLAINANTS.
• Decision Date: 03 July 1984
• Court: United States State Supreme Court (New Jersey)

Page 669

96 N.J. 669

477 A.2d 339

In the Matter of the HEARING ON IMMUNITY FOR ETHICS COMPLAINANTS.

Supreme Court of New Jersey.

Argued Oct. 11, 1983.

Decided July 3, 1984.

William J. Brennan, III, Princeton, for New Jersey State Bar ass'n.

August C. Michaelis, pro se.

Martin Sarver, pro se.

Irwin I. Kimmelman, Atty. Gen., pro se (Irwin I. Kimmelman, attorney; Irwin I. Kimmelman and Michael R. Cole, Asst. Atty. Gen., of counsel; William Harla, Deputy Atty. Gen., on the brief).

Joseph H. Rodriguez, Public Advocate, argued the cause pro se (Joseph H. Rodriguez, attorney; Richard E. Shapiro, Trenton, Director, Div. of Public Interest Advocacy, on the letter brief).

Colette A. Coolbaugh, Trenton, Asst. Director, argued the cause for Div. of Ethics and Professional Services.

The opinion of the Court was delivered by

WILENTZ, C.J.

On January 31, 1984, the Court adopted various rules concerning attorney discipline. One of those rules provides that any grievant in an ethics matter or client in a fee arbitration case shall be absolutely immune from suit for testimony or communications given or made in connection with the fee arbitration or ethics proceeding. The Rule would effectively bar libel and slander suits, for instance, as well as malicious prosecution suits. The Rule's text follows:

(b) Immunity for Grievants and Clients.

Grievants in ethics matters and clients in fee arbitration cases shall be absolutely immune from suit, whether legal or equitable in nature, for all communications to Committees, Fee Committees, the Director, the Board, or to appropriate staff and for testimony given in ethics or fee arbitration proceedings. This immunity shall not extend to any publication or distribution of information by a grievant or client that violates R.1:20-10.[ ¹ [R.1:20-11(b) ].

The Court, being seriously divided on the wisdom of the Rule, decided that, instead of an official Commentary, it would issue what amounts to a majority opinion and a dissenting opinion.

The Rule's modern history goes back to Toft v. Ketchum, 18 N.J. 280, 113 A.2d 671, cert. den., 350 U.S. 887, 76 S.Ct. 141, 100 L.Ed. 782 (1955). The Court, by a 4-1-2 vote, held that a complainant in an ethics matter was immune from a malicious prosecution suit by the attorney under circumstances in which the suit would clearly otherwise have been sustainable. The reasoning of the majority was that the strong public policy in favor of maintaining strict adherence to the rules of discipline required the removal of any impediment to the effective functioning of the disciplinary system; allowing complainants to be potentially vulnerable to lawsuits brought by attorneys against whom they complained was deemed to be such an impediment. The Court noted that while subjecting the complainant to suit might help snuff out some maliciously motivated complaints, it was also quite possible that legitimate complaints would similarly be chilled. The public policy considerations making unacceptable any such chilling effect were deemed important enough to overcome the well-founded arguments against such immunity, such as: that it is unfair to deprive lawyers of the protection from malicious lawsuits accorded to the rest of the population; that the potential harm to an attorney's reputation and career from such groundless complaints is great; that the very high threshold that an attorney must clear to sustain a malicious prosecution suit already affords complainants sufficient protection and should eliminate any apprehension about filing justifiable complaints; and that the immunization of complainants will encourage the public to abuse attorney grievance procedures.

Within a year, obviously in response to Toft, the Legislature passed N.J.S.A. 2A:47A-1 (L.1956, c. 122). The statute expressly allows a malicious prosecution action to be brought against the complainant by an attorney who is the subject of an ethics complaint. The statute was challenged only once prior to 1980, and the question of its constitutionality was not resolved in that case. See Black v. Keoner, 44 N.J. 140, 141, 207 A.2d 537 (1965). N.J.S.A. 2A:47A-1 was again challenged as unconstitutional in a case in which Judge Humphreys held that the legislation did not conflict with the Supreme Court's exclusive power over the discipline of attorneys, and that it was otherwise constitutionally valid. The malicious prosecution action in that case was allowed to stand. There was no appeal taken. Friedland v. Podhoretz, 174 N.J.Super. 73, 415 A.2d 381 (Law Div.1980).

In 1982 this Court appointed a committee to study our disciplinary structure, chaired by retired Justice Mark A. Sullivan. In the Committee's report was a discussion of a proposed rule that would, in effect, reinstate the rule of Toft in this state: namely, a rule that would grant any ethics complainant immunity from suit by the lawyer against whom a complaint is made. Justice Sullivan's committee divided equally on the issue, the members opposing such rule also being of the opinion that, in any event, the matter should not be treated by rule-making but rather should be disposed of when and if it should come before the Court in litigation. As a result of that report, the Court proposed the adoption of such a Rule but instead of soliciting comments, we ordered oral argument. The New Jersey State Bar Association briefed the issues and presented oral argument in opposition to the adoption of the Rule; the Division of Ethics and Professional Services appeared in support of the Rule. Thereafter the Court voted, 4-3, to adopt it.

The arguments on this issue, and probably the societal considerations, have changed very little if at all since it first became a subject of debate. While we are tempted to say that the Court's determination to have as effective a disciplinary system as possible has never been stronger, it is hard to believe that that determination is any stronger with us than it was with the former members of the Supreme Court in 1956 (and thereafter) when, after the Legislature reinstated an attorney's right to sue a malicious ethics complainant, the Court took no action whatsoever.

We do believe, however, that as a result of many factors the public is much more aware of and concerned with matters affecting the bar and the bench, somewhat more involved with attorneys (there are presently 26,199 lawyers as compared to 13,909 a decade ago), and especially more aware of the existence of ethics committees and the public's right to complain when they believe attorneys have not acted properly. Our belief is buttressed by the fact that ethics complaints have constantly grown in recent years, even apparently outstripping the growth in the number of lawyers in the state. ²

Obviously these facts could be used to support the opposite conclusion, on the ground that the rule allowing suit by the attorney against the malicious complainant has apparently had no chilling effect whatsoever, or very little; otherwise, one might say, we would not have so many complaints filed at an accelerating pace. The truth, of course, is that neither the majority nor the minority has any significant hard facts to back up the conclusion that the potential for such suits is in fact chilling complainants who would otherwise act or is, in fact, having no such effect. In any event, the matter is too important, the policy considerations involved too obvious and too conflicting to allow a determination to be based on some theory under which the majority has the burden to prove the factual need for such a rule or the minority has the burden of proving that the absence of such a rule has had no adverse effect. There is simply a gap in knowledge with which both sides have to contend.

We recognize the persuasiveness of the contention that lawyers are to some extent made "second-class citizens" by virtue of such a rule. At the same time it is likely, in fact, that little damage in the form of blemished reputations will be suffered by attorneys. In the overwhelming proportion of cases, the fact of the complaint and its disposition will remain private (that being the rule of our Court when a complaint is dismissed practically at its inception as being totally frivolous); the only real damage will be the anxiety and insult experienced by the lawyer. In some cases the matter will not remain private because malicious complainants are the most likely to violate a requirement of confidentiality. ³ We are of course concerned with the plight that attorneys sometimes experience in these matters. However, the apparent rarity with which attorneys have availed themselves of N.J.S.A. 2A:47A-1 suggests that the damage suffered is minimal. While this absence of lawsuits may also reflect the law's success in deterring malicious complainants, we are particularly concerned that it may be having an unintended impact as well, deterring non-malicious potential complainants along with the maliciously inspired.

The ability of attorneys effectively to muzzle potential complainants should not be underestimated. The formal filing of ethics complaints rarely represents the first occasion on which the attorney involved has heard about them. There is almost invariably a succession of letters, phone calls, threats, and demands by the potential complainant before any ethics complaint is filed. There are many opportunities during this period for the attorney to make it clear that if such complaint is filed, the attorney will sue in response, using all the power of the office of attorney to bring about the justice that the attorney feels is his or her due. The attorney will charge the complainant with libel, slander, malicious prosecution, etc., because that is what the lawyer may believe is involved; and the complainant will be informed of all this early enough to persuade him not to file a complaint.

The potential for intimidation is obvious, for complainants know that lawyers are fully...