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AAUGUSTUGUST 2011 2011FFEATUREDEATURED R REGULATORYEGULATORY C CASEASE

TOPIC:There is generally no due process right to appeal the decision of a lawyer regulator

to dismiss a grievance.

SUMMARY:

The lawyer disciplinary process in New Jersey is a fascinating hybrid of regulatory schemes derived from different eras. Not many jurisdictions, other than Ohio, Missouri and, perhaps, a few others, still retain such a unique combination of both a local and statewide review of lawyer misconduct.

As in most states, the New Jersey high court has always asserted its inherent authority to regulate the practice of law. Similar to many jurisdictions, lawyer disciplinary matters in the Garden State, before the early 1970’s and the Watergate Era, were investigated and prosecuted almost exclusively at a local level, meaning that ethics committees were established in each and every county to field grievances and bring formal disciplinary charges against lawyer malefactors. In the mid to late 1970’s, many jurisdictions began moving away from more localized regulation. New Jersey, however, preserved a striking amount of fairly local control.

In l978, the New Jersey Supreme Court regionalized the local disciplinary system by combining the county committees into twelve district ethics committees. Public members were added to the district committees in l979. As a result, lay participation in New Jersey was introduced into the attorney disciplinary process long before it happened in most states. In 1984, the Court established the Office of Attorney Ethics (“OAE”) as its chief investigative and prosecutorial arm. At the same time, the Court also crafted eighteen different district ethics committees and seventeen distinct fee arbitration committees to assist in the administration of the Court’s disciplinary function. The OAE assists and manages these many committees throughout the state. Each district ethics committee is comprised of not less than eight members, of which a minimum of four members must be attorneys and two must be lay persons, all of whom are appointed by the Court and serve at its pleasure. All members of such district committee must reside or work in the county in which the ethics district lies.

The district committees receive and investigate grievances and, if necessary, hold disciplinary hearings. Essentially, filing a grievance with a district committee is, in effect, filing a grievance with the Supreme Court. The Director of the OAE, after consultation with the chairperson of a

district committee, is required to appoint a secretary who is not a member of the committee. The secretary is the designated recipient of all grievances filed with that district committee. The secretary evaluates any grievance and determines whether the committee should investigate it for possible prosecution or dismiss it without further inquiry, specifically, looking at whether the conduct attributed to the attorney, taken as true, would violate the New Jersey Rules of Professional Conduct. In situations in which the secretary has preliminarily decided to decline jurisdiction of a grievance because the facts alleged, "if true, would not constitute unethical conduct or incapacity," the secretary is required to consult with a public member of the committee. If the public member agrees with the secretary's preliminary determination, the secretary must decline to accept the grievance. However, if the public member disagrees with the secretary's preliminary decision, the secretary must accept the grievance for further investigation. The secretary is required to notify the grievant of the decision and provide a copy of the specific Court Rule or written guideline for declination. Grievances that are initially docketed, investigated, and then dismissed may be appealed. However, the Court rules expressly provide that the decision by a secretary to decline a grievance is not appealable.

In 1991, Chief Justice Robert N. Wilentz appointed the New Jersey Ethics Commission, commonly known as the Michels Commission, to “recommend those changes needed to assure that New Jersey's ethics system becomes as effective, as efficient, and as responsive as possible.” The Michels Commission Report was released in 1993. One of its primary concerns was the ever-increasing backlog of cases, which is, without a doubt, the bane of every lawyer disciplinary authority. The Commission noted that a large number of grievances, as many as eighty percent, were never docketed, but were deflected by the district secretaries based on their determination that a cause of action had not been stated that would justify docketing the grievance.

The Michels Commission noted the Supreme Court had an “open complaint” policy that allowed a grievant to insist that his or her grievance be docketed and investigated, but it recognized that most people were unaware of this option. The Commission concluded that “this aspect of the disciplinary system requires major revision” and “[i]t should be a primary goal of the disciplinary system to provide meaningful and timely assistance to members of the public who have concerns regarding their lawyers’ conduct.”

It is currently the function of the district secretary to screen all grievances prior to docketing. While, in a perfect world, all secretaries would apply the same standards and norms, in actual practice, their action may be subjective and can result in disparate treatment of grievants, depending on the vagaries of chance as to where the grievance is filed. There is currently no oversight of, or right of appeal from, the dismissal of an undocketed grievance.

On July 14, 1994, the Supreme Court issued its own administrative determinations responding to the Michels Commission’s recommendations. The Court rejected the recommendations of the Commission for a central

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intake office for the receipt of all grievances against attorneys and, instead required, as part of an overall plan to increase public participation in the disciplinary process, that a public member concur with any decision by the district secretary not to docket a grievance. Another major change made by the Court included the establishment of a Disciplinary Oversight Committee, “whose main function will be to inform the Court of the effectiveness of the revised disciplinary system and its shortcomings.” Of the eleven members of this Disciplinary Oversight Committee, five must be members of the public. The Committee reports to the Supreme Court quarterly “and at such other times as the Supreme Court and the Oversight Committee deem appropriate, making whatever recommendations it believes would improve the quality and efficiency of the disciplinary system and strengthen adherence to high ethical standards.”

Martin O’Boyle lives in Florida, but also has a second home in Longport, New Jersey. 1 Not being a resident of New Jersey, he cannot vote in Longport elections, According to his lawyers, O’Boyle likes to know what local New Jersey officials are doing with the money they take from him in the form of property taxes and why Longport is, in his mind, so haphazardly managed. So, he regularly makes requests under the Open Public Records Act and, “has exposed many, many improprieties to the great embarrassment of the elected officials. In order to stop him from getting information under OPRA, Longport changed its request form to mandate that records will only be given to New Jersey citizens…[He sued]…under the New Jersey Civil Rights Act to invalidate the “locals only” restriction, contending it raises a host of constitutional concerns.” See http://friedmandoherty.com/2009/nj-attorney-general-agrees-that-longport-is-wrong-about-opra/ (last visited September 16, 2011).

It was an electrical problem that developed in O’Boyle’s Longport home that led to the New Jersey opinion that is the subject of this summary. O’Boyle and his wife were involved in a dispute over an unpaid bill with an electrician who performed work at the home. James Swift, an attorney for the electrician, sent a letter to O’Boyle’s attorney, stating an intention to file a construction lien and notify Longport officials that O’Boyle performed work on the property without the proper construction permits in the event that O’Boyle did not promptly pay the debt. O’Boyle refused to accede to the attorney's demand for payment. After receipt of Swift's letter, Longport officials filed municipal court complaints against the O’Boyle clan. O’Boyle apparently prevailed in his dispute with officials, but says that he ultimately incurred over $100,000 in attorney and expert fees.

Upset, O’Boyle filed a grievance with the District I Ethics Committee claiming that the electrician’s lawyer, Swift, violated various ethics provisions, “notably [New Jersey Rule of Professional Conduct] 3.4(g), by threatening criminal charges against the O'Boyle family in order to gain an advantage in a civil contract matter.” He included a recitation of the facts, a certification of

1 The population of Longport, according to the 2010 census, was 895. See generally, http://en.wikipedia.org/wiki/Longport,_New_Jersey (last visited September 19, 2011)

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his attorney who was the recipient of the letter and phone call from Swift, and a copy of Swift's letter to Longport. Thereafter, the grievance was rejected by the District I Secretary, with a concurrence by the designated public member, based on a decision that the facts stated in the grievance, if true, would not constitute unethical behavior. The file was therefore closed. O’Boyle’s attorney subsequently wrote the Secretary, arguing that the threat of prosecution by way of municipal ordinance in the municipal court was a prohibited threat of “criminal” prosecution within the meaning of Rule 3.4(g). O’ Boyle’s lawyer cited case law and Supreme Court Advisory Committee opinions to support the grievance. The Secretary and public member again conferred and, by letter and e-mail, the Secretary provided O’Boyle with further explanation of the decision and advised there would be no investigation.

Undeterred, O’Boyle filed a three count civil complaint in state court against the Committee, Charles Centinaro, in his official capacity as OAE Director, and the New Jersey Supreme Court. O’Boyle sought to compel the Committee to accept jurisdiction over his grievance, interpret Rule 3.4(g) “according to its plain purpose of prohibiting threats of prosecution to influence civil matters,” and to refrain from “arbitrarily and erroneously relying upon the criminal code to determine the scope" of Swift’s ethical responsibilities. O’Boyle also sought to enjoin “all policies existing on any level of the attorney ethics system that allows local committees [to] establish their own standards regarding the interpretation of [Rule] 3.4(g).” In addition, he alleged that his substantive due process rights to pursue attorney discipline grievances were violated by the Committee's refusal to accept his grievance against Swift. He sought both a declaratory judgment and an award of attorneys' fees and costs against defendants.

Defendants filed a motion to dismiss that the trial court granted. In dismissing the case, the trial judge ruled that the New Jersey Supreme Court, under the authority granted by the state constitution, had set up a specific mechanism allowing a district secretary to accept grievances or to reject grievances with no appeal, and the judge ruled that the inferior courts have no jurisdiction to change that procedure. The judge observed that plaintiff's request for greater appellate rights than he was entitled to would be better addressed by a request to the Supreme Court Committee with jurisdiction over the ethics rules for a modification of the current procedure. The court was not persuaded that plaintiff's inability to appeal the District I Secretary's decision violated his due process rights, elaborating:

Well, I think he had a process. He presented his grievance, presented the letters. The secretary who holds a very significant position in the district ethics process reviewed it, was disinclined to accept it, decided to confer with a public member. There was a three-month lapse. I assume there was an opportunity to

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discuss and review, and made a decision. So there was a process, and there was a result and there was an opportunity…There was no absence of a due process mechanism here, it was just more limited in focus, and if you believe strongly then you can certainly articulate that to the appropriate forum. I just don't think it’s here with all due respect.

An appeal ensued.

The Appellate Court rejected O’Boyle’s arguments, concluding that permitting appeals from judicially-created agencies to the Superior Court would be “inconsistent” with the Supreme Court's “exclusive constitutional authority over the regulation of the Bar.” O’Boyle argued that the local ethics committees are left, by the lack of procedural safeguards, to create whatever standards the Districts see fit to impose on a grievant and there is no way to have the declined grievance reviewed or safeguarded in a meaningful way to have his grievance considered. The Court rejected this argument and noted that O’Boyle’s dissatisfaction with the procedure established by the disciplinary rule,s and the Committee's decision, did not translate into a cognizable claim in the court system. The dismissal was therefore affirmed.

The case is Martin O’Boyle v. District I Ethics Committee, et al., Docket No. A-4599-09T4 (Sup. Ct. New Jersey, Appellate Division, August 12, 2011).

JAMES J. GROGAN, DACC, Illinois ARDC

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