October 2005

Topic:
The First Amendment provides that a disciplinary grievant may speak publicly regarding the fact that a grievance has been filed, the content of that grievance, and the result of the regulatory process, notwithstanding state confidentiality guidelines.

R.M. v. Supreme Court, 185 NJ 208, 883 A.2d 369 (October 19, 2005). As is true in most jurisdictions, New Jersey Supreme Court rules provide that disciplinary investigations and preliminary proceedings are private and confidential until such time as formal charges are lodged by the regulatory authority against a lawyer. R.M. retained a New Jersey lawyer to represent her in a legal matter and subsequently filed a grievance alleging professional misconduct. The form that she used to file the grievance contained the following language:

A lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority. A lawyer may not condition settlement of a civil dispute involving allegations of improprieties on the part of a lawyer on an agreement that the subject misconduct not be reported to the appropriate disciplinary authority.

[O]nce you file this grievance you are REQUIRED thereafter to keep all communications about this ethics matter CONFIDENTIAL during the investigation until and unless a [formal] complaint is issued and served. Only at that time does confidentiality end and the matter become public. This investigative confidentiality does not prevent you from discussing the facts underlying your grievance with, or reporting to, any other person or agency. However, during the investigation you may not disclose that fact that you have filed an ethics grievance to persons other than members of the attorney disciplinary system, except to discuss the case with other witnesses or to consult an attorney.

Rule 8.3(a) supports the conclusion that a lawyer has the responsibility to aid the bar in assuring that the Rules of Professional Conduct are observed by other lawyers…There is an expectation that lawyers will carry out their duty to ensure justice by adhering to the principles contained in the Rules. Failure to do so can result in serious disciplinary consequences for the lawyer…In addition, lawyers are required to possess a detailed understanding of the Rules and therefore are generally considered to be in a better position than a non-lawyer to spot a violation of the Rules. Because the legal profession is self-regulated and relies upon its members to police itself, no lawyer's employment should be conditioned upon turning a blind eye to violations of the Rules which are applicable to all lawyers. To allow this would compromise the autonomy of the profession. Therefore, this court finds that the plaintiff has sufficiently alleged that the Rules of Professional Conduct are an important public policy

During the course of the disciplinary investigation, R.M.'s lawyer admitted specific acts of misconduct in regards to the representation. The disciplinary authority concluded that minor ethics violations had occurred that would likely result in a public admonition. It was decided, however, that the matter against the lawyer should be diverted, i.e., essentially due to the minor nature of the misconduct, and the nature of the specific facts of the case, formal proceedings would not be brought against the offending practitioner. The diversion was confidential. R.M. wanted, however, to publicize the action of the disciplinary authority and to announce the diversion decision at a public meeting of the governmental body on which her former lawyer served.

She filed suit in state court against the New Jersey Supreme Court, the disciplinary authority, and the errant lawyer, alleging that the confidentiality guidelines violated constitutional standards. The New Jersey Supreme Court certified the matter. During the pendency of the litigation, the Court requested that its Professional Responsibility Rules Committee review the issues, solicit comments from other parties and groups, and submit findings to the Court. The PRRC submitted a memorandum and summary letter in which it recommended that disciplinary investigations remain confidential. After reviewing the operations of the disciplinary system in New Jersey and reciting a recent series of cases from other jurisdictions invalidating or modifying state ethics confidentiality rules (Florida, Tennessee, and New Hampshire), the Court unanimously concluded that the rule as written and applied violated the First Amendment because it was not narrowly tailored to advance a compelling state interest. The state had initially advanced three reasons for the bar on speech: to protect attorneys' reputations from unfounded grievances, to preserve the integrity of disciplinary investigations, and to encourage diversion in cases involving minor misconduct. The Court rejected each reason as constituting a sufficient compelling interest to support the law as written. The Court wrote:

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. 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 responsible stage."...Accordingly, we hold that a grievant may speak publicly regarding the fact that a grievance was filed, the content of that grievance, and the result of the process.

The Court held, however, that documents gathered during ethics proceedings are not to be publicly revealed by the disciplinary authority and the contents of the diversion agreement are not to be released.