f/k/a . . . the archives

May 4, 2005

omerta in new jersey

Filed under: — David Giacalone @ 7:19 pm
On May 2, 2005, the New Jersey Supreme Court heard arguments on the Court’s
own Lawyer Disciplinary Procedure Rule 1:20-9(a), which has been interpreted to bar
complainants from disclosing the existence of their complaints (under pain of criminal
contempt charges), unless a formal complaint has been issued.  Explaining R.M. vs.
the Supreme Court of New Jersey, the New Jersey Star-Ledger notes (May 3, 2005,
“The rule makes a grievance against a lawyer secret until an ethics
committee determines it is backed up by reasonable cause and issues
a formal complaint. In the vast majority of cases, that never happens.
Either the grievance is dismissed as unfounded or, as happened in R.M’s
case, the lawyer agrees to correct a minor ethical lapse and no formal
disciplinary action is taken.
” ‘R.M. can never criticize the ethics committee for not doing more regarding
her grievance,’ [R.M's attorney] said. “In a free society, government may
not constitutionally prohibit people from discussing a topic simply to protect
people’s reputations.”
ethicalEsq stated his opposition to such “gag rules” early and often (see post), as has the
legal reform group HALT.   In May 2004, HALT reported in its eJournal that the group had
submitted Comments to the NJ Supreme Court, asking the Court to declare the discipline
gag rule unconstitutional as applied to complainants.  HALT also suggested commentary and
an amendment to Disciplinary Procedure Rule 1:20-9(a) to clarify that the Rule “strictly applies
to disciplinary personnel,” in order to achieve “an important balance between ensuring thorough
investigations and permitting grievants to exercise their constitutional right to free speech.”
Although Bar Counsel apparently stated at oral argument that “46 other states have the same
confidentiality rule,” HALT found only eight other states in its 2002 discipline study (Alaska,
Arkansas, Georgia, Montana, Nebraska, Nevada, South Dakota and Washington).   The HALT Comments stated:
“New Jersey is one of only a tiny remaining handful of states that continues to
deprive grievants of their right to free expression by prohibiting them from speaking
publicly about their complaints.”
“To our knowledge, no state supreme court has upheld a disciplinary gag rule upon
a grievant’s challenge. In fact, the modern trend has seen several states, including
Tennessee, Florida and New Hampshire, strike down their confidentiality requirements
on free speech grounds.”
[see John Doe v. Jane Doe, 127 S.W.3d 728, 731 (Tenn Sup. Ct., 2004); Petition
of Brooks, 678 A.2d 140, 143 (N.H. 1996); Doe v. Supreme Court, 734 F. Supp.
981, 985 (S.D. Fla. 1981)]
In Tennessee, the existence of a complaint could not be disclosed unless public discipline was
imposed.  As we posted in Feb. 2004, the Tennessee Supreme Court rejected all reasons
advanced by Bar Counsel in defense of the rule on free speech grounds.  Here are excerpts
from John Doe v. Jane Doe, (2004):
- “We conclude that the three interests advanced by the Attorney General –
protection of reputation of an attorney and the Bar from meritless complaints,
protection of anonymity of complainants and other persons supplying information
to the Board, and maintenance of the integrity of pending investigations – while
legitimate, are not sufficiently compelling to justify the restriction on free speech
by section 25, particularly considering the broad scope of its confidentiality
requirement.”
- “[W]e conclude that to the extent a legitimate interest in reputation is at stake
in requiring confidentiality under section 25 of Rule 9, such interest should not be
recognized as compelling. Assuming arguendo that protection of reputation from
frivolous complaints constitutes a compelling state interest, a confidentiality provision
precluding the disclosure of both frivolous and non-frivolous complaints is not sufficiently
narrowly tailored to meet such interest.”
- “The interest of promoting meritorious complaints and assistance in investigations
could be advanced by permitting and encouraging confidentiality, not requiring it.”
- “The idea that the suppression of truthful criticism of lawyers would somehow
enhance or protect the reputation of the Bar is not persuasive. To the contrary,
continuing the prohibitory effect of the Rule after a grievance against an attorney is
found to be meritorious is far more likely to engender suspicion than foster
confidence.”
There’s no excuse for such disciplinary gag rules.  Take a look at the Doe case from Tennessee,
if you need further persuasion.  Remember to subsitute the name of another profession, if you’re
a lawyer who doesn’t want to give up our Family’s little penchant for secrecy.
To the N.J. Court and Bar: “Please give up the decoder rings and pinky rings.  Secrecy breeds contempt, not respect.  No More Omerta.”
p.s. The same goes for Alaska, Arkansas, Georgia, Montana,
Nebraska, Nevada, South Dakota and Washington, which have
similar gag rules – and the 27 state grievance committees that
strongly advise or request consumers to keep their grievances secret.
update (Sept. 2005): The New Jersey Supreme Court has concluded that the
Gag Rule is unconstitutional.  See our post.
after the big flock
silence
geese flying north
the village of nondrinkers
is silent . . .
plum blossoms

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