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Toft v. Ketchum

Decided: May 2, 1955.

HOWARD LIONEL TOFT, PLAINTIFF-APPELLANT,
v.
MARY G. KETCHUM, DEFENDANT-RESPONDENT



On appeal from the Law Division of the Superior Court, certified by this court on its own motion while pending in the Appellate Division of the Superior Court.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Jacobs and Brennan. For reversal -- Justices Wachenfeld and Burling. The opinion of the court was delivered by Vanderbilt, C.J. Jacobs, J. (concurring). Wachenfeld, J. (dissenting). Burling, J. (dissenting).

Vanderbilt

This appeal involves a determination as to whether the defendant may be liable to the plaintiff, an attorney-at-law, for malicious prosecution.

On September 24, 1953 the defendant filed a complaint in accordance with R.R. 1:16-4 with the Monmouth County Ethics and Grievance Committee, charging the plaintiff with improper conduct. A copy of the complaint was served upon the plaintiff, who in due course filed his answer. The committee conducted hearings on four different days in November, 1953, at which witnesses on both sides were examined and cross-examined pursuant to R.R. 1:16-4(g) as a result of which the committee filed a presentment with this court charging the plaintiff with unethical and unprofessional conduct. On due consideration of the presentment and the supporting testimony we issued an order to show cause why

the plaintiff should not be disbarred or otherwise disciplined. After studying the briefs and hearing oral argument on the return of the order to show cause, we discharged the order to show cause for the reason that it appeared that the plaintiff herein was not acting as an attorney-at-law when the alleged unethical conduct took place, but rather that he was engaged in business operations as a real estate broker and the complaint should have been made to the New Jersey Real Estate Commission, N.J.S.A. 45:15-17, rather than to an ethics and grievance committee of this court. We did not attempt to pass upon the conduct of the plaintiff as a real estate broker nor on the question of the jurisdiction of this court under the Constitution with respect to the actions of an attorney-at-law in business matters not directly related to the practice of law. In subsequent cases, In re Genser, 15 N.J. 600, 606 (1954), In re Carlsen, 17 N.J. 338, 346 (1955), however, we have taken jurisdiction over matters involving unethical conduct of attorneys-at-law in non-legal matters and if the disciplinary case involving the plaintiff herein had come before us subsequent to these decisions we would have gone into the merits of the charge.

On August 26, 1954 the plaintiff instituted this action in the Superior Court for malicious prosecution, claiming that the complaint filed by the defendant with the Monmouth County Ethics and Grievance Committee was false and without reasonable or probable cause, and that as a result thereof his professional reputation suffered and he was forced to expend money in his defense. The defendant moved to dismiss the complaint on the ground that it failed to set forth a cause of action and her motion was granted by the trial court. The plaintiff appealed and we certified the appeal on our own motion prior to oral argument in the Appellate Division of the Superior Court.

The defendant claims that the dismissal of the complaint should be upheld because an action for malicious prosecution cannot be predicated upon the institution of a proceeding before other than a judicial tribunal. We cannot agree with this general statement of law, because we incline

on principle toward the weight of authority in this country, which supports the view that under certain circumstances a malicious prosecution may be predicated upon the institution of other than a judicial action, at least where such proceedings are adjudicatory in nature and may adversely affect legally protected interests, National Surety Co. v. Page, 58 F.2d 145 (4 Cir. 1932); Melvin v. Pence, 76 U.S. App. D.C. 154, 130 F.2d 423, 143 A.L.R. 149 (Ct. App. D.C. 1942); Rivers v. Dixie Broadcasting Corp., 88 Ga. App. 131, 76 S.E. 2 d 229 (Ct. App. 1953); 3 Restatement of Law of Torts, sec. 680; notes 11 Geo. Wash. L. Rev. 118 (1942), 41 Mich. L. Rev. 549 (1942); 34 Am. Jur., Malicious Prosecution, sec. 19.1; see also Saum v. Proudfit, 122 N.J.L. 96 (Sup. Ct. 1939); Stein v. Schmitz, 21 N.J. Misc. 218 (Sup. Ct. 1943), affirmed 137 N.J.L. 725 (E. & A. 1948). Moreover, the filing of a complaint with one of our ethics and grievance committees is in effect a filing with the Supreme Court, in which alone the power to discipline attorneys at law in New Jersey resides, Const., Art. VI, Sec. II, par. 3. The several county ethics and grievance committees established under our rules of court, R.R. 1:16-1 et seq., are arms of the court which perform the very important functions of receiving complaints, investigating them, holding hearings on them, and then presenting their findings to the court. The Supreme Court, however, has at all times full control over the proceedings and regardless of the conclusion of the committee a full report must be submitted to the court, R.R. 1:16-4(h), which, although giving due weight to the findings and conclusions of the committee, has the sole responsibility of deciding whether the attorney in question should be disciplined. From the very beginning a disciplinary proceeding is judicial in nature, initiated by filing a complaint with an ethics and grievance committee.

The basic question before us is whether public policy requires that the filing of a complaint with an ethics and grievance committee be privileged. In dealing with this issue we are confronted by two conflicting considerations of policy. On the one hand, there is the injury that may be

suffered by any attorney as a result of the institution of disciplinary proceedings against him on what turns out to be improper or groundless charges. Even if the charges against him are found to be baseless and the complaint is dismissed, he still may suffer from the public knowledge of these proceedings which may damage his reputation and injure his ability in the future to earn a living. Consideration of the interests of the attorney led our former Supreme Court to uphold an action similar to that involved here in Stein v. Schmitz, 21 N.J. Misc. 218 (1943), but on appeal the Court of Errors and Appeals expressly reserved decision on this point, 137 N.J.L. 725 (1948).

On the other hand, however, it is in the public interest to encourage those who have knowledge of any unethical conduct of attorneys to present such information to the appropriate county ethics and grievance committee so that this court may carry out its constitutional disciplinary duties. Disciplinary proceedings against members of the bar are sui generis. In In re Ries, 131 N.J.L. 559, 562 (Sup. Ct. 1944), the true function of the disciplinary proceeding is described:

"But the proceeding is not criminal in nature. It is an exercise of the summary disciplinary jurisdiction of this court over attorneys and counselors, as officers of the court. Strong & Sons v. Mundy, 52 N.J. Eq. 833. It is civil in character, or, perhaps, it is more accurate to say it is sui generis, for it partakes, essentially, of an inquiry to determine whether the delinquent practitioner is unworthy of the trust and confidence which attend the relationship of attorney and client. This is necessarily the basic consideration. The object of disciplinary proceedings is not alone to punish the attorney guilty of malpractice; the primary purposes are to compel the attorney to deal fairly and honestly with his client, and to determine whether he has, by his conduct, proved himself unfit to be entrusted with the duties and responsibilities of the office of attorney. In re Lentz, 65 N.J.L. 134. If it is thereby evident that there is such deficiency of character as disqualifies him for the confidence and trust inherent in the office, the public interest requires that he be ousted; and this wholly apart from any consideration of punishment."

In In re Chernoff, 344 Pa. 527, 26 A. 2 d 335, 339 (Sup. Ct. 1942), the court repeated well ...


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