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In re Hearing on Immunity for Ethics

Decided: July 3, 1984.

IN THE MATTER OF THE HEARING ON IMMUNITY FOR ETHICS COMPLAINANTS


On review of the proposed Rule on Immunity for Ethics Complainants in Ethics and Fee Arbitration Proceedings.

For adoption of rule -- Chief Justice Wilentz and Justices Schreiber, Handler and O'Hern. Opposed -- Justices Clifford, Pollock and Garibaldi. The opinion of the Court was delivered by Wilentz, C.J. Clifford, Pollock and Garibaldi, JJ., dissenting.

Wilentz

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.*fn1 [ 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, 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 (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 (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 ...


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