On certification to the Superior Court, Law Division, Mercer County.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In this matter, R.M. challenges the constitutionality of Supreme Court Rule 1:20-9, which mandates that an ethics grievance filed against an attorney remains confidential until a formal complaint is filed.
R.M. retained New Jersey attorney "Jane Doe" to represent her in a legal matter. She subsequently filed a grievance against Doe with the District XIII Ethics Committee (DEC). The grievance form cautioned R.M. that she had to keep all communications concerning the grievance confidential "until and unless a complaint is issued and served."
During the DEC's investigation, Doe admitted specific acts of misconduct in connection with her representation of R.M. Pursuant to established procedures, the DEC Chair reviewed the matter and determined that Doe was eligible for "diversion" because her ethical violations were minor and were not likely to result in a discipline greater than an admonition.
The DEC informed R.M. that although Doe had accepted diversion, the matter would remain confidential under Rule 1:20-9(a).
R.M. sued the Supreme Court, the Office of Attorney Ethics, the District XIII Ethics Committee, and "Jane Doe," alleging that the rule violates the free speech provisions of the United States and New Jersey Constitutions by restricting R.M.'s ability to discuss her grievance against Doe. R.M. indicated that if confidentiality were lifted, she would publicize the facts that she filed the grievance, that the Chair of the DEC concluded there was a reasonable prospect of finding Doe guilty of minor ethical misconduct, and that Doe had entered into a diversion agreement. In particular, R.M. seeks to announce this information at a public meeting of the governmental body on which Doe serves and at other public forums.
The Supreme Court certified the case directly to the Superior Court, Law Division, pursuant to Rule 2:12-1. Prior to hearing oral argument on the matter, the Court asked its Professional Responsibility Rules Committee (PRRC) to review the issues raised by the parties, solicit comments, and submit findings to the Court. The PRRC filed a report with the Court in which it recommended that investigations should remain confidential until completed. The PRRC also proposed that if the Court were to limit the scope of confidentiality, it should eliminate the existing absolute immunity for grievants.
HELD: As written and as applied, Rule 1:20-9 violates the First Amendment because it is not narrowly tailored to serve a compelling interest. A grievant may discuss publicly the fact that he or she has filed a grievance, the content of that grievance, and the result of the process. The Court's holding applies retroactively to all grievances currently being processed by the attorney disciplinary system. The confidentiality of concluded matters shall, however, remain in effect.
1. The overarching goal of the attorney disciplinary system is to protect the public from unfit lawyers and to promote public confidence in the legal system. A grievance is initially handled by the DEC Secretary. The Secretary dockets the grievance if the allegations, assuming they are true, amount to misconduct. Once docketed, the grievance is assigned to a member of the DEC for investigation. At the conclusion of the investigation, the member reports to the Chair of the DEC, who determines whether the DEC should either file a formal complaint against the respondent attorney or dismiss the matter. In addition, if the Chair were to determine that there is misconduct but that it would not result in a sanction greater than an admonition, the matter would qualify for "diversion." In such a case, the attorney would have to sign an agreement in lieu of discipline. Fulfillment of the terms of the agreement would result in the dismissal of the matter. If the attorney were to fail to comply with the agreement, the matter would proceed under a formal complaint for discipline.
Formal complaints are considered by three-member panels of the DEC. At least one member of each panel is a layperson. Each panel's hearings are public. If a panel recommends discipline, the matter is referred to the Director of the Office of Attorney Ethics (OAE) for transmittal to the Disciplinary Review Board (DRB). The DRB reviews all appeals and recommendations for discipline and conducts public hearings on the latter. It then files its determinations with the Supreme Court, which issues an Order to Show Cause in cases in which disbarrment is recommended by the DRB. In all other cases, the Court may further review the matter or accept the DRB's decision as submitted. (pp. 5-8)
2. Supreme Court Rule 1:20-9 contains the confidentiality provisions for the attorney disciplinary system. Confidentiality applies, with certain enumerated exceptions, to all matters that have not reached the formal complaint stage. (pp. 8-9)
3. The United States Supreme Court has had many opportunities to review the concept of "free speech" under the First Amendment. To sustain a governmental proscription of the publication of truthful speech, the State has the burden of demonstrating that its action furthers a "compelling interest." Beyond that, the State also must show that the regulation is "narrowly tailored" to achieve its compelling interest. (pp. 10-11)
4. The State argues that maintaining confidentiality in attorney disciplinary proceedings prior to the issuance of a formal complaint furthers three compelling interests: 1) protecting the reputations of lawyers who are unfairly accused of wrongdoing; 2) encouraging attorneys who have committed minor misconduct to agree to diversion; and
3) preserving the integrity of the disciplinary system and its investigative process. After analyzing each of the arguments raised by the State, the Court has concluded that none of them presents "compelling interests" that are "narrowly tailored" for achievement. (pp. 17-28)
5. Although the Court's decision invalidates the confidentiality provisions of Rule 1:20-9, there are still means by which the disciplinary system can further an attorney's interest in confidentiality without violating the First Amendment: 1) A DEC can recommend that the grievant maintain confidentiality during the investigatory stage and the grievant can agree to do so when it is in his or her best interest; 2) There may be some disciplinary investigations in which the need for secrecy is paramount and the potential harm from premature disclosure is so great that on a showing of specific and articulable facts the investigator may have good cause to seek an order compelling the grievant to keep confidential the investigatory proceedings; and 3) Although grievants are absolutely immune from suit for filing an ethics grievance or making statements within the context of subsequent disciplinary proceedings, they are not immune for statements made outside the context of a disciplinary matter, such as to the media or in another public forum. Accordingly, grievants who falsely smear an attorney in public do so at their own peril and may face defamation actions in appropriate cases. (pp. 28-29)
6. On the subject of retroactivity of the new Rule, the Court finds that full retroactivity would impose an undue hardship on participants who justifiably relied on the old Rule. Although the pre-existing confidentiality Rule shall remain in effect for concluded matters, a purely prospective application of the new Rule would unnecessarily inhibit otherwise free speech. Therefore, the Court holds that the new Rule shall have "pipeline" retroactivity. It shall apply to all future cases and to all matters that are now pending in the attorney disciplinary system. R.M. is entitled to the benefit of this ruling. She is permitted to discuss her grievance against Jane Doe, the subsequent ethics proceedings, and the outcome. (pp. 30-31)
7. 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 fact that a matter was subject to diversion is no longer confidential, but the contents of the diversion agreement are not to be disclosed. Documents that are gathered during the ethics proceedings are not to be released publicly by disciplinary officials except as provide by Rule 1:20-9(a), (i). The Court refers its opinion to the Professional Responsibility Rules Committee to draft appropriate Rule amendments. Until formal amendments have been drafted and approved, the Court's opinion shall serve as interim rules governing the questions of confidentiality addressed herein. (pp. 32-33)
The matter is REMANDED to the Professional Responsibility Rules Committee to draft implementing amendments to Rule 1:20-9.
CHIEF JUSTICE PORITZ, filing a separate CONCURRING opinion in which JUSTICES LONG, ALBIN, and WALLACE join, notes that the question of immunity for grievants, raised by the Professional Responsibility Rules Committee in its report, is not properly before the Court. She believes that the rationale behind the Court's 1984 decision on grievant immunity -- that is, that immunity fosters public trust in our attorney disciplinary system and that it reduces concerns that "non-malicious potential complainants" may be deterred from filing grievances because of a fear of retaliation by the attorney -- is as valid today as it was in 1984. She sees no reason to seek further guidance from the PRRC.
JUSTICE ZAZZALI, filing a CONCURRING opinion in which JUSTICES LaVECCHIA and RIVERA-SOTO join, agrees that the immunity issue was not raised by the parties or by the Court in granting certification of the case. He would, however, remand the matter to the PRRC to provide a detailed basis for its recommendation that immunity be abrogated.
CHIEF JUSTICE PORITZ and ASSOCIATE JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE ZAZZALI's opinion. On the issue of immunity for grievants, CHIEF JUSTICE PORITZ has filed a separate CONCURRING opinion in which JUSTICES LONG, ALBIN, and WALLACE join, and JUSTICE ZAZZALI has filed a separate CONCURRING opinion in which JUSTICES LaVECCHIA and RIVERA-SOTO join.
The opinion of the court was delivered by: Justice Zazzali
In this matter, R.M. challenges the constitutionality of Rule 1:20-9, which mandates that a grievance filed against an attorney remains confidential until a formal complaint is filed. She contends that the rule is an impermissible restraint on free speech because it prevents her from making truthful statements about the ethics process, including the fact that she filed a grievance. R.M. also argues that Rule 1:20-9 unduly suppresses criticism of the system of attorney discipline.
We agree that, as written and as applied, Rule 1:20-9 violates the First Amendment because it is not narrowly tailored to serve a compelling interest. We hold that a grievant may discuss publicly the fact that he or she filed a grievance, the content of that grievance, and the result of the process. Our holding applies retroactively to all grievances currently being processed by the disciplinary system. The confidentiality of concluded matters, however, shall remain in effect.
Plaintiff R.M. retained New Jersey attorney "Jane Doe" to represent her in a legal matter. R.M. subsequently filed a grievance against Doe with the District XIII Ethics Committee (District). The grievance form that R.M. submitted cautioned her that [u]nder Supreme Court Rule 1:20-9(a), once you file this grievance form you are REQUIRED thereafter to keep all communications about this ethics matter CONFIDENTIAL during the investigation until and unless a 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 them to, any other person or agency. However, during the investigation you may not disclose the 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.
During the District's investigation, Doe admitted specific acts of misconduct in connection with her representation of R.M. The District chair determined that Doe had committed minor ethical violations that would likely result in a public admonition and that Doe was therefore eligible for "diversion." Diversion is "a non-disciplinary treatment by consent for attorneys who admit they have committed 'minor' unethical conduct." R. 1:20 (Official Glossary of Attorney Discipline Terms). The District then informed R.M. that, although Doe had accepted diversion, "this matter remains confidential pursuant to . . . [Rule] 1:20-9(a)."
R.M. subsequently sued this Court, the District, the Office of Attorney Ethics (OAE), and Jane Doe, alleging that Rule 1:20-9 violates the free speech provisions of the United States and New Jersey Constitutions by restricting R.M.'s ability to discuss her grievance against Doe. R.M. has indicated that if confidentiality is lifted, she intends to publicize the fact that she filed the grievance, that the chair of the District determined that there was "a reasonable prospect of a finding of misconduct by clear and convincing evidence," and that Doe admitted to minor unethical conduct and entered into a diversion agreement. In particular, R.M. seeks to announce this information at a public meeting of the governmental body on which Doe serves and in other public forums.
Pursuant to Rule 2:12-1, we certified this matter directly to determine whether Rule 1:20-9 is unconstitutional. The State, represented by the Attorney General, submitted a brief on behalf of the Court, the OAE, and the District. The New Jersey State Bar Association (NJSBA) participated as amicus curiae. During the pendency of the litigation, we requested that the Professional Responsibility Rules Committee (PRRC) review the issues raised by the parties, solicit comments from other interested persons and groups, and submit findings to the Court. The PRRC submitted a memorandum and summary letter, in which it recommended that investigations should remain confidential until completed. Although not ...