On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2597-09.
The opinion of the court was delivered by: J. N. Harris.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 17, 2010 - Decided:
Before Judges Axelrad, R. B. Coleman and
The opinion of the court was delivered by AXELRAD, P.J.A.D.
Rule 1:20-3(h) provides that in cases where a grievance that was found by the district ethics committee to allege unethical behavior was docketed and dismissed following an investigation, a grievant may appeal that decision to the Disciplinary Review Board ("Board"). In contrast, Rule 1:20-3(e)(3) allows the secretary of a district ethics committee to decline to docket a grievance against an attorney which the secretary, with the concurrence of a public member, has determined fails to allege conduct violative of the Rules of Professional Conduct ("RPC"). The issue presented in this appeal is whether Rule l:20-3(e)(6), which precludes an appeal of an undocketed grievance, violates a grievant's right to due process or equal protection of the laws. As the plaintiff-grievant fails to assert a viable constitutional basis for his challenge, we affirm the Law Division's dismissal of his complaint.
Plaintiff Martin O'Boyle filed a grievance with the District I Ethics Committee ("the Committee").*fn1 Pursuant to Rule 1:20-3(e)(3), the grievance was declined by the Secretary, with concurrence by a designated public member, based on a decision that the facts stated in the grievance, if true, would not constitute unethical conduct. On October l4, 2009, plaintiff filed a three count complaint in the Law Division against the Committee, Charles Centinaro in his official capacity as the Director of the Office of Attorney Ethics (OAE), and the New Jersey Supreme Court, captioned in lieu of prerogative writs, declaratory judgment, and the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-2. The Law Division granted defendants' motion to dismiss pursuant to Rule 4:6-2(e) on April 16, 2010. Plaintiff appealed. On November 12, 2010, the Supreme Court denied plaintiff's application for direct certification. R. 2:12-2.
Plaintiff and his wife were involved in a dispute over an unpaid bill with an electrician who performed work at their Longport home. On September 19, 2006, James Swift, an attorney for the electrician, sent a letter to plaintiff's attorney, stating an intention, if plaintiff did not promptly pay the debt, to file a construction lien and notify Longport officials that plaintiff performed work on the property without the proper construction permits. Plaintiff refused to accede to the attorney's demand for payment.
After receipt of Swift's letter, Longport officials filed municipal court complaints against plaintiff. Plaintiff represents he prevailed, but ultimately incurred over $100,000 in attorney and expert fees.
Plaintiff then filed a grievance against Swift with the Committee, claiming Swift violated various RPCs, "notably 3.4(g), by threatening criminal charges against the O'Boyle family in order to gain an advantage in a civil contract matter."*fn2 He included a recitation of the facts, certification of his attorney who was the recipient of the letter and phone call from Swift, and a copy of Swift's letter to Longport.
By letter of April 14, 2009, Fredric L. Shenkman, Esquire and Dr. Larry Nutt,*fn3 the Secretary and public member of the Committee, respectively, advised plaintiff of their review of the grievance and conclusion that, even if proven, plaintiff's allegations would not constitute unethical conduct. Accordingly, pursuant to Rule 1:20-3(e)(3), the grievance was declined, and the file was closed.
Plaintiff's counsel subsequently wrote the Secretary, arguing the threat of prosecution by way of municipal ordinance in the municipal court was a "criminal" prosecution threat within the meaning of RPC 3.4(g), citing case law and Supreme Court Advisory Committee opinions. The Secretary and public member again conferred, and by letter of June 2, 2009 and e-mail of September 21, 2009, Shenkman provided plaintiff's counsel with further explanation of the decision and advised there would be no investigation, respectively.
Plaintiff filed suit against defendants, asserting in his action in lieu of prerogative writs count that the Secretary's and Committee's policy of relying on the criminal code - "Title 2C" - to establish the scope of attorneys' ethical responsibilities and the resulting refusal to accept jurisdiction over plaintiff's grievance was arbitrary and capricious and an abuse of discretion, and the other defendants "should not condone and are without powers to authorize district ethics committees to establish policies inconsistent with the intent and spirit of the RPCs or prior ethics opinions." Accordingly, plaintiff sought to compel the Committee to accept jurisdiction over his grievance, interpret RPC 3.4(g) "according to its plain purpose of prohibiting threats of prosecution to influence civil matters," and refrain from "arbitrarily and erroneously relying upon the criminal code to determine the scope" of Swift's ethical responsibilities. Plaintiff also sought to enjoin "all policies existing on any level of the attorney ethics system that allows local committees [to] establish their own standards regarding the interpretation of RPC 3.4(g)."
In his second count, plaintiff sought both a declaratory judgment against defendants as to the scope of RPC 3.4(g) and the conduct which it is directed to punish, and an award of attorneys' fees and costs. In his third count, plaintiff alleged his substantive due process rights under the CRA to pursue attorney discipline grievances were violated by the Committee's refusal to accept his grievance against Swift. Plaintiff sought to enjoin the Secretary from declining jurisdiction over his grievance, and an award of attorneys' fees and costs.
Defendants filed a motion to dismiss pursuant to Rule 4:6-2(e). At oral argument on April l6, 2010, Judge Linda Feinberg framed the parties' positions as follows:
Defendant[s] argu[e:] (1) the [c]court lacks jurisdiction to review a decision of the [C]committee or to compel the [C]committee to prosecute a grievance, (2)  plaintiff has no constitutional right to have [the] [C]committee review his grievance, and (3)  defendants have immunity with respect to plaintiff's request.
In opposition, plaintiff concedes that he has no constitutional right to have his grievance heard by the committee, but is arguing that there should be some appellate process -- and I believe he used the term there shouldn't be [a] single gatekeeper --but there should be some mechanism of appeal.
Plaintiff's attorney articulated his arguments and clarified his constitutional challenge as follows:
One, O'Boyle does not have a constitutional right to prosecute Swift through this Court. That's what I meant in the brief. He does have a constitutional right to a substantive due process in the grievance procedure, that's the distinction that's being drawn. That's my first point.
The second point is, a law suit is a poor substitute for policing attorney ethics, and every opinion that you read usually runs against that parameter. So, I'm uncomfortable with that. And the third and final point that I was hoping to get the Court to address was there's the Felmeister*fn4 decision from the Supreme Court that encourages attorneys to bring declaratory judgment actions about the rules . . . .
In dismissing the case, Judge Feinberg said the Supreme Court, within its judgment under the Constitution, had set up a specific mechanism allowing the secretary to accept grievances or to reject grievances with no appeal, and she did not have jurisdiction to change that procedure. She explained:
I'm a trial judge, the Supreme Court through a fairly elaborate process of review, public comment - when they changed that rule it went out for public comment, and they have vested at this local level, without authority, and there's no appeal. I don't have any authority to change that, or enjoin that process. . . . I don't have jurisdiction to change that.
The judge observed that plaintiff's request for greater appellate rights than he was entitled under Rule 1:20-3(e)(6) would be more properly addressed by a request to the Supreme Court Committee with jurisdiction over the ethics rules for a modification of the current procedure.
The court was not persuaded that plaintiff's inability to appeal the Secretary's decision violated his due process rights, elaborating:
Well, I think he had a process. He presented his grievance, presented the letters. The secretary who holds a very significant position in the district ethics process reviewed it, was disinclined to accept it, decided to confer with a public member. There was a three-month lapse. I assume there was an opportunity to discuss and review, and made a decision.
So there was a process, and there was a result and there was an opportunity. It's just that the result is not something that your client agrees with and you believe there should be a second level. It's just if, like if the Legislature had adopted a statute and there should have been an appeal, but there is no appeal, I couldn't change that. You could certainly advance your argument, you know, down the street, but it's really sort of the same thing. There was no absence of a due process mechanism here, it was just more limited in focus, and ...