The OAE may investigate a grievance after a DEC secretary has declined to docket the matter

Law Lessons from Robertelli v. N.J. Office of Attorney Ethics, __ N.J. __ (2016), Nos. A-62 September Term 2014, April 19, 2016:

New Jersey has a robust disciplinary system designed to address allegations of attorney misconduct and protect the public. The process relies on both a large group of dedicated volunteers, who serve on local District Ethics Committees (DECs), as well as full-time professionals employed by the Office of Attorney Ethics (OAE).

The Court has created various entities to assist in its disciplinary role. Most pertinent to this case, they include the DECs, the OAE, and the Disciplinary Review Board (DRB). They are “arms of the [C]ourt,” and a filing with them “is in effect a filing with the Supreme Court.” Toft v. Ketchum, 18 N.J. 280, 284 (1955) (discussing county ethics and grievance committees); see also Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 433, 102 S. Ct. 2515, 2522, 73 L. Ed. 2d 116, 125 (1982). To guide attorneys and the public, the Court has also adopted rules that outline the attorney disciplinary process. See R. 1:20.

The system as a whole is designed to foster a fair and effective process that enables the public to voice complaints about attorney behavior, empowers investigatory bodies to review and thoroughly investigate grievances, gives attorneys an opportunity to respond to allegations and defend themselves with vigor, and, in the end, protects the public from unethical conduct by unfit lawyers. See In re Cammarano, 219 N.J. 415, 420 (2014). Through those efforts, the disciplinary scheme helps “promote public confidence in [the] legal system.” In re Gallo, 178 N.J. 115, 122 (2003).

In general, two entities have the authority to investigate and prosecute grievances against attorneys licensed in New Jersey: the DECs and the OAE. R. 1:20-3; R. 1:20-2(b). Unlike states that have a fully centralized disciplinary system, New Jersey uses a hybrid approach with a central OAE and local DECs in each vicinage. A grievance may follow either of two paths; the more common course starts in the DEC, the other begins in the OAE.

Another body plays an important role in the review process. The DRB sits as an “intermediate appellate tribunal in disciplinary matters.” See R. 1:20; R. 1:20-15. The Supreme Court, consistent with the constitutional mandate, is the final arbiter of ethics matters. See R. 1:20-16.

The roles of each entity require a more detailed explanation. The DECs “screen, investigate, prosecute, and hear disciplinary” matters. R. 1:20. Each vicinage has one or more DECs, which serve a “defined geographical area.” R. 1:20-3(a). DECs have no fewer than eight volunteer members, at least four of whom must be attorneys and two of whom must be laypeople. Ibid.

The Director, after consultation with the committee chair, appoints a Secretary for each DEC. R. 1:20-3(c). Secretaries must be licensed attorneys, and they receive and review all grievances on behalf of the DECs. R. 1:20-3(c)-(e). When the facts alleged, “if true, would constitute unethical conduct” under the RPCs, a Secretary must docket the grievance. R. 1:20-3(e)(1). On the other hand, when the facts alleged, “if true, would not constitute unethical conduct,” the Secretary shall decline to docket the grievance, provided a public member agrees. R. 1:20-3(e)(3). No investigation is done in the latter case; the Secretary reviews only the face of the complaint.

It appears that DEC Secretaries decline to docket the majority of grievances submitted. A 1993 report from the New Jersey Ethics Commission noted that as many as eighty percent of grievances were not docketed. Report of New Jersey Ethics Commission, at 75 (February 26, 1993) (Michels Commission Report). A Secretary’s decision to decline to docket a grievance cannot be appealed to the DRB. See R. 1:20-3(e)(6).

When a Secretary dockets a grievance, the DEC chair assigns an attorney member to investigate the matter. R. 1:20:3(g)(1). After the investigator presents a written report and recommendation, the chair may file a complaint, R. 1:20-3(i)(3)(B), request that the Director approve an agreement in lieu of discipline for minor unethical conduct, R. 1:20-3(i)(2)(B)(i), or dismiss the charge, R. 1:20-3(h). If the chair decides to dismiss a grievance after an investigation, either the Director or the grievant may appeal the decision to the DRB. R. 1:20-3(e)(6); R. 1:20-3(h); R. 1:20-15(e)(1), (2).

The Court created the OAE in 1984, as part of “the increased centralization of the disciplinary system.” See Kevin H. Michels, New Jersey Attorney Ethics, § 42:1 at 1062-63 (2016). The OAE is staffed by full-time professionals. Both the OAE and its Director have broad authority under the rules both to administer the disciplinary system and to investigate and prosecute allegations of attorney misconduct. See R. 1:20-2.

The Director, whom the Court appoints, has “all of the investigative and prosecutorial authority” of the DECs. R. 1:20-2(b). Under the rules, he has discretionary authority to “investigate any information coming to the Director’s attention, whether by grievance or otherwise.” R. 1:20-2(b)(2). The Director also has exclusive investigative and prosecutorial jurisdiction in certain areas, including serious, complex, or emergent matters, R. 1:20-2(b)(1)(A), as well as any case the DRB or the Court assigns to the Director, R. 1:20-2(b)(1)(E). The Director can appeal to the DRB a decision by the DEC chair to dismiss a matter after investigation without the filing of any charges, or a decision to dismiss after a hearing. R. 1:20-15(e); R. 1:20-3(h).

Disciplinary proceedings may also begin at the OAE. A grievant can raise an ethics complaint directly with the Director. See R. 1:20-2(b)(2); Baxt v. Liloia, 155 N.J. 190, 211 (1998) (noting that attorneys can report unethical behavior either to OAE or local DEC to satisfy RPC 8.3(a) and “inform the appropriate professional authority”).

When a DEC chair or the Director files a complaint after an investigation, the matter proceeds before a hearing panel of three DEC members, R. 1:20-6(a)(1), or a special master, R. 1:20-6(b)(3). Respondents receive written notice during the investigative phase under Rule 1:20-3(g)(2), and written notice of the hearing under Rule 1:20-6(c)(2)(A). They may appear at the hearing with counsel, cross-examine witnesses, and present evidence. Ibid. After the hearing, “[i]f the trier of fact finds that there has been no unethical conduct,” the complaint is dismissed. R. 1:20-6(c)(2)(E). Once again, the grievant or Director may appeal that decision to the DRB. R. 1:20-15(e)(1), (2). The panel or special master may also recommend an admonition, reprimand, censure, suspension, or disbarment. R. 1:20-6(c)(2)(E).

The DRB — “the intermediate appellate tribunal in disciplinary matters,” R. 1:20 — is a nine-member body of lawyers and laypeople. R. 1:20-15(a). Its primary role is to review recommendations for discipline and appeals from findings of no unethical conduct. R. 1:20-15(e), (f). This Court reviews all recommendations for disbarment, R. 1:20-16(a), and may review any other determination by the DRB, R. 1:20-16(b).

Under the State Constitution, the Court has jurisdiction over attorney discipline matters. N.J. Const. art. VI, § 2, ¶ 3. The Court’s responsibility in this area is exclusive. In re LiVolsi, 85 N.J. 576, 583 (1981) (citing Rush, supra, 46 N.J. at 411-12).

The Superior Court can consider challenges to the constitutionality of a disciplinary rule. In re Felmeister, 95 N.J. 431, 444 (1984). But the Superior Court lacks jurisdiction over the regulation of the Bar and matters that intrude on the disciplinary process. See LiVolsi, supra, 85 N.J. at 596-97 (finding no right of review of determination of fee arbitration committee, via prerogative writ action in Superior Court, because Constitution grants Supreme Court “plenary authority to regulate the Bar”); O’Boyle v. District I Ethics Committee, 421 N.J. Super. 457, 473-74 (App. Div.) (rejecting constitutional challenge to Rule 1:20-3(e)(6) and noting “[i]t would make little sense to allow the Superior Court, Law Division, to review a decision of a district ethics secretary” in light of language of rule and reasoning in LiVolsi), certif. denied, 208 N.J. 601 (2011); GE Capital Mortg. Servs., Inc. v. N.J. Title Ins. Co., 333 N.J. Super. 1, 2-3 (App. Div. 2000) (holding Fund for Client Protection could “not be sued in Superior Court by a disappointed claimant”).

Nonetheless, the Superior Court has on occasion interpreted disciplinary rules to resolve an issue in a non-disciplinary matter. See, e.g., Eichen, Levinson, & Crutchlow, LLP v. Weiner, 397 N.J. Super. 588, 598 (App. Div.) (interpreting Rules 1:20-19 and 1:20-20 to determine whether firm that received referrals from disbarred attorney was required to remit referral fees to attorney-trustee managing disbarred attorney’s practice), certif. denied, 195 N.J. 418 (2008); State v. Stroger, 185 N.J. Super. 124, 131-33, 136 (Law Div. 1981) (interpreting confidentiality provision of former Rule 1:20-5 and denying motion to suppress evidence that DRB gave to prosecutor’s office), aff’d, 97 N.J. 391, 413 (1984). In none of those cases, however, did the courts intervene in the operation of the ethics system or the discipline of an attorney.

The OAE may investigate a grievance after a DEC secretary has declined to docket the matter.

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