Office of Attorney Ethics May Investigate Grievance That District Ethics Committee Had Declined to Docket

Robertelli v. New Jersey Office of Attorney Ethics, 224 N.J. 470 (2016).  As today’s decision by Chief Justice Rabner describes in exquisite detail, the Supreme Court has established two different bodies to regulate attorneys:  the District Ethics Committees (“DECs”) and the Office of Attorney Ethics (“OAE”).  Today’s ruling addresses the interplay between those two agencies, which are both governed by Rule 1:20.

The DECs, made up of volunteers, serve defined geographical areas.  Appeals from DECs, where permitted, go to the Disciplinary Review Board (“DRB”).  Each DEC has a Secretary, who must be a licensed attorney.  The Secretary receives all grievances filed in the relevant geographic area.  If the grievance alleges facts that, “if true, would constitute unethical conduct,” the Secretary must docket the grievance.  If the grievance does not allege such facts, and provided that a public (non-attorney) member of the DEC agrees, the Secretary shall decline to docket the grievance.  The Secretary does not do any investigation but acts, or declines to act, based on the face of the grievance.  Importantly, Rule 1:20-3(e)(6) provides that “[t]here shall be no appeal” of a Secretary’s decision not to docket a grievance.

The two plaintiffs in today’s case, who were attorneys defending a personal injury case, caused a paralegal in their office to “friend” the plaintiff, Dennis Hernandez, on Facebook in order to gather information about Hernandez that was not otherwise available.  When Hernandez learned about that, he filed a grievance with his local DEC.  The DEC Secretary decided that the facts did not merit docketing the grievance.  Hernandez then went to the OAE.

The OAE is a central agency staffed by full-time professionals.  The OAE has broad power to investigate and prosecute alleged attorney misconduct, and grievants can bring their complaints directly to the OAE instead of to a DEC.  The OAE Director proceeded to file a complaint against the lawyers in the applicable DEC.

Plaintiffs sued in Superior Court, seeking to enjoin the OAE from proceeding.  Plaintiffs’ primary argument was that Hernandez’s resort to the OAE was “tantamount to an impermissible appeal” of the DEC Secretary’s decision not to docket the grievance, relying on Rule 1:20-3(e)(6), the rule that bars appeals of a DEC Secretary’s decision not to docket grievances.  The court determined that it lacked subject matter jurisdiction because the New Jersey Constitution gives the Supreme Court (and its ethics arms, the OAE and DECs) exclusive authority over ethics matters.  The Appellate Division agreed and affirmed.  Today, the Supreme Court upheld those rulings.

Unlike prior cases in which the Superior Court had “on occasion interpreted disciplinary rules to resolve an issue in a non-disciplinary matter,” this case entailed an effort “to bar the OAE from prosecuting a disciplinary matter.”  That was an issue over which the Supreme Court had exclusive jurisdiction, so the Superior Court properly declined to act on it.  But Chief Justice Rabner recognized that the case presented “an important question about the authority of the OAE Director and the functioning of the disciplinary system.”  Accordingly, the Court relaxed the rules, in the interest of justice, to address that legal issue.

In addressing the merits of the issue, the Chief Justice relied on standard principles of interpretation.  Plain language governs, and Court Rules are to be read together “as a unitary and harmonious whole.”  When read in context, Rule 1:20-3(e)(6) did not bar what happened here.  Chief Justice Rabner concluded that the appeal ban referred to appeals to the DRB, the normal place to appeal from the DECs.  The OAE was not a body to which appeals from DECs could be taken, so “a letter to the OAE [like that of Hernandez] is not an ‘appeal'” that is barred by Rule 1:20-3(e)(6).

The plain language of the applicable rules resolved the issue and obviated the need to resort to extrinsic evidence.  Nonetheless, the Court reviewed at length the extrinsic evidence that plaintiffs had cited and determined that it did not alter the result.

The underlying conduct of “friending” an adverse party in order to get access to information about him engendered a “novel ethical issue.”  The Chief Justice observed that there was no caselaw on that subject.  It would disserve the interest of protecting the public, the Court concluded, if the decision of a DEC Secretary not to docket a grievance about such a novel issue could foreclose the OAE, which unlike the DECs is staffed by professionals, from considering a complaint brought to it about that novel issue.  Today’s decision is eminently correct.