NJ SUPREME COURT SUED OVER ITS “GAG RULE.”

Protecting attorneys from unfair attacks, or a prior restraint on free speech?

Text Box: UPDATE The Supreme Court’s Professional Responsibility Rules Committee (PRRC) will hold a public hearing on the “gag rule” on Friday, May 21, 2004, 10 a.m. to 12:30 p.m., in the Longwood Garden Room at Bally's Park Place Casino in Atlantic City, New Jersey. Anyone interested in speaking must file a written request with the Clerk of the Supreme Court, Hughes Justice Complex, PO Box 970, Trenton, New Jersey 08625-0970 by no later than April 26, 2004. Anyone interested in submitting written comments for the PRRC’s consideration may send them to the same address so that they are received by May 15, 2004. After the PRRC issues its report, the New Jersey Supreme Court will decide the R.M. v. Supreme Court of New Jersey, et al., (see below for details). The Court's March 10, 2004 order (in Acrobat – PDF) can be viewed by clicking here (Note: all links on this page open a new window)  

 

 

 

 

 

 

 

 

 

 

 

 

The Lawsuit: R.M. v. Supreme Court of New Jersey, et al, Superior Court of New Jersey, Mercer County, Docket No. MER-L-2676-03.

 

On October 14, 2003,  Montclair, New Jersey attorney Richard Gutman filed a lawsuit in Superior Court, Mercer County against the New Jersey Supreme Court and two agencies of the attorney disciplinary system.  The suit challenges the constitutionality of a “gag rule” that prohibits people from telling anyone that they have filed an ethics grievance against a lawyer unless and until disciplinary authorities decide to file a formal complaint against that lawyer.  The full text of the complaint (in Acrobat PDF) can be viewed by clicking here  and Gutman’s summary judgment brief (in Acrobat PDF) can be read by clicking here. (The summary judgment motion was scheduled to be heard by Mercer County Assignment Judge Linda R. Feinberg on April 2, 2004 but on March 10, 2004, the state Supreme Court removed the matter from Feinberg’s jurisdiction.)

 

Gutman’s client, identified in the suit only as “R.M.” filed a grievance against a lawyer in 2001.  The lawyer admitted to misconduct and entered into an “Agreement in Lieu of Discipline” (a  procedure akin to a plea bargain) with state ethics authorities.  Since the disciplinary authorities did not file any formal complaint against the lawyer, R.M. remains subject to the gag rule.  In her suit, she contends that the gag rule is an unconstitutional prior restraint of her First Amendment and state constitutional rights to free speech.  R.M. is an active supporter of Citizens for Justice.

What exactly is the "gag rule" and what law authorizes it?

Through R.1:20-9, the New Jersey Supreme Court has imposed a "gag rule" upon the public. This "gag rule," with limited exceptions, prevents a grievant from disclosing to anyone the fact that he or she has filed a grievance against an attorney.

The court rule states:

1:20-9. Confidentiality; Access to and Dissemination of Disciplinary Information

(a) Confidentiality. Prior to the filing and service of a complaint in a disciplinary matter, or a motion for final or reciprocal discipline, or the approval of a motion for discipline by consent, the disciplinary matter and all written records received and made pursuant to these rules shall be confidential, except that the pendency, subject matter, and status of a grievance may be disclosed by the Director if:

(1) the respondent has waived confidentiality; or

(2) the proceeding is based on allegations of reciprocal discipline or a guilty plea or conviction of a crime, either before or after sentencing; or

(3) there is a need to notify another person or organization, including the Lawyers' Fund for Client Protection, in order to protect the public, the administration of justice, or the legal profession; or

(4) the Supreme Court has granted an emergent disciplinary application for relief; or

(5) the matter has become common knowledge to the public.

* * *

(h) Duty to Maintain Confidentiality. All disciplinary system officials, employees and all participants in a proceeding under these rules shall maintain the confidentiality mandated by this rule, including compliance with any protective order.

The Office of Attorney Ethics has interpreted this "gag rule". The following interpretation appears on that Office's official "Attorney Ethics Grievance Form":

INVESTIGATIVE CONFIDENTIALITY: Under 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 for 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.

Why is the "gag rule" a bad idea?

Suppose you filed a legitimate grievance against an attorney, but the secretary of the District Ethics Committee wrongly rejected it. Under the "gag rule" you would not be allowed to tell anyone, other than employees of the ethics system, of your experience. You could not write a letter to the editor complaining of what happened to you, you could not tell your elected officials. The scope of the "gag rule" is so broad that you couldn't even tell your spouse, unless he or she was also a witness to the alleged attorney misconduct.

A large part of what makes our country "free" is our right to publicly criticize government agencies and speak out against the actions of public officials. There is a strong public policy in New Jersey favoring citizens speaking out and participating in government affairs. For example, the Open Public Meetings Act, N.J.S.A. 10:4-7 states, in part:

The Legislature finds and declares that the right of the public to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies, is vital to the enhancement and proper functioning of the democratic process; that secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society,

By preventing people from speaking about their negative experiences with attorney discipline agencies, the New Jersey Supreme Court has insulated its agencies from public criticism, and has adopted a policy that is diametrically opposed to the Legislature's pronouncement favoring open government.

What do you think the purpose of the "gag rule" is?

At first blush, the "gag rule" would appear to be for the benefit of attorneys. This is true, to some extent. However, our view is that the rule is in place not so much to protect individual attorneys (after all, you are allowed to disclose the "facts underlying your grievance"), but to protect the ethics system itself from public scrutiny and accountability. What better way for a government agency to protect itself than to silence all those who have had a negative experience with it?

How many people are "gagged" by the "gag rule"?

According to the 2002 State of the Attorney Discipline System Report, only about one 5% of all grievances submitted result in formal complaints being filed. The remaining 95% of the grievances filed do not result in a complaint, and are therefore subject to the "gag rule". Based on that report, we estimate that 3,450 grievances were filed in 2002.  The report also confirms that 182 formal complaints were filed that year.  Accordingly, only about 5.2% (i.e. 182 divided by 3,450) of filed grievances resulted in formal complaints.  According to the “gag rule,” each of those rejected grievants are not allowed to speak out about how the ethics process treated them. In short, only those who are satisfied with the system are allowed to speak. The rest are censored. No wonder the Office of Attorney Ethics constantly crows about the effectiveness and integrity of its system. It's easy to boast about a system when your rules have silenced all that have been failed by it.  (for more information on how we arrived at these figures (in Acrobat PDF), please click here.)

Is the "gag rule" constitutional?

Probably not. A federal court in Florida stuck down as unconstitutional a similar, though not identical, version of the "gag rule." See Doe v. Supreme Court of Florida, 734 F.Supp. 981 (S.D. Fla, 1990).  Also, on February 19, 2004,  the Supreme Court of Tennessee struck down that state's "gag rule" on constitutional grounds.  The decision in that case, John Doe v. Jane Doe, can be viewed (in Acrobat PDF) by clicking here. 

To make matters worse, in its 1993 report, the New Jersey Ethics Commission told the Supreme Court that continuing the "gag rule" was probably unconstitutional and, in any event, undesirable from a public policy standpoint. That report may be found in a supplement to the March 15, 1993 New Jersey Law Journal (see 133 N.J.L.J. 905).

Citing cases such as the Doe case, the Report stated "the mere existence of the New Jersey gag rule is yet another source for public criticism and suspicion of a system ostensibly designed for public protection." The Report recommended elimination of the gag rule because "the Commission does not believe that [it] can withstand constitutional scrutiny." 133 N.J.L.J at 913, Supp. 9.

Despite this admonition, the New Jersey Supreme Court decided to keep the "gag rule" on the books.  Hopefully, R.M. v. Supreme Court of New Jersey, et al will bring the “gag rule” to an end.

For news articles regarding  this suit, see Trenton Times, "Lawsuit seeks to end attorney ethics `gag rule,'" Linda Stein, October 21, 2003; Courier News "Lawsuit fights gag on attorney grievances," Crissa Shoemaker, October 15, 2003;  New Jersey Law Journal "Suit Seeks Removal of Gag Rule on Attorney-Ethics Grievants, Mary P. Gallagher, October 20, 2003; ABA Journal eReport, "Suit Wants to Get Complaints Out in the Open," Steve Seidenberg, October 24, 2003; and New Jersey Lawyer "Merit or not, all ethics grievances against lawyers could immediately become public," MichaelAnn Knotts, , October 20, 2003.

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