On August 2, 2000, Citizens for Justice wrote to the Professional Responsibility Rules Committee complaining about District Ethics Committee secretaries improperly applying R.1:20-3(e)--a New Jersey Court rule--when screening ethics grievances against attorneys that are received from members of the public. The exact nature of the secretaries' flawed screening procedure and the new standards, effective October 1, 2000, are detailed below.

If your grievance was declined under the improper standard, we encourage you to resubmit it to the secretary, asking him or her to apply the new, October 2000 standards.

Under either the old or new standard, a District Ethics Committee secretary--always a lawyer--is allowed to "screen out" or reject an ethics grievance if it meets certain criteria. Those grievances that are not screened out are assigned a docket number and investigated by a volunteer attorney.

Most of the secretary's screening criteria are rather cut and dried. For instance, a secretary is required to screen out a grievance when it's a matter "regarding advertising . . . within the jurisdiction of the Committee on Attorney Advertising" or if "the attorney is not subject to the jurisdiction of the Supreme Court of New Jersey."

However, not all of the criteria are so straightforward. One rule--R.1:20-3(e)--allows a secretary to reject a grievance "if the facts alleged in the inquiry or grievance, if true, would not constitute misconduct."

To correctly apply this standard, the secretary is supposed to look at the grievance, assume that all the facts alleged in it are true, and then decide whether those facts add up to a violation of the Rules of Professional Conduct. If the alleged facts add up to a violation, then the secretary is supposed to docket the grievance and pass it along to an investigator. If the alleged facts--all assumed as being true--don't constitute a violation, then the secretary is supposed to reject the grievance. What's important to understand is that this standard does not allow a secretary to weigh the facts alleged in a grievance and determine whether they are true or false.

Unfortunately, some secretaries were not (and probably still are not) applying this standard correctly. Instead of determining whether the facts--assumed as being true--add up to a rule violation, these secretaries correspond with the attorney who is the subject of the grievance and ask for his or her version of the facts. Then, the secretary will make a determination on the merits of the grievance and reject the grievance if the secretary doesn't believe the grievant's factual allegations.

Reaching the merits in this fashion requires the secretary to determine the truth or falsity of a grievant's allegations. This goes way beyond the secretaries' limited screening function. Since the court rules specifically provide that "there shall be no appeal from a [secretary's] decision to decline a grievance. . .", the grievant whose grievance is screened out under this improper standard is left with no remedy.

The docketing standards adopted on October 1, 2000 have somewhat clarified the screening function. Under the new standards, the secretary is not supposed to correspond with the attorney who is the subject of the grievance unless the grievance is unclearly written. Additionally, even if the secretary does correspond with the attorney, the grievant must be provided with a copy of the attorney's response and given ten days to reply to that response before the secretary makes his or her docketing decision.

Hopefully, this new standard will result in fewer grievances being improperly screened out.