West Milford re-enacts its Attorney Accountability Ordinance.

At its March 28, 2007 meeting, the West Milford (Passaic County, New Jersey) Township Council, by a 4 to 2 vote, repealed its one-of-a-kind “Attorney Accountability Ordinance.” Then, on October 10, 2007, the same council unanimously passed a new, almost identical ordinance. The new version of the ordinance is here, and the old version (i.e. the one that was repealed) is here.

BACKGROUND

The ordinance, which was enacted on December 10, 2003, was drafted by Citizens for Justice president John Paff. It requires any attorney hired by, or appointed to public office within West Milford to waive confidentiality to that part of his or her disciplinary history that is normally not disclosed to the public. The ordinance also requires that the “Certificate of Ethical Conduct,” which is issued by the Office of Attorney Ethics and contains the normally-secret disciplinary history, be filed with the Township Clerk as a public record.

After the ordinance was passed, Paff requested a copy of the “Certificate of Ethical Conduct” of William J. DeMarco, Esq. of Wayne, New Jersey, who was then the West Milford Township Attorney, and who has since passed away. After Township Clerk Kevin J. Byrnes refused to give Paff anything more than a heavily redacted version of DeMarco’s disciplinary history report, Paff, through Montclair attorney Richard Gutman, sued Byrnes in Superior Court.

On October 14, 2004, Assignment Judge Robert Passero dismissed Paff’s complaint and held that West Milford’s ordinance was unconstitutional to the extent that it required public disclosure of the normally-secret attorney disciplinary history. Paff, through Attorney Gutman, has appealed Passero’s ruling.

In a May 25, 2006 published decision, Appellate Division Judge Rudy B. Coleman ruled that a) West Milford’s “Attorney Accountability Ordinance” does not violate the New Jersey Supreme Court’s rules regarding confidentiality of attorney disciplinary matters; and b) the “ethics history report” that contains details of the disciplinary charges against an attorney is “an integral part of the Certificate of Ethical Conduct” and is therefore subject to disclosure to same extent as the Certificate itself. Coleman’s decision, which is reported as Paff v. Byrnes, 385 N.J. Super. 574 (App. Div. 2006), reversed Passero’s October 14, 2004 order dismissing Paff’s complaint and sent the case back to the lower court for further proceedings.

After the case was remanded to the trial court, the Township agreed to provide Paff with an unredacted copy of DeMarco’s ethics history report and to pay Richard Gutman $33,000 in legal fees.

Although its reasons for wishing to repeal the ordinance are not clear, the Council majority claims that it seeking repeal because it lost Paff’s lawsuit and that that had cost the Township nearly $50,000 in legal fees for both Paff’s and the Township’s attorneys.

In a February 8, 2007 article in the West Milford Messenger, Councilman Philip Weisbecker, who was mayor and voted for the ordinance in when it was enacted, was quoted as saying “It (Paff v. Byrnes) opened up the township to litigation that cost the town thousands of dollars. It could open up the township again to another lawsuit and I don't think it's to the benefit of the township." Councilman James Warden noted that it was wrong for Township officials to refuse to obey the ordinance responded that “This ordinance did not cost the township money. The council did.”

At its March 28, 2007 meeting, Township Council repealed the ordinance. The stated reasons for the repeal were disingenuous. Those stated reasons, and John Paff’s rebuttals, were played out in the local papers in the weeks prior to the repeal. To read those articles, click HERE. Click HERE to see a video of the council meeting at which the ordinance was repealed. The video is “tagged” so it’s easy to navigate to the parts of interest. On October 10, 2007, the same council unanimously passed a new, almost identical ordinance.

Click HERE for the redacted and unredacted versions of William J. DeMarco’s Ethics History Report.

Click HERE for a transcript of the October 15, 2004 argument and ruling by Judge Passero.

Click HERE for Paff’s appellate brief, Byrnes’ responding brief and Paff’s reply brief.

Click HERE for the Appellate Division’s decision.

Click HERE for email addresses so that you can contact the Township Council