New Jersey Supreme Court removes "gag order" on lawyer ethics complaints

Thursday, October 20, 2005
Star-Ledger Staff

Unanimously declaring one of its own rules unconstitutional, the New Jersey Supreme Court yesterday freed clients to talk about ethics complaints they file against their lawyers.

The rule -- which in effect gagged most complaining clients forever, and others until an ethics investigation was completed -- violated their right of free speech, the justices said.

"Protecting the reputations of attorneys and the bar does not justify restricting a grievant's speech, and, in fact, such restrictions breed resentment rather than respect," Justice James Zazzali wrote for the court.

The ruling allows clients to make public pending ethical complaints against their lawyers, although complaints already resolved will remain confidential.

"This is a major free speech victory," said Montclair lawyer Richard Gutman, who argued before the court that a 1994 revision of the lawyer disciplinary process did not go far enough. "The court held that in a free society, the government should not gag people from discussing a particular topic."

John Paff, who runs "The New Jersey Bartender," a Web site on disciplined lawyers, said he expects the ruling to shed light on whether ethics committees routinely downgrade serious charges to minor ones.

"We're going to be able to see if the ethics system is actually working as advertised," Paff said.

Said Stuart Hoberman, president of the New Jersey State Bar Association: "We're concerned this could really result in publicizing unsubstantiated and very minor grievances to the detriment of attorneys."

In 1994, the court ruled that formal ethics complaints must be publicized, but one important aspect of secrecy remained: Clients were told they could not publicly disclose their grievances until an ethics committee had reviewed them and determined they warranted a formal complaint.

But in roughly nine out of 10 cases, no complaint was filed. Either the case was dismissed or the lawyer agreed to "diversion" by admitting minor ethical violations and promising to take corrective action. In those cases, the gag on the client lasted forever.

That "permanent wall of silence" is even tougher than grand jury secrecy, Zazzali said. He noted that among 70 regulated occupations in New Jersey, only lawyers enjoy such protection.

In lifting the gag rule, Zazzali cautioned that "grievants who falsely smear an attorney in public do so at their peril and may face defamation actions in appropriate cases."

There is a big incentive for clients to wait for the ethics board to announce charges: By doing so, they have complete immunity against being sued. By a separate vote of 4-3, the justices retained that immunity.

In keeping the gag rule on cases that already have been resolved, Zazzali said it would be unfair to witnesses who had been promised confidentiality to retroactively remove it. It also would be unfair to lawyers who admitted minor ethical lapses in the expectation they would never become public, he said.

The court made one exception, allowing Gutman's client, Randee Massler of Basking Ridge, to disclose that she had filed an ethics complaint in 2001 against Warren lawyer Michele D'Onofrio for her handling of Massler's divorce. D'Onofrio did not return calls to her office.

According to the ruling, D'Onofrio, identified only as "Jane Doe," admitted "specific acts of misconduct" that the ethics committee chairman found were "minor." Accordingly, D'Onofrio was allowed to enter "diversion" and Massler was told she could never disclose her complaint.

Massler decided to fight the gag order and hired Gutman, who specializes in free speech and open records cases.

Comments (2)

Said this on 8-13-2008 At 01:28 pm
yes very valuable information. it guided clients in proper direction and also alert attorney to restrict themselves from loosing professionalism
Said this on 6-21-2009 At 01:19 pm
Excellent Job

Thank You

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