On May 2, 2005, the New Jersey Supreme Court heard arguments on the Court’sown Lawyer Disciplinary Procedure Rule 1:20-9(a), which has been interpreted to barcomplainants from disclosing the existence of their complaints (under pain of criminalcontempt charges), unless a formal complaint has been issued. Explaining R.M. vs.the Supreme Court of New Jersey, the New Jersey Star-Ledger notes (May 3, 2005,via Legal Ethics Forum):“The rule makes a grievance against a lawyer secret until an ethicscommittee determines it is backed up by reasonable cause and issuesa formal complaint. In the vast majority of cases, that never happens.Either the grievance is dismissed as unfounded or, as happened in R.M’scase, the lawyer agrees to correct a minor ethical lapse and no formaldisciplinary action is taken.” ‘R.M. can never criticize the ethics committee for not doing more regardingher grievance,’ [R.M’s attorney] said. “In a free society, government maynot constitutionally prohibit people from discussing a topic simply to protectpeople’s reputations.”ethicalEsq stated his opposition to such “gag rules” early and often (see post), as has thesubmitted Comments to the NJ Supreme Court, asking the Court to declare the disciplinegag rule unconstitutional as applied to complainants. HALT also suggested commentary andan amendment to Disciplinary Procedure Rule 1:20-9(a) to clarify that the Rule “strictly appliesto disciplinary personnel,” in order to achieve “an important balance between ensuring thoroughinvestigations and permitting grievants to exercise their constitutional right to free speech.”Although Bar Counsel apparently stated at oral argument that “46 other states have the sameconfidentiality rule,” HALT found only eight other states in its 2002 discipline study (Alaska,Arkansas, Georgia, Montana, Nebraska, Nevada, South Dakota and Washington). The HALT Comments stated:“New Jersey is one of only a tiny remaining handful of states that continues todeprive grievants of their right to free expression by prohibiting them from speakingpublicly about their complaints.”“To our knowledge, no state supreme court has upheld a disciplinary gag rule upona grievant’s challenge. In fact, the modern trend has seen several states, includingTennessee, Florida and New Hampshire, strike down their confidentiality requirementson free speech grounds.”[see John Doe v. Jane Doe, 127 S.W.3d 728, 731 (Tenn Sup. Ct., 2004); Petitionof Brooks, 678 A.2d 140, 143 (N.H. 1996); Doe v. Supreme Court, 734 F. Supp.981, 985 (S.D. Fla. 1981)]In Tennessee, the existence of a complaint could not be disclosed unless public discipline wasimposed. As we posted in Feb. 2004, the Tennessee Supreme Court rejected all reasonsadvanced by Bar Counsel in defense of the rule on free speech grounds. Here are excerptsfrom John Doe v. Jane Doe, (2004):– “We conclude that the three interests advanced by the Attorney General –protection of reputation of an attorney and the Bar from meritless complaints,protection of anonymity of complainants and other persons supplying informationto the Board, and maintenance of the integrity of pending investigations – whilelegitimate, are not sufficiently compelling to justify the restriction on free speechby section 25, particularly considering the broad scope of its confidentialityrequirement.”– “[W]e conclude that to the extent a legitimate interest in reputation is at stakein requiring confidentiality under section 25 of Rule 9, such interest should not berecognized as compelling. Assuming arguendo that protection of reputation fromfrivolous complaints constitutes a compelling state interest, a confidentiality provisionprecluding the disclosure of both frivolous and non-frivolous complaints is not sufficientlynarrowly tailored to meet such interest.”– “The interest of promoting meritorious complaints and assistance in investigationscould be advanced by permitting and encouraging confidentiality, not requiring it.”– “The idea that the suppression of truthful criticism of lawyers would somehowenhance or protect the reputation of the Bar is not persuasive. To the contrary,continuing the prohibitory effect of the Rule after a grievance against an attorney isfound to be meritorious is far more likely to engender suspicion than fosterconfidence.”There’s no excuse for such disciplinary gag rules. Take a look at the Doe case from Tennessee,if you need further persuasion. Remember to subsitute the name of another profession, if you’rea lawyer who doesn’t want to give up our Family’s little penchant for secrecy.To the N.J. Court and Bar: “Please give up the decoder rings and pinky rings. Secrecy breeds contempt, not respect. No More Omerta.”p.s. The same goes for Alaska, Arkansas, Georgia, Montana,Nebraska, Nevada, South Dakota and Washington, which havesimilar gag rules — and the 27 state grievance committees thatstrongly advise or request consumers to keep their grievances secret.update (Sept. 2005): The New Jersey Supreme Court has concluded that theGag Rule is unconstitutional. See our post.after the big flocksilencegeese flying norththe village of nondrinkersis silent . . .plum blossoms
May 4, 2005
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