Tuesday, April 19, 2016

Bar May Proceed In "Friending" Without Disclosure Matter

The New Jersey Supreme Court has issued an opinion in a matter brought to head off a bar prosecution.

In so doing, the unanimous court affirmed the broad authority of the Office of Attorney Ethics to proceed notwithstanding a decision to not investigate a complaint rejected at intake by a district ethics committee.

The particular matter at issue involved friending an adverse party to uncover helpful evidence.

The court's summary

In this appeal, the Court considers whether the Office of Attorney Ethics (OAE) may investigate a grievance against an attorney alleging misconduct violating the Rules of Professional Conduct (RPCs) after the Secretary of a District Ethics Committee (DEC) has declined to docket the matter.

The following facts, setting the background of this matter, are derived from the complaint that the OAE filed with the District XIV Ethics Committee, and plaintiffs’ complaint filed in the Superior Court. On March 10, 2007, a police car driven by a sergeant with the Oakland Police Department allegedly struck a pedestrian, Dennis Hernandez. Hernandez claimed that he suffered permanent injuries, and commenced suit against the Borough, the police department, and the sergeant. Plaintiffs, who are attorneys licensed in New Jersey, were employed by the law firm that represented the defendants in the lawsuit. In order to obtain information about Hernandez, plaintiffs directed a paralegal employed by the firm to search the internet. Among other sources, she accessed Hernandez’s Facebook page. Initially, the page was open to the public. At a later point, the privacy settings on the account were changed to limit access to Facebook users who were Hernandez’s "friends." The OAE contends that plaintiffs directed the paralegal to access and continue to monitor the non-public pages of Hernandez’s Facebook account. She therefore submitted a "friend request" to Hernandez, without revealing that she worked for the law firm representing defendants or that she was investigating him in connection with the lawsuit. Hernandez accepted the friend request, and the paralegal was able to obtain information from the non-public pages of his Facebook account.

Hernandez learned of the firm’s actions during discovery in the lawsuit, and objected to defendants’ use at trial of the documents that the paralegal obtained from his Facebook page. He also filed a grievance with the District II-B Ethics Committee, asserting that plaintiffs violated the RPCs by contacting him directly through his Facebook page without first contacting his attorney. The Secretary of the District II Ethics Committee, with the consent of a public member, declined to docket the grievance, having concluded that the allegations, if proven, would not constitute unethical conduct. Hernandez’s attorney then contacted the Director of the OAE (Director) and requested that the OAE review the matter and docket it for a full investigation and potential hearing.

After further investigation, the Director filed a complaint against plaintiffs with the District XIV Ethics Committee. Plaintiffs requested that the Director withdraw the complaint, contending that the OAE was precluded from proceeding after the DEC declined to docket the grievance. The Director refused to withdraw the complaint, and plaintiffs filed a complaint in the Superior Court to enjoin the OAE from pursuing the matter. The trial court dismissed the complaint, holding that the Supreme Court and the ethics bodies that it established have exclusive jurisdiction over attorney disciplinary matters. The Appellate Division affirmed the trial court’s determination in an unpublished decision. This Court granted plaintiffs’ petition for certification. 222 N.J. 15 (2015).

HELD: Consistent with the broad authority that the Rules of Court grant the Director and the important goals of the disciplinary process, the Director has authority to review a grievance after a DEC Secretary has declined to docket the grievance. The OAE may therefore proceed to prosecute plaintiffs’ alleged misconduct.

1. Under the State Constitution, the Supreme Court has exclusive jurisdiction over the admission to practice and the discipline of attorneys. The Court has created several entities to assist in its disciplinary role, including the DECs, the OAE, and the Disciplinary Review Board (DRB). The system in its entirety is designed to foster a fair and effective process that enables the public to voice complaints about attorney behavior, empowers investigatory bodies to review and thoroughly investigate grievances, and gives attorneys an opportunity to respond to allegations of misconduct and defend themselves with vigor. The disciplinary system, structured in this fashion, promotes public confidence in the legal system. (pp. 6-8)

2. The DECs and the OAE are the two entities that have the authority to investigate and prosecute grievances against attorneys licensed in New Jersey. Each DEC has a Secretary, required to be a licensed attorney, who receives and reviews all grievances on behalf of the DEC. The DRB sits as an intermediate appellate tribunal in disciplinary matters; its primary role is to review recommendations for discipline and appeals from findings of no unethical conduct. Consistent with the constitutional mandate, the Supreme Court is the final arbiter of ethics and disciplinary matters. (pp. 8-9; 12)

3. The OAE and the Director have broad authority to administer the disciplinary system and investigate and prosecute allegations of attorney misconduct. Under the Court Rules, the Director has discretionary authority to investigate any information coming to his attention, whether by grievance or otherwise, and also has exclusive investigative and prosecutorial jurisdiction in certain matters. Disciplinary proceedings may also begin at the OAE, and a grievant may therefore raise an ethics complaint directly with the Director. (pp. 10-11).

4. Plaintiffs’ complaint asks the Superior Court to restrain the OAE from taking any action in furtherance of the disciplinary allegations against them. The Court holds that the trial court and the Appellate Division correctly found that the Superior Court lacked subject matter jurisdiction over this direct challenge to the attorney disciplinary process, and reiterates that the Supreme Court has exclusive responsibility in this area. (pp. 14-16)

5. Addressing the question presented in this matter, the Court rejects plaintiffs’ contention that Rule 1:20-3(e)(6) bars the Director from taking further action to review allegations of unethical conduct and file a disciplinary complaint after a DEC Secretary has declined to file a similar claim. The Court states that the Director’s action in that event does not constitute an appeal from action by the DEC, which is not permitted by the Rule. The Court further states that the Rule applies only to appeals to the DRB, rather than to further action by the Director. (pp. 17-21)

6. The Court finds that plaintiffs’ interpretation of Rule 1:20-3(e)(6) to preclude further action by the Director is also contrary to the broad investigative and prosecutorial authority that Rule 1:20-2(b) vests in the Director, and the purpose of the disciplinary rules to protect the public and promote the thorough and fair investigation and defense of allegations of unethical conduct. The Court further states that the Rules do not preclude further inquiry by the Director if a DEC Secretary declines to docket an important, novel issue as to which there is little guidance, or mistakenly declines to docket an allegation of egregious, unethical conduct. The Court finds that the OAE’s discretionary review of grievances that DEC Secretaries do not docket does not conflict with the goals of the Michels Commission, which was formed to examine and recommend changes to the attorney disciplinary system. (pp. 21- 27)

7. The Court concludes that the Director of the OAE retains discretion when appropriate to review a grievance after a DEC Secretary has declined to docket it, but is not required to investigate or formally respond to requests from a grievant to pursue a matter that a Secretary has not docketed. (pp. 27-28)

The judgment of the Appellate Division is AFFIRMED.

It is definitely in the public interest to uphold the broad investigative and prosecutorial authority of disciplinary counsel. (Mike Frisch)

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