THE NEW JERSEY BARTENDER
Information on New Jersey’s Attorney Disciplinary System

West Milford re-enacts its Attorney Accountability Ordinance.
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At its March 28, 2007 meeting, the West Milford (Passaic County, New Jersey) Township Council, by a 4 to 2 vote, repealed its one-of-a-kind “Attorney Accountability Ordinance.”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 The new version of the ordinance is here, and the old version (i.e. the one that was repealed) is here.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

THE NEW JERSEY BARTENDER
Information on New Jersey’s Attorney Disciplinary System

BRIEF OVERVIEW OF THE DISCIPLINARY PROCESS
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The New Jersey Supreme Court is in charge of disciplining attorneys. The Supreme Court has established seventeen District Ethics Committees (DEC) each with jurisdiction over a certain geographical area of the state. For example, the District VII Ethics Committee handles grievances against attorneys practicing in Mercer County. In addition, the Supreme Court has established a statewide Office of Attorney Ethics (OAE) which handles more serious matters such as attorneys who have committed crimes, and a Disciplinary Review Board (DRB) which reviews and hears appeals of ethics cases.

Together, the DECs and the OAE constitute the first tier of New Jersey's three-tier disciplinary process. They receive grievances from the public, screen them, and, if appropriate, docket and assign them out to an attorney member for investigation. If it is determined that attorney misconduct can be proven by "clear and convincing evidence," the DEC or OAE files a formal complaint against the subject attorney. If it is determined that misconduct cannot be so proven, the matter is dismissed. (In “minor misconduct” cases, ethics authorities and a lawyer agree to “divert” the matter. In such a case, the lawyer agrees to punishment but no information relating to the matter—even its existence—is ever released to the public)

The OAE and DECs also establish hearing panels that try contested matters. At the conclusion of a hearing, the panel may either dismiss the complaint, or, if it finds that the lawyer is guilty of misconduct, it will recommend discipline. In order of severity, discipline can be 1) a public admonition, 2) a reprimand, 3) a term of suspension or 4) disbarment.

The second tier of the process involves the Disciplinary Review Board (DRB). The DRB will hear appeals by grievants whose grievances were dismissed at the investigative or complaint stage. The DRB will also review the level of discipline recommended by OAE or DEC when attorney misconduct is found. If the DRB finds that public admonition is proper and adequate, it issues the letter of admonition. In other cases, the DRB reviews the case and makes its written recommendation to the Supreme Court.

The third and final tier of the process is review by the New Jersey Supreme Court. Except for disbarment cases, where there is an automatic right to Supreme Court review, the decision of the DRB becomes final thirty days after it is filed with the Supreme Court.

CONFIDENTIALITY

Prior to March 1, 1995, the public was virtually excluded from the state Supreme Court's attorney disciplinary process. Although the public was advised when an attorney was disbarred, suspended or subjected to severe disciplinary sanctions, the majority of disciplinary matters were disposed of with "private reprimands" which were kept strictly confidential.

On March 1, 1995, the Supreme Court abolished the "private reprimand" and opened the process up a bit to the public. Although there is still a large amount of secrecy retained by the new rules, the new system is better. It now opens the disciplinary records to the public, after a formal complaint has been filed, and permits the public and press to witness disciplinary hearings.

It is important to recognize the difference between a "complaint" and a "grievance." A "grievance" is what a member of the public sends to a DEC or OAE complaining about unethical conduct of an attorney. A "complaint" is filed by DEC or OAE after a "grievance" is received from a member the public and investigated. Up until the DEC or OAE files its complaint, the fact that a grievance has been filed may not be revealed--even by the grievant. For more information on this self-serving "gag rule" please click here.

Curious procedures at the Disciplinary Review Board.

I have found some discrepancies between two versions of the Disciplinary Review Board’s (DRB) 2007 “docketing report” that show that either a) the DRB is allowing cases, after receipt, to languish in its office or b) backdating cases.

Click HERE for the 2007 Docketing Report.

Click HERE for my inquiry to Chief Justice Rabner regarding the discrepancies.

Click HERE for a response from the Disciplinary Oversight Committee.

Click HERE for the March 28, 2008 letter from Supreme Court Clerk Stephen W. Townsend.

Stay tuned!