Crime & Federalism

John Gotti's violent acts went unpunished because, in organized crime, there was a code of silence,  an omerta.  Sadly, New Jersey lawyers learned something from their unsavory neighbor. (Omerta in New Jersey.)  They now seek to cover-up lawyer misconduct - no matter how outrageous.

Under New Jersey Rule 1:20-9(a):

Prior to the filing and service of a complaint in a disciplinary matter, or a motion for final or reciprocal discipline, or the approval of a motion for discipline by consent, the disciplinary matter and all written records received and made pursuant to these rules shall be confidential....

Under this rule, clients are prohibited from telling anyone - even family members - that they filed a complaint against a lawyer.  The law is being challenged:

In a case in which it is the defendant, the New Jersey Supreme Court heard arguments yesterday on the constitutionality of its rule prohibiting clients from publicly discussing ethics complaints they file against their lawyers.

Montclair lawyer Richard Gutman told the justices that rule violates the free speech rights of his anonymous client, who had filed an ethics complaint against a different lawyer and is banned from telling even her family about it.

I hope First Amendment experts will opine, but it seems clear that strict scrutiny should apply.  First, the law is a prior restraint. Second, the law is a content-based restriction on speech, namely, it prohibits all ethics complaint-related speech.  Prior restraints and content-based restrictions on speech are subject to strict scrutiny, which means they must be narrowly tailored to a compelling government interest.

I'm not sure that shielding lawyers' from bad publicity is a compelling state interest.  Someone might ask: Why stop there? Shouldn't exonerated criminal defendants be entitled to privacy.  After all, an innocent defendant - forever be branded with the letter T for getting off on a technicality - is in much worse a way than a lawyer who defeated a frivolous claim.  Yet I doubt many would argue that other public proceeding should remain private.

Even if shielding lawyers - but no other professionals - were a compelling state interest, the law is not narrowly tailored.  As the article indicates, clients are prohibited from discussing cases even where "the lawyer agrees to correct a minor ethical lapse and no formal disciplinary action is taken."  In other words, even when the lawyer acted unethically, the client is prohibited from discussing his conduct.  Thus, the law is overinclusive since, in attempting to keep frivolous claims secret, it also prevents speech about meritorious ones.

Moreover, there are reasonable adequate alternatives - the touchstone of narrow tailoring - to secrecy.  First, clients who file frivolous claims should not have immunity from libel suits.  Second, the state bar make an official - and public finding - that a claim was without merit.

New Jersey lawyers have forgotten that the answer to speech  you don't like is ... more speech!

Of course lawyers should have remedies for frivolous claims. Clients filing frivolous claims should not have immunity from suit.  If a client libels an attorney, he or should should be sued.  I also liked Norm's suggestion that attorneys responding to frivolous claims be reimbursed for a percentage of their wasted time, though one reason against this is that it would take away resources needed to investigate lawyer misconduct.

In any event, New Jersey's law is plainly unconstitutional and should be struck down.  It's also disgraceful that attorneys-at-law seek to impose a speech code similar to one used by organized crime.