John J. Robertelli v. New Jersey Office of Attorney Ethics (075584)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
John J. Robertelli v. The New Jersey Office of Attorney Ethics (A-62-14) (075584)
Argued February 1, 2016– Decided April 19, 2016
Rabner, C. J., writing for a unanimous Court.
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
1
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.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA and SOLOMON, and
JUDGE CUFF (temporarily assigned) join in CHIEF JUSTICE RABNER’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-62 September Term 2014
075584
JOHN J. ROBERTELLI and
GABRIEL ADAMO,
Plaintiffs-Appellants,
v.
THE NEW JERSEY OFFICE OF
ATTORNEY ETHICS and CHARLES
CENTINARO,
Defendants-Respondents.
Argued February 1, 2016 – Decided April 19, 2016
On certification to the Superior Court,
Appellate Division.
Michael S. Stein argued the cause for
appellants (Pashman Stein, attorneys; Mr.
Stein and Janie Byalik, on the briefs).
Stuart M. Feinblatt, Assistant Attorney
General, argued the cause for respondents
(John J. Hoffman, Acting Attorney General,
attorney; Mr. Feinblatt and Susan M. Scott,
Deputy Attorney General, on the brief).
CHIEF JUSTICE RABNER delivered the opinion of the Court.
New Jersey has a robust disciplinary system designed to
address allegations of attorney misconduct and protect the
public. The process relies on both a large group of dedicated
volunteers, who serve on local District Ethics Committees
1
(DECs), as well as full-time professionals employed by the
Office of Attorney Ethics (OAE).
In this appeal, the Court considers whether the OAE may
investigate a grievance after a DEC secretary has declined to
docket the matter. We find that the relevant court rules permit
the OAE to proceed, consistent with the broad authority the
rules grant the Director of the OAE and the important aims of
the disciplinary process. As a result, the OAE may continue to
pursue allegations that plaintiffs, two New Jersey attorneys,
violated the Rules of Professional Conduct (RPCs) when they
allegedly directed a paralegal to “friend” an adverse,
represented party on Facebook and gather non-public information
about him.
I.
To recount the facts, we draw on the allegations in the
OAE’s pending complaint before the DEC and plaintiffs’ complaint
filed with the Superior Court. We make no findings about the
accuracy of the factual allegations in either complaint.
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 filed a lawsuit against the Borough of Oakland, the
police department, and the sergeant.
2
Plaintiffs John J. Robertelli and Gabriel Adamo, both
licensed attorneys in New Jersey, worked at the law firm that
represented the defendants in the personal injury lawsuit. To
gather information about Hernandez, plaintiffs directed a
paralegal to search the Internet. Among other sources, the
paralegal accessed Hernandez’s Facebook page multiple times.
At first, 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.”
According to the OAE, plaintiffs directed the paralegal to
access and continue to monitor the non-public pages, and she
submitted a “friend request” to Hernandez. The paralegal did
not misrepresent her identity, but she also did not reveal that
she worked for plaintiffs’ law firm and was investigating
Hernandez.
Hernandez accepted the friend request. He learned about
the firm’s actions before trial when plaintiffs sought to add
the paralegal as a trial witness and disclosed printouts from
Hernandez’s Facebook page and his friends’ pages. Through his
attorney, Hernandez objected to the use of the documents at
trial. He also filed a grievance with the District II-B Ethics
Committee on May 18, 2010, and asserted that it was a violation
of the RPCs for plaintiffs to contact him directly through his
Facebook page without first contacting his attorney.
3
Weeks later, on June 22, 2010, the Secretary of the
District II Ethics Committee advised Hernandez in writing that
she had reviewed the grievance and determined that the
allegations, if proven, would not constitute unethical conduct.
The Secretary considered only the face of the complaint and did
not conduct an investigation. With the agreement of a public
member of the Committee, the Secretary declined to docket the
grievance.
Hernandez’s attorney next sent a letter to the Director of
the OAE on July 30, 2010. The letter recounted plaintiffs’
conduct and offered some additional details not in the original
grievance. The core allegations in both documents, though, were
essentially the same. According to counsel, “[t]he misuse of
the internet and social hosting webpages is nothing short of an
end-run on telephone communications and/or written
correspondence with clients represented by attorneys.” For that
reason, Hernandez’s counsel made a “formal request” that the OAE
“review the matter and have it docketed for a full investigation
and potential hearing.”
The Director, in turn, investigated the matter and, on
November 16, 2011, filed a complaint against plaintiffs with the
District XIV Ethics Committee. The complaint alleged that
plaintiffs engaged in misconduct in violation of RPC 4.2
(communicating with a person represented by counsel); RPC 5.1(b)
4
and (c) (failure to supervise a subordinate lawyer -- charged
only against Robertelli); RPC 5.3(a), (b), and (c) (failure to
supervise a non-lawyer assistant); RPC 8.4(a) (violation of the
RPCs by inducing another person to violate them or doing so
through the acts of another); RPC 8.4(c) (conduct involving
dishonesty, fraud, deceit, and misrepresentation); and RPC
8.4(d) (conduct prejudicial to the administration of justice).
Plaintiffs filed an answer to the complaint and stated that
they acted in good faith at all times and had not committed any
unethical conduct. They explained, in part, that they were
unfamiliar with the different privacy settings on Facebook.
Six months later, plaintiffs asked the Director of the OAE
to withdraw the complaint. They argued that Rule 1:20-3(e)(6)
and case law barred the OAE from proceeding after the Secretary
decided not to docket the grievance.1 The Director declined the
request. He relied on the authority contained in Rule 1:20-
2(b). He added that plaintiffs could file a motion to dismiss
the complaint under Rule 1:20-5(d) if they believed the Director
failed to state a cause of action or that the DEC lacked
jurisdiction.
1 Rule 1:20-3(e)(6), discussed further below, provides as
follows: “There shall be no appeal from a decision to decline a
grievance made in accordance with this rule. An appeal may be
taken from dismissal of a grievance after docketing in
accordance with R. 1:20-3(h).”
5
Plaintiffs instead filed the instant complaint in Superior Court
on September 13, 2012. They asked the court (1) to declare that
the Director lacked authority to “review” the DEC’s decision not
to docket the grievance, pursuant to Rule 1:20-3(e)(6), and (2)
to enjoin the OAE from pursuing the grievance.
The OAE moved to dismiss the complaint. The trial court
concluded that because the Supreme Court and the ethics bodies
it established have exclusive jurisdiction over attorney
disciplinary matters, the Superior Court lacked authority to
review or enjoin the acts of the OAE. The trial court therefore
dismissed the complaint and added that plaintiffs could move for
dismissal of the ethical charges “in the context of the pending
disciplinary action.”
The Appellate Division affirmed. It explained that,
“[e]xcept for constitutional challenges, which plaintiffs did
not raise, the Supreme Court has exclusive jurisdiction and
authority over matters of attorney discipline, including the
actions of those ethics bodies vested with the authority over
attorney disciplinary proceedings.”
We granted plaintiffs’ petition for certification. 222
N.J. 15 (2015).
II.
We begin with an overview of the disciplinary system to
provide context for this appeal. The State Constitution
6
declares that “[t]he Supreme Court shall have jurisdiction over
the admission to the practice of law and the discipline of
persons admitted.” N.J. Const. art. VI, § 2, ¶ 3. This Court
thus “has both the authority and obligation to oversee the
discipline of attorneys.” R.M. v. Supreme Court of New Jersey,
185 N.J. 208, 213 (2005). Our responsibility in this area is
“exclusive.” State v. Rush, 46 N.J. 399, 411 (1966).
The Court has created various entities to assist in its
disciplinary role. Most pertinent to this case, they include
the DECs, the OAE, and the Disciplinary Review Board (DRB).
They are “arms of the [C]ourt,” and a filing with them “is in
effect a filing with the Supreme Court.” Toft v. Ketchum, 18
N.J. 280, 284 (1955) (discussing county ethics and grievance
committees); see also Middlesex Cty. Ethics Comm. v. Garden
State Bar Ass’n, 457 U.S. 423, 433, 102 S. Ct. 2515, 2522, 73 L.
Ed. 2d 116, 125 (1982). To guide attorneys and the public, the
Court has also adopted rules that outline the attorney
disciplinary process. See R. 1:20.
The system as a whole 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, gives attorneys an
opportunity to respond to allegations and defend themselves with
vigor, and, in the end, protects the public from unethical
7
conduct by unfit lawyers. See In re Cammarano, 219 N.J. 415,
420 (2014). Through those efforts, the disciplinary scheme
helps “promote public confidence in [the] legal system.” In re
Gallo, 178 N.J. 115, 122 (2003).
In general, two entities have the authority to investigate
and prosecute grievances against attorneys licensed in New
Jersey: the DECs and the OAE. R. 1:20-3; R. 1:20-2(b). Unlike
states that have a fully centralized disciplinary system, New
Jersey uses a hybrid approach with a central OAE and local DECs
in each vicinage. A grievance may follow either of two paths;
the more common course starts in the DEC, the other begins in
the OAE.
Another body plays an important role in the review process.
The DRB sits as an “intermediate appellate tribunal in
disciplinary matters.” See R. 1:20; R. 1:20-15. The Supreme
Court, consistent with the constitutional mandate, is the final
arbiter of ethics matters. See R. 1:20-16.
The roles of each entity require a more detailed
explanation. The DECs “screen, investigate, prosecute, and hear
disciplinary” matters. R. 1:20. Each vicinage has one or more
DECs, which serve a “defined geographical area.” R. 1:20-3(a).
DECs have no fewer than eight volunteer members, at least four
of whom must be attorneys and two of whom must be laypeople.
Ibid.
8
The Director, after consultation with the committee chair,
appoints a Secretary for each DEC. R. 1:20-3(c). Secretaries
must be licensed attorneys, and they receive and review all
grievances on behalf of the DECs. R. 1:20-3(c)-(e). When the
facts alleged, “if true, would constitute unethical conduct”
under the RPCs, a Secretary must docket the grievance. R. 1:20-
3(e)(1). On the other hand, when the facts alleged, “if true,
would not constitute unethical conduct,” the Secretary shall
decline to docket the grievance, provided a public member
agrees. R. 1:20-3(e)(3). No investigation is done in the
latter case; the Secretary reviews only the face of the
complaint.
It appears that DEC Secretaries decline to docket the
majority of grievances submitted. A 1993 report from the New
Jersey Ethics Commission2 noted that as many as eighty percent of
grievances were not docketed. Report of New Jersey Ethics
Commission, at 75 (February 26, 1993) (Michels Commission
Report). A Secretary’s decision to decline to docket a
grievance cannot be appealed to the DRB. See R. 1:20-3(e)(6).
2 Chief Justice Wilentz appointed the New Jersey Ethics
Commission in 1991 to examine the attorney discipline system.
The Honorable Herman D. Michels, former Presiding Judge for the
Administration of the Appellate Division, chaired the
Commission, and it is known as the “Michels Commission.”
9
When a Secretary dockets a grievance, the DEC chair assigns
an attorney member to investigate the matter. R. 1:20:3(g)(1).
After the investigator presents a written report and
recommendation, the chair may file a complaint, R. 1:20-
3(i)(3)(B), request that the Director approve an agreement in
lieu of discipline for minor unethical conduct, R. 1:20-
3(i)(2)(B)(i), or dismiss the charge, R. 1:20-3(h). If the
chair decides to dismiss a grievance after an investigation,
either the Director or the grievant may appeal the decision to
the DRB. R. 1:20-3(e)(6); R. 1:20-3(h); R. 1:20-15(e)(1), (2).
The Court created the OAE in 1984, as part of “the
increased centralization of the disciplinary system.” See Kevin
H. Michels, New Jersey Attorney Ethics, § 42:1 at 1062-63
(2016). The OAE is staffed by full-time professionals. Both
the OAE and its Director have broad authority under the rules
both to administer the disciplinary system and to investigate
and prosecute allegations of attorney misconduct. See R. 1:20-
2.
The Director, whom the Court appoints, has “all of the
investigative and prosecutorial authority” of the DECs. R.
1:20-2(b). Under the rules, he has discretionary authority to
“investigate any information coming to the Director’s attention,
whether by grievance or otherwise.” R. 1:20-2(b)(2). The
Director also has exclusive investigative and prosecutorial
10
jurisdiction in certain areas, including serious, complex, or
emergent matters, R. 1:20-2(b)(1)(A), as well as any case the
DRB or the Court assigns to the Director, R. 1:20-2(b)(1)(E).
The Director can appeal to the DRB a decision by the DEC chair
to dismiss a matter after investigation without the filing of
any charges, or a decision to dismiss after a hearing. R. 1:20-
15(e); R. 1:20-3(h).
Disciplinary proceedings may also begin at the OAE. A
grievant can raise an ethics complaint directly with the
Director. See R. 1:20-2(b)(2); Baxt v. Liloia, 155 N.J. 190,
211 (1998) (noting that attorneys can report unethical behavior
either to OAE or local DEC to satisfy RPC 8.3(a) and “inform the
appropriate professional authority”).
When a DEC chair or the Director files a complaint after an
investigation, the matter proceeds before a hearing panel of
three DEC members, R. 1:20-6(a)(1), or a special master, R.
1:20-6(b)(3). Respondents receive written notice during the
investigative phase under Rule 1:20-3(g)(2), and written notice
of the hearing under Rule 1:20-6(c)(2)(A). They may appear at
the hearing with counsel, cross-examine witnesses, and present
evidence. Ibid. After the hearing, “[i]f the trier of fact
finds that there has been no unethical conduct,” the complaint
is dismissed. R. 1:20-6(c)(2)(E). Once again, the grievant or
Director may appeal that decision to the DRB. R. 1:20-15(e)(1),
11
(2). The panel or special master may also recommend an
admonition, reprimand, censure, suspension, or disbarment. R.
1:20-6(c)(2)(E).
The DRB -- “the intermediate appellate tribunal in
disciplinary matters,” R. 1:20 -- is a nine-member body of
lawyers and laypeople. R. 1:20-15(a). Its primary role is to
review recommendations for discipline and appeals from findings
of no unethical conduct. R. 1:20-15(e), (f). This Court
reviews all recommendations for disbarment, R. 1:20-16(a), and
may review any other determination by the DRB, R. 1:20-16(b).
III.
Plaintiffs argue that the Superior Court had jurisdiction
to decide the merits of this case. They contend that the matter
called for an interpretation of certain court rules, which they
claim falls within the general jurisdiction of the Superior
Court even when a rule touches on attorney discipline.
Plaintiffs maintain that their application was not an invitation
for the trial court to resolve a disciplinary matter and
therefore did not encroach on this Court’s exclusive
jurisdiction. In any event, plaintiffs argue that the question
of subject matter jurisdiction is secondary now that their
appeal is before this Court.
As to the merits, plaintiffs’ central contention is that,
under Rule 1:20-3(e)(6), the Director was not authorized to
12
consider an appeal of the Secretary’s decision not to docket a
grievance. Plaintiffs claim that the letter the OAE reviewed
from Hernandez’s counsel was “tantamount to an impermissible
appeal.”
Plaintiffs assert that there is a conflict between the
court rule that gives the Director discretion to investigate any
grievance, R. 1:20-2(b)(2), and the rule that bars appeals from
a Secretary’s decision not to docket a grievance, R. 1:20-
3(e)(6). To resolve that tension, they urge the Court to
prohibit the Director from unilaterally reviewing and reversing
the DEC’s decision. For support, plaintiffs reason from related
disciplinary rules and rely, in part, on the Michels Commission
Report and on later amendments to the court rules.
The OAE, represented by the Attorney General, contends that
the trial court properly dismissed plaintiffs’ complaint.
Because this Court has exclusive jurisdiction over attorney
discipline matters, the OAE submits that the trial court could
not entertain a direct challenge to the prosecution of an
attorney ethics grievance. According to the OAE, this lawsuit,
at its core, is about a disciplinary case and not a dispute over
the meaning of court rules. As a result, the OAE contends that
plaintiffs’ arguments can and should be considered during the
disciplinary proceedings.
13
In any event, the OAE maintains that the Director was well
within his authority to evaluate and investigate the underlying
allegations, even after the DEC Secretary declined to docket the
grievance. The OAE relies on the Director’s broad authority in
Rule 1:20-2(b). The OAE rejects plaintiffs’ reading of Rule
1:20-3(e)(6) and contends that the rule does not bind the
Director, who does not act as an appellate body.
IV.
We first consider the issue of subject matter jurisdiction.
Plaintiffs seek to prevent the OAE and its Director from
prosecuting the disciplinary allegations against them. Their
complaint specifically asks the Superior Court to restrain the
OAE “from taking any action in furtherance of the disciplinary
charges against them” and to “declar[e] that the OAE lacks
jurisdiction to pursue the grievance.” 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.
Subject matter jurisdiction involves “a threshold
determination as to whether [a court] is legally authorized to
decide the question presented.” Gilbert v. Gladden, 87 N.J.
275, 280-81 (1981). When a court lacks subject matter
jurisdiction, its authority to consider the case is “wholly and
14
immediately foreclosed.” Id. at 281 (quoting Baker v. Carr, 369
U.S. 186, 198, 82 S. Ct. 691, 699, 7 L. Ed. 2d 663, 674 (1962)).
Under the State Constitution, this Court has jurisdiction
over attorney discipline matters. N.J. Const. art. VI, § 2, ¶
3. As noted earlier, the Court’s responsibility in this area is
exclusive. In re LiVolsi, 85 N.J. 576, 583 (1981) (citing Rush,
supra, 46 N.J. at 411-12).
The Superior Court can consider challenges to the
constitutionality of a disciplinary rule. In re Felmeister, 95
N.J. 431, 444 (1984). But the Superior Court lacks jurisdiction
over the regulation of the Bar and matters that intrude on the
disciplinary process. See LiVolsi, supra, 85 N.J. at 596-97
(finding no right of review of determination of fee arbitration
committee, via prerogative writ action in Superior Court,
because Constitution grants Supreme Court “plenary authority to
regulate the Bar”); O’Boyle v. District I Ethics Committee, 421
N.J. Super. 457, 473-74 (App. Div.) (rejecting constitutional
challenge to Rule 1:20-3(e)(6) and noting “[i]t would make
little sense to allow the Superior Court, Law Division, to
review a decision of a district ethics secretary” in light of
language of rule and reasoning in LiVolsi), certif. denied, 208
N.J. 601 (2011); GE Capital Mortg. Servs., Inc. v. N.J. Title
Ins. Co., 333 N.J. Super. 1, 2-3 (App. Div. 2000) (holding Fund
15
for Client Protection could “not be sued in Superior Court by a
disappointed claimant”).
We note that the Superior Court has on occasion interpreted
disciplinary rules to resolve an issue in a non-disciplinary
matter. See, e.g., Eichen, Levinson, & Crutchlow, LLP v.
Weiner, 397 N.J. Super. 588, 598 (App. Div.) (interpreting Rules
1:20-19 and 1:20-20 to determine whether firm that received
referrals from disbarred attorney was required to remit referral
fees to attorney-trustee managing disbarred attorney’s
practice), certif. denied, 195 N.J. 418 (2008); State v.
Stroger, 185 N.J. Super. 124, 131-33, 136 (Law Div. 1981)
(interpreting confidentiality provision of former Rule 1:20-5
and denying motion to suppress evidence that DRB gave to
prosecutor’s office), aff’d, 97 N.J. 391, 413 (1984). In none
of those cases, however, did the courts intervene in the
operation of the ethics system or the discipline of an attorney.
Here, plaintiffs seek to bar the OAE from prosecuting a
disciplinary matter. Their complaint attempts to interfere
directly with the operation of the disciplinary process. Like
the trial court and the Appellate Division, we therefore
conclude that the Superior Court lacked subject matter
jurisdiction.
Plaintiffs argue that the trial court and Appellate
Division should have addressed what they perceive as a conflict
16
between the court rules. Among other points, they contend that
judges of the Superior Court are better-equipped to interpret
the rules than the mix of lawyers and laypeople who serve on the
DECs and DRB. But the question of subject matter jurisdiction
is one of authority, not expertise. See Gladden, supra, 87 N.J.
at 280-81. In addition, plaintiffs’ argument extends beyond the
interpretation of a court rule; the relief plaintiffs seek goes
to the heart of the disciplinary process.
We recognize, nonetheless, that this appeal raises an
important question about the authority of the OAE Director and
the functioning of the disciplinary system -- matters that fall
squarely within the Court’s constitutional charge. If the case
were to proceed through a decision by the DRB, the Court would
then be able to review that determination. R. 1:20-16(b).
Under the circumstances, we relax the court rules in the
interest of justice to address the legal authority of the
Director now. See R. 1:1-2(a); see also State v. Luna, 193 N.J.
202, 211 (2007) (relaxing rules in interest of justice “[i]n
light of the critically important question presented”).
V.
We turn to the issue at the center of this appeal: whether
the OAE Director can review an allegation of unethical conduct
and file a complaint after a DEC Secretary has declined to
docket a similar claim. In this matter, the DEC Secretary
17
believed that the allegation, if true, would not constitute
unethical behavior. With the concurrence of a public member of
the Committee, the Secretary declined to proceed.
Plaintiffs rely heavily on Rule 1:20-3(e)(6), which states,
“[t]here shall be no appeal from” the Secretary’s decision.
They argue that the rule bars the OAE Director from taking
further action. For several reasons, we disagree.
A.
We apply familiar canons of statutory construction to
interpret the court rules. Hopewell Valley Citizens’ Grp., Inc.
v. Berwind Prop. Grp. Dev. Co., L.P., 204 N.J. 569, 578 (2011)
(citing Wiese v. Dedhia, 188 N.J. 587, 592 (2006)); State v.
Clark, 191 N.J. 503, 508 (2007). We look first to the plain
language of the rules and give the words their ordinary meaning.
Bridgewater-Raritan Educ. Ass’n v. Bd. of Educ. of Bridgewater-
Raritan Sch. Dist., Somerset Cty., 221 N.J. 349, 361 (2015);
N.J.S.A. 1:1-1.
We also read the language of a rule “in context with
related provisions so as to give sense to the [court rules] as a
whole.” Wiese, supra, 188 N.J. at 592; see also Shelton v.
Restaurant.com, Inc., 214 N.J. 419, 438 (2013) (“Statutes that
deal with the same matter or subject matter should be read in
pari materia and construed together as a unitary and harmonious
18
whole.” (quoting In re Petition for Referendum on Trenton
Ordinance 09-02, 201 N.J. 349, 359 (2010))).
If the text of the rules is ambiguous, we can turn to
extrinsic evidence, including committee reports, for guidance.
Cast Art Indus., LLC v. KPMG LLP, 209 N.J. 208, 222 (2012)
(quoting DiProspero v. Penn, 183 N.J. 477, 492-93 (2005)).
B.
We start with the plain language of Rule 1:20-3(e)(6) and
conclude that, when read in context, it prevents grievants from
appealing to the DRB a Secretary’s decision not to docket a
grievance. The rule, either by its express terms or when read
alongside other rules, does not bar the OAE Director from
acting.
The short rule has two sentences. The first sentence --
“[t]here shall be no appeal from a decision to decline a
grievance made in accordance with this rule” -- does not specify
where the forbidden appeal might lie. The second sentence
reveals more. It declares that “[a]n appeal may be taken from
dismissal of a grievance after docketing in accordance with Rule
1:20-3(h).”
Rule 1:20-3(h), in turn, states that if the DEC dismisses a
grievance after an investigation, the Director and the grievant
have “the right to appeal to the Board within 21 days as
provided by Rule 1:20-15(e)(2).” (Emphasis added). Rule 1:20-
19
15(e)(2) likewise outlines the way to file a notice of appeal
“with the Board” in certain instances. (Emphasis added).
Viewed in context, the phrase “no appeal” at the outset of Rule
1:20-3(e)(6) refers to an appeal to the DRB, not the OAE.
If a DEC Secretary decides not to docket a grievance, Rule
1:20-3(e)(6) does not bar the OAE from evaluating the matter for
another reason: a letter to the OAE is not an “appeal.” The
term “appeal,” as ordinarily understood, is “[a] proceeding
undertaken to have a decision reconsidered by a higher
authority; esp., the submission of a lower court’s or agency’s
decision to a higher court for review and possible reversal.”
Black’s Law Dictionary 117 (10th ed. 2014); see also id. at 1514
(defining “appellate review” as an “[e]xamination of a lower
court’s decision by a higher court, which can affirm, reverse,
modify, or vacate the decision”).
To be sure, the OAE Director has certain administrative/
supervisory responsibilities over the DECs. The Director has
the power to “recommend to the Supreme Court the appointment and
replacement” of DEC members, R. 1:20-2(b)(13); to hire and
discharge DEC Secretaries and recommend their compensation, R.
1:20-2(b)(12); to select members of hearing panels and approve
volunteer investigators, R. 1:20-2(b)(17), (18); and to transfer
disciplinary matters among DECs, R. 1:20-2(b)(7). If a DEC does
20
not resolve a grievance within one year of filing, the Director
may assume jurisdiction over the matter. R. 1:20-2(b)(1)(D).
The Director, however, does not have the authority to
override the decisions of the DEC -- the hallmark of appellate
power. The Director cannot affirm, reverse, modify, or vacate
decisions of the DEC. In fact, when the Director investigates
and decides to prosecute a matter, as in this case, the OAE
files a complaint either with the DEC, and presents its case to
a DEC hearing panel, or with a special master. See Michels,
supra, § 42:3-2 at 1073. In addition, as noted earlier, if the
Director disagrees with certain DEC decisions, the Director may
appeal them to the DRB. R. 1:20-3(h); R. 1:20-15(e)(1)(i),
(ii). But he cannot reverse them on his own. The DRB, not the
OAE, reviews DEC decisions on appeal. R. 1:20-15(e).
Viewed in that light, Rule 1:20-3(e)(6) protects the DRB
from being overwhelmed with appeals. Under the rule, grievants
cannot appeal to the DRB the hundreds of decisions that DEC
Secretaries make each year to decline to docket grievances.
Finality helps alleviate the burden on the DRB in that regard;
the Director’s discretionary authority to step in when
appropriate does not undermine the DRB or add to its burden.
A narrow reading of the first sentence of Rule 1:20-3(e)(6)
is also at odds with the broad authority the rules afford the
Director. We try to interpret the disciplinary rules as a
21
“unitary and harmonious whole.” Shelton, supra, 214 N.J. at
438. They confer on the Director “all of the investigative and
prosecutorial authority of an Ethics Committee.” R. 1:20-2(b).
They also empower the Director to “investigate any information
coming to the Director’s attention, whether by grievance or
otherwise, which, in the Director’s judgment, may be grounds for
discipline.” R. 1:20-2(b)(2). The first sentence of Rule 1:20-
3(e)(6) does not override those clear grants of authority.
In addition, plaintiffs’ reading of Rule 1:20-3(e)(6) does
not comport with the purposes of the disciplinary rules: to
promote the fair and thorough investigation and defense of
allegations of unethical conduct by attorneys, and to protect
the public. This matter presents a novel ethical issue:
whether an attorney can direct someone to “friend” an adverse,
represented party on Facebook and gather information about the
person that is not otherwise available to the public. No
reported case law in our State addresses the question.
Consistent with the goals of the disciplinary process, the court
rules do not close off further inquiry 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 Director of the
OAE, by virtue of the broader scope of his position, sees the
breadth of issues raised throughout the State and is aware of
22
national trends. The public is best served by a system that
permits both volunteers in the DECs and professionals in the OAE
to assess challenging ethical matters like the one presented in
this case. The Director’s review, moreover, offers a mechanism
to ensure that allegations of egregious misconduct are not
mistakenly overlooked.
The approach that plaintiffs read into the rules would also
lead to unusual results. Plaintiffs contend that the OAE
Director cannot review the letter from grievant’s counsel in
this matter because counsel sent the letter after the
Secretary’s decision, allegedly in violation of Rule 1:20-
3(e)(6). Even if plaintiffs’ view had prevailed, nothing would
bar the Director from investigating if the grievant had written
to the Director first. And if the grievant had written to both
bodies at the same time, the Director could go forward
regardless of the Secretary’s decision. Such disparate outcomes
are hard to justify and would not sensibly serve the goals of
the State’s disciplinary system.
Finally, the court rules have a built-in override that can
defeat attempts to enjoin the Director from proceeding. Under
Rule 1:20-2(b)(1)(E), the Director has the discretion and
authority to investigate and prosecute “any case in which the
Board or the Supreme Court determines the matter should be
assigned to the Director.” As a result, even at this stage, the
23
Court could ask the Director to examine the novel and
potentially serious ethical issue raised in this case.
C.
Because the meaning of the rules is clear, we need not
consider committee reports or other extrinsic aids. Shelton,
supra, 214 N.J. at 429. They would not alter the outcome in any
event.
Plaintiffs claim that the history of Rule 1:20-3(e)(6)
reveals it was part of an effort to reduce backlog in the
disciplinary system. They place great reliance on the report of
the Michels Commission.
The Michels Commission’s task was to evaluate the ethics
system and recommend changes to make it “as effective, as
efficient, and as responsive as possible.” Michels Commission
Report, supra, at 2. Among other findings, the Commission
highlighted “an ever-expanding case load” and a growing backlog
of disciplinary matters. Id. at 34, 37. The Commission also
noted the corresponding growth in the number of licensed
attorneys -- from 11,408 in 1970 to 47,564 in 1992. Id. at 47.
As part of a series of recommendations, the Commission
encouraged the Court to restructure the disciplinary system and
“provide for a central intake office for the receipt of all
grievances against lawyers” in the OAE. Id. at 72. The
Commission concluded that “statewide central intake” would
24
lessen delays, “provide meaningful assistance to grievants,”
promote consistency, and, in general, “present a ‘friendlier
face’ to the public.” Id. at 77.
The Commission made note of the following aspects of the
existing docketing practice. First, DEC Secretaries declined to
docket as many as eighty percent of cases, and although the
Supreme Court had an “‘open complaint’ policy” that “allow[ed] a
grievant to insist that his grievance be docketed and
investigated,” the Commission observed that, “in reality, that
right is not well known.” Id. at 75 n.85. Second, the
Commission commented that “[t]here is currently no oversight of,
or right of appeal from, dismissal of an undocketed grievance.”
Id. at 77 n.88 (emphasis added). In other words, neither factor
was singled out as a reason for the pending backlog.
In 1994, the Court issued administrative determinations in
response to the Michels Commission Report. Supreme Court
Administrative Determinations Relating to the 1993 Report of the
New Jersey Ethics Commission (July 14, 1994) (Administrative
Determinations). The Court highlighted multiple concerns in its
findings, including the need for more timely investigations, and
the importance of “increased public involvement” in the
disciplinary system to enhance accountability and public
confidence. Id. at 1, 8.
25
To try to achieve the first aim, the Court added full-time
professional investigators to three large DECs responsible for
one-fourth of the State’s caseload. Id. at 2. The Court also
announced it would adopt time standards as goals for the
completion of investigations, hearings, and other actions. Id.
at 13, 26, 28. But the Court rejected the idea of a centralized
intake office and retained the DECs and their volunteers as a
key component of the intake and overall disciplinary process.
Id. at 24.
To address the goal of greater public involvement, the
Court “increased public participation in the decisions and work
of the system.” Id. at 2. In particular, the Court added
substantially more public members to the DECs. Id. at 3, 18.
It also expanded the members’ role. Going forward, the Court
decreed, DEC Secretaries could not screen out or dismiss a
written grievance “without the concurrence of a public member.”
Id. at 14-15, 24. That new requirement, codified in Rule 1:20-
3(e)(3), responded to the Michels Commission’s call for
“oversight” of the dismissal of undocketed grievances. See
Michels Commission Report, supra, at 77 n.88.
The Court’s Administrative Determinations did not address
the other part of the Commission’s observation -- that there was
26
no right to appeal from undocketed dismissals.3 Ibid. By
including that language in a new rule, Rule 1:20-3(e)(6), the
Court in effect embraced a practice that already existed.
In short, both before and after the changes prompted by the
Michels Commission Report, DEC Secretaries declined to docket
the vast majority of grievances, and grievants had no right of
appeal from those decisions. It appears that the first sentence
in Rule 1:20-3(e)(6), on which plaintiffs rely -- “[t]here shall
be no appeal from a decision to decline a grievance” -- broke no
new ground and was not a response to the backlog problem. In
any event, there is no basis to conclude that the OAE’s
discretionary review of grievances that Secretaries do not
docket would conflict with the aims of the Michels Commission.
VI.
For all of those reasons, we conclude that the Director of
the OAE has authority under the court rules to review a
grievance after a DEC Secretary has declined to docket it. We
anticipate that the Director will use that power sparingly to
address novel and serious allegations of unethical conduct. The
Director is not required to investigate or formally respond to
requests from grievants to pursue a matter a Secretary has not
3 The Administrative Determinations did comment on the right to
appeal dismissals after an investigation or a hearing.
Administrative Determinations, supra, at 24.
27
docketed. But the Director retains the discretion to act when
appropriate.
Such an approach reflects the traditional balance on which
our strong system of attorney discipline rests. We continue to
rely on a corps of devoted volunteers and a smaller group of
professionals who, working in tandem, have the necessary tools
to investigate possible ethical lapses by attorneys. To ensure
the strength and efficiency of the disciplinary system, we
encourage ongoing communication between the OAE and the DECs.
We affirm the judgment of the Appellate Division that the
trial court lacked subject matter jurisdiction over plaintiffs’
complaint. We also find that the court rules empower the OAE
Director to review an allegation of attorney misconduct if a DEC
Secretary declines to docket a grievance. The OAE may therefore
proceed to prosecute the alleged misconduct in this case.
JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA and
SOLOMON, and JUDGE CUFF (temporarily assigned) join in CHIEF
JUSTICE RABNER’s opinion.
28
SUPREME COURT OF NEW JERSEY
NO. A-62 SEPTEMBER TERM 2014
ON CERTIFICATION TO Appellate Division, Superior Court
JOHN J. ROBERTELLI and
GABRIEL ADAMO,
Plaintiffs-Appellants,
v.
THE NEW JERSEY OFFICE OF
ATTORNEY ETHICS and CHARLES
CENTINARO,
Defendants-Respondents.
DECIDED April 19, 2016
Chief Justice Rabner PRESIDING
OPINION BY Chief Justice Rabner
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRMED
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7