JOHN J. ROBERTELLI v. THE NEW JERSEY OFFICE OF ATTORNEY ETHICS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

JOHN J. ROBERTELLI

and GABRIEL ADAMO,

Plaintiffs-Appellants,

v.

THE NEW JERSEY OFFICE OF

ATTORNEY ETHICS and

CHARLES CENTINARO,

Defendants-Respondents.

_____________________________

February 3, 2015

Before Judges Sabatino, Simonelli and Leone.

On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Bergen County, Docket No. C-275-12.

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 respondent New Jersey Office of Attorney Ethics (John J. Hoffman, Acting Attorney General, attorney; Mr. Feinblatt, of counsel and on the brief; Susan M. Scott, Deputy Attorney General, on the brief).

PER CURIAM

In this attorney disciplinary matter, plaintiffs John J. Robertelli and Gabriel Adamo,1 filed a complaint in the Chancery Division against defendant Office of Attorney Ethics (OAE) and its Director, defendant Charles Centinaro (Director).2 Plaintiffs sought both a declaration that defendants lacked authority to investigate and prosecute a grievance against them and an injunction prohibiting prosecution of the grievance. The trial judge dismissed the complaint pursuant to Rule 4:6-2(a) for lack of subject matter jurisdiction in the Superior Court, concluding the Supreme Court and ethics bodies established pursuant to Rule 1:20-1(a) have exclusive jurisdiction over attorney disciplinary matters. We agree with this determination and affirm.

The factual allegations are straightforward. Plaintiffs' law firm represented the Borough of Oakland, the Borough of Oakland Police Department, and a police sergeant in a personal injury action brought by Dennis Hernandez. Hernandez claimed he sustained permanent injuries when struck by a police car driven by the police sergeant.

Robertelli directed a paralegal employed by his law firm to search the Internet to obtain information about Hernandez. On multiple occasions, the paralegal accessed Hernandez's Facebook page, which at first was public and then became private. Using her true identity, but not disclosing her employment with Robertelli's law firm, the paralegal requested to "friend" Hernandez, and he agreed. The paralegal obtained information from Hernandez's private Facebook page that could be used to impeach him, including a video recording of him wrestling.3

Hernandez filed a grievance with the District II-B Ethics Committee (DEC), alleging that plaintiffs' conduct violated several Rules of Professional Conduct (R.P.C.). The DEC secretary determined that plaintiffs did not engage in unethical conduct and, with the concurrence of a public member, declined to docket the grievance. See Rule 1:20-3(e)(3).

Hernandez's attorney, Michael Epstein then wrote to the Director, provided additional information about plaintiffs' alleged unethical conduct, and requested that the OAE review the matter and docket it for a full investigation and potential hearing. The OAE agreed and, following an investigation in which plaintiffs participated, issued a complaint, alleging that plaintiffs violated R.P.C. 4.2 (communicating with a person represented by counsel); R.P.C. 5.1(b) and (c) (failure to supervise a subordinate lawyer);4 R.P.C. 5.3(a), (b) and (c) (failure to supervise a non-lawyer assistant); R.P.C. 8.4(a) (violation of the R.P.C.'s by inducing another person to do so and violating the R.P.C.'s through the acts of another); R.P.C. 8.4(c) (conduct involving dishonesty, fraud, deceit and misrepresentation); and R.P.C. 8.4(d) (conduct prejudicial to the administration of justice) (the OAE complaint).

Plaintiffs requested withdrawal of the OAE complaint, arguing that Rule 1:20-3(e)(6)5 and O'Boyle v. District I Ethics Committee, 421 N.J. Super. 457 (App. Div.), certif. denied, 208 N.J. 601 (2011), precluded both Epstein's "appeal" of the DEC's decision and the OAE's investigation and prosecution of the grievance. Plaintiffs also argued that the Director's authority pursuant to Rule 1:20-2(b)(2)6 to investigate any information coming to his attention did not supersede the "no appeal" prohibition of Rule 1:20-3(e)(6).

The Director declined to withdraw the OAE complaint, stating he had the authority pursuant to Rule 1:20-2(b)(2) to investigate any information coming to his attention whether by grievance or otherwise, and Rule 1:20-2(b)(18)7 to exercise all of the investigative and prosecutorial authority of a DEC in addition to his authority under the Rules. The Director stated that Epstein provided more specific information about plaintiffs' alleged unethical conduct than Hernandez provided and concluded therefrom that the conduct, if true, would violate several RPCs. Based on the results of the investigation, the Director determined there was a reasonable prospect of finding unethical conduct by clear and convincing evidence, thus warranting the filing of the OAE complaint. The Director advised plaintiffs they could file a motion to dismiss the OAE complaint pursuant to Rule 1:20-5(d)(1)8 if they believed the complaint failed to state a cause of action or the DEC assigned to the OAE complaint lacked jurisdiction.

Plaintiffs did not file a motion. Instead, they filed a verified complaint in the Chancery Division, seeking a declaration that defendants lacked authority to investigate and prosecute the grievance because pursuant to Rule 1:20-3(e)(6), the DEC's decision was final and unreviewable by anyone, including the Director.

Defendants filed a motion to dismiss pursuant to Rule 4:6-2(a). Relying on O'Boyle, they argued the court lacked subject matter jurisdiction because, except for constitutional challenges, which plaintiffs did not raise, our Supreme Court has exclusive jurisdiction over attorney disciplinary matters.

Defendants also sought dismissal pursuant to Rule 4:6-2(e) for failure to state a claim upon which relief can be granted. They invoked their absolute immunity from suit pursuant to Rule 1:20-7(e)9 and applicable case law, and argued that Epstein's request to the Director was a new grievance, not an appeal from the DEC's decision, which the Director had the discretion and authority pursuant to Rule 1:20-2(b)(2) and (18) to investigate and prosecute. Plaintiffs acknowledged the Director had such discretion and authority, but countered that Rule 1:20-3(e)(6) reflected the Supreme Court's intent to limit that authority to grievances that a DEC docketed.

The trial judge noted that although plaintiffs did not plead an action in lieu of prerogative writs, they were essentially asking for a review and overturning of an agency's determination. Because there was no constitutional challenge, the judge construed O'Boyle and the authority cited therein "as collectively evincing an intent, if not a mandate, that courts refrain from reviewing and/or enjoining the actions of those agencies which have been vested with the authority over attorney disciplinary proceedings." Accordingly, the judge concluded that because the Supreme Court and the ethics bodies established by Rule 1:20-1(a) have exclusive jurisdiction over attorney disciplinary matters, the Superior Court lacked jurisdiction in this matter. The judge determined that plaintiffs were not left without a remedy, as they could file a motion to dismiss the OAE complaint pursuant Rule 1:20-5(d)(1) and, if unsuccessful, further appeal to the Disciplinary Review Board (DRB) and Supreme Court. This appeal followed. While this appeal was pending, plaintiffs moved for direct certification to the Supreme Court pursuant to Rule 2:12-2, which the Court denied.

On appeal, plaintiffs contend they did not seek to review and overturn defendants' decision; rather, they sought an interpretation of the "inconsistent" Court Rules the parties cited and a declaration that pursuant to Rule 1:20-3(e)(6), defendants lacked authority to pursue the grievance because the DEC's decision was final and unreviewable. Plaintiffs posit that because the Uniform Declaratory Judgment Act (UDJA) N.J.S.A. 2A:16-50 to -62, grants the Superior Court jurisdiction to determine the constitutionality of Court Rules, that rationale should also apply to the interpretation of Court Rules. We disagree with plaintiffs.

The New Jersey Constitution grants our Supreme Court exclusive jurisdiction over attorney disciplinary matters. The Constitution provides that "[t]he Supreme Court shall make rules governing the administration of all courts in the State and, subject to the law, the practice and procedure in all such courts. The 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. To assist in the administration of its disciplinary function, the Supreme Court has established DECs, district fee arbitration committees, a DRB, a Disciplinary Oversight Committee, and an OAE and OAE Director. R. 1:20-1(a). A DEC "acts as an arm of the Supreme Court when it performs the functions of receiving and investigating grievances, and holding disciplinary hearings." O'Boyle, supra, 421 N.J. Super. at 466. "Filing an ethics grievance with a [DEC] 'is in effect a filing with the Supreme Court.'" Ibid. (quoting Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 433, 102 S. Ct. 2515, 2522, 73 L. Ed. 2d 116, 126 (1982)).

Except for constitutional challenges, which plaintiffs did not raise, the Supreme Court has exclusive jurisdiction and authority over matters of attorney discipline,10 including the actions of those ethics bodies vested with the authority over attorney disciplinary proceedings. Id. at 464, 472-73, 476-77. Because the Supreme Court has exclusive jurisdiction, the UDJA cannot confer jurisdiction on the Superior Court

All courts of record in this state shall, within their respective jurisdictions, have power to declare rights, status and other legal relations, whether or not further relief is or could be claimed; and no action or proceeding shall be open to objection on the ground that a declaratory judgment is demanded.

[N.J.S.A. 2A:16-52 (emphasis added).]

Accordingly, both the trial court and this court lack jurisdiction over this matter.

We are cognizant of plaintiffs' concern that their challenge to the OAE's legal authority to prosecute them in spite of the DEC's dismissal should be judicially reviewable in some forum. However, the opportunity for review of that issue exists in the Supreme Court, not the Superior Court. Such review may be pursued in a variety of ways, including through a petition for certification or notice of appeal from this court's present opinion. See R. 2:2-1(a)(1) (regarding appeals as of right involving substantial questions arising under the federal or state constitution); R. 2:2-1(b) (on petition for certification. Such review may also be pursued in the disciplinary proceedings themselves through the Court's ultimate review of a motion to dismiss pursuant to Rule 1:20-5(d)(1) if the Board recommends discipline. See R. 1:20-15(h) (preserving constitutional challenges for Supreme Court action); R. 1:20-16(a) (regarding appeals of right from disbarment recommendations); R. 1:20-16(b) (regarding petitions for review from other disciplinary recommendations); R. 1:20-16(f) (regarding leave to appeal and petitions for review on constitutional issues).

We respectfully decline to render any advisory opinion on the substantive issues raised by plaintiffs, without prejudice to their right to pursue those same issues in the Supreme Court. We also do not construe the Court's decision to decline direct certification in this case as an instruction for this court to address the merits of those issues.

Affirmed.

1 We shall sometimes refer to Robertelli and Adamo collectively as plaintiffs.

2 We shall sometimes refer to the OAE and the Director collectively as defendants.

3 It was later determined that the video recording pre-dated the accident.

4 This violation was charged as to Robertelli only.

5 Rule 1:20-3(e)(6) provides that "[t]here shall be no appeal from a decision to decline a grievance made in accordance with this rule. An appeal may be taken from a dismissal of a grievance after docketing in accordance with [Rule] 1:20-3(h)."

6 Rule 1:20-2(b)(2) provides that "[t]he Director shall have the discretion and authority 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 or transfer to disability-inactive status[.]"

7 Rule 1:20-2(b)(18) provides that "[i]n all actions the Director shall exercise all of the investigative and prosecutorial authority of an Ethics Committee in addition to any authority invested in the Director under these rules."

8 Rule 1:20-5(d)(1) provides that "[n]o motion to dismiss a complaint shall be entertained except . . . a prehearing motion addressed either to the legal sufficiency of a complaint to state a cause of action as a matter of law or to jurisdiction."

9 Rule 1:20-7(e) provides, in pertinent part, that "[m]embers of the [OAE], the Disciplinary Review Board, Disciplinary Oversight Committee, Ethics Committee, Fee Committees, their secretaries, special ethics masters and their lawfully appointed designees and staff, shall be absolutely immune from suit, whether legal or equitable in nature, based on their respective conduct in performing their official duties."

10 To be sure, the trial courts and this court frequently adjudicate discrete issues that involve the application of the Rules of Professional Conduct, such as those respecting the reasonableness of counsel fees (see R.P.C. 1.5), regulating conflicts of interest (see R.P.C. 1.7 through 1.14), and proscribing frivolous litigation (see R.P.C. 3.1). Although such matters sometimes result in the imposition of sanctions within a particular litigation, they do not involve the imposition of discipline upon an attorney such as the suspension or revocation of his or her license to practice law.