The New Jersey State Bar Association is warning that publicly hanging lawyers out to dry simply based on possibly baseless ethics allegations by disgruntled clients would be a horrendous and costly mistake.

The state’s largest attorney organization says a potential court rule change mandating full disclosure of all ethics grievances lodged against attorneys could potentially have devastating repercussions not only for the targeted lawyers, but for those lodging the complaints by making them fair game for malicious-prosecution lawsuits.

In so asserting, the State Bar has come out strongly against the move to eliminate the so-called gag rule provision of Rule 1:20-9. It requires “all participants” in a disciplinary proceeding — from claimants to disciplinary system officials and employees — to maintain confidentiality.

Thousands of lawyers ultimately could be affected if the rule is changed to comply with a request by a lawyer watchdog group, Citizens for Justice in New Jersey, which contends the existing rule is unconstitutional.

That group, which says most complaints against lawyers never see the light of day, last year targeted the rule in R.M. v. Supreme Court of New Jersey. The high court, by passing trial and appellate levels, sent the issue to its Professional Responsibility Rules Committee for administrative review.

That panel held a hearing Friday in Atlantic City and it remains unclear when the committee will issue its recommendation to the justices.

The State Bar made clear to the panel where the lawyer organization stands.

Meanwhile, a Washington, D.C.-based consumer watchdog group, HALT-An Organization of Americans for Legal Reform, said it has advised the committee here that the rule, as generally interpreted, unconstitutionally silences consumers with gripes against lawyers.

The Office of Attorney Ethics’ (OAE) grievance form specifies confidentiality must be maintained “during the investigation until and unless a complaint is issued and served. Only at that time does confidentiality end and the matter become public.”

And, according to the State Bar, that achieves an appropriate balance between the public’s need to be informed about lawyer disciplinary proceedings and the right of accused attorneys not to have their livelihood put in jeopardy by prematurely releasing misconduct allegations. Twelve percent of filed grievances annually result in formal complaints that become public.

Specifically...

The State Bar offered several arguments for not changing the rule:

• Making all grievances public, “whether they are baseless or not,” would be unnecessarily punitive, as complaints “could be used for spiteful or underhanded purposes,” harming innocent lawyers.

• According to the OAE, “the vast majority of grievances are dismissed because they are without merit.”

• The goal of the Ethics Diversionary Program, providing a second chance to lawyers who have committed “minor misconduct” but otherwise have unblemished records, would be undercut.

• District ethics committees include public members, ensuring “the trustworthiness and accountability of the current system.”

• Changing the rule could affect “another lynchpin of the disciplinary system — immunity from suit for malicious prosecution for those who file grievances.”

In support of that last point, the State Bar cited the 1986 New Jersey Supreme Court case In re Skevin. While that ruling preceded adoption of the current rule, the decision makes clear the connection between confidentiality and immunity, said the State Bar.

“We have taken extraordinary steps to protect the public interest in ethics disci plinary proceedings by affording to litigants who respect its confidentiality an immunity from suit for malicious prosecution,” said the court in Skevin, noting, “In exchange, we insist only that the parties who invoke the disciplinary process respect its concept of confidentiality until a finding is made.”

The reason for confidentiality, said the Skevin court, is that “even an unsubstanti ated charge can, if misunderstood, do irreparable damage to an attorney without any corresponding public benefit.”

Violating confidentiality would result in forfeiting immunity from suit, the court warned.

In its comments, the State Bar agreed, noting if lawyers “are to be subjected to the public airing of every grievance, whether they be substantial, scurrilous or just misinformed, then it would be grossly unfair not to allow lawyers the recourse of filing suits for malicious prosecution. In short, if confidentiality falls by the wayside, so should immunity for grievants.” Washington-based HALT, however, urges the court committee to allow grievants to speak freely.

“It’s appalling that a state with such a long-standing tradition of openness and progressiveness continues to support an unconstitutional gag rule that muzzles New Jersey citizens from telling anyone that they have filed a grievance against an attorney, said Suzanne Mishkin, the organization’s associate counsel.

The watchdog group claims several other states, including Tennessee, Florida and New Hampshire, recently abandoned confidentiality rules in the interest of “defending the rights of legal consumers.”

The organization’s statement summarizing its comments to the committee makes no mention of a balance between confidentiality and grievants’ immunity from suit, a major point in the State Bar’s position.

Read HALT’s Comments to the New Jersey Supreme Court.