Pursuant to a request from the New Jersey Supreme Court, HALT hereby submits comments in support of the Professional Responsibility Rules Committee's proposed amendment that would clarify claimants' right to speak publicly about the fee arbitration process and underlying fee disputes.

Unfortunately, Rule 1:20A-5 is currently being construed to prohibit all individuals, including claimants, from speaking publicly about the fact that they have filed a claim with New Jersey's fee arbitration system. This application poses a prior restraint on speech, in violation of both the First Amendment of the United States Constitution and the first article of the New Jersey Constitution.

The confidentiality requirement, as applied to claimants, fails to serve a compelling state interest and even if the asserted interest were compelling, the rule is not narrowly tailored to accomplish that purpose. In addition, a gag rule imposed on the general public undermines New Jersey's long-established reputation of openness and government oversight.

Finally, Rule 1:20A-5 conflicts with this Court's recent ruling in R.M. v. Supreme Court of New Jersey, 185 N.J. 208 (2005). In that case, the Court struck down a confidentiality rule that prohibited individuals who submitted disciplinary complaints from speaking publicly about the attorney discipline system and their individual complaints. Today, complainants now have the right to disclose information about their grievances and the disciplinary process. Rule 1:20A-5, which currently bars claimants from speaking publicly about the fee arbitration system, contradicts the Court's ruling in R.M.

An amendment stating that claimants have a right to speak publicly about the fee arbitration process would achieve an important balance between ensuring thorough investigations and permitting claimants to exercise their constitutional right to free speech.

1. As Currently Construed, Rule 1:20A-5 Intrudes on the Right of Free Speech Guaranteed by the Constitutions of the United States and New Jersey.

The Court must issue clear guidance that Supreme Court Rule 1:20A-5 should not be construed to support a gag rule that deeply offends the right to free speech. Rule 1:20A-5 provides:

[A]ll records, documents, files, hearings, transcripts or recordings of hearings, if any, and proceedings made and conducted in accordance with these rules shall be confidential.

On its face, the rule appears to simply require that fee committee officials keep information about a fee dispute classified unless and until the matter reaches a particular stage. However, as applied, the rule is currently also operating to silence claimants during this period. Indeed, New Jersey's Attorney Fee Arbitration Request form requires a claimant to sign and attest, "Fee proceedings are confidential."

Although the confidentiality rule on the books appears to apply to internal fee committee officials, the arbitration request form clarifies that the rule should be construed to apply to claimants as well.

1. As a content-based restriction on speech, the current construction of Rule 1:20A-5 is "presumptively invalid" and subject to strict scrutiny.

Prohibiting a citizen from disclosing the fact that she has filed a fee arbitration claim infringes upon the right of free speech guaranteed by both the Constitution of the United States and the Constitution of New Jersey. The First Amendment of the United States Constitution provides, "Congress shall make no law . . . abridging the freedom of speech . . . ." The first article of the New Jersey Constitution provides, "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press."

A determination of what speech is subject to the confidentiality requirement cannot be made without reference to the content of the speech. Courts have found similar confidentiality provisions to be content-based restrictions because they limit the "nature" of disciplinary complaints. See Doe v. Doe, 127 S.W.3d 728, 732 (2004); Doe v. Supreme Court of Florida, 734 F. Supp. 981, 985 (S.D. Fla. 1981); Petition of Brooks, 678 A.2d 140, 143 (N.H. 1996). Content-based restrictions are presumptively invalid and subject to strict scrutiny. See Horizon Health Ctr. v. Felicissimo, 135 N.J. 126, 140 (1994).

2. The current construction of Rule 1:20A-5 fails to serve a compelling state interest and is not narrowly tailored to meet asserted interests.

Under the strict scrutiny standard, the Office of Attorney Ethics has the burden to demonstrate that (1) the gag rule is necessary to serve a compelling state interest and (2) it is narrowly drawn to achieve that end.

As it once did in the context of attorney discipline, New Jersey's Office of Attorney Ethics presumably justifies the broad application of its confidentiality requirement by asserting the following three interests: (1) maintenance of the integrity of the fee arbitration system; (2) protection of lawyers from injuries stemming from frivolous claims; and (3) facilitation of investigations.

These interests are not sufficiently compelling to pass muster under the First Amendment. In an analogous case related to judicial discipline complaints, the United States Supreme Court struck down a disciplinary gag rule similar to the one still on the books in New Jersey because it found that the same grounds did not constitute "compelling interests." See Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978). In Landmark, the United States Supreme Court noted that "there is practically universal agreement that a major purpose of the First Amendment was to protect the free discussion of governmental affairs." Id. at 839. The Court therefore held that "injury to official reputation is an insufficient reason for repressing speech that would otherwise be free . . . [and] the institutional reputation of the courts is entitled to no greater weight in the constitutional scales." Id. at 842. Facilitating investigations is certainly a worthy goal, but it does not justify muzzling claimants and depriving them of their right to free expression.

Even if the fee committee's asserted interests were compelling, the interests are not narrowly tailored to serve those interests. With regard to the maintenance of the integrity of the fee arbitration system, an enforced muzzle on disciplinary matters is more likely to engender resentment, suspicion and contempt for the Office of Attorney Ethics than to promote confidence and respect.

Assuming arguendo that protection of reputation from damage caused by frivolous complaints may justify restriction of a claimant's right to expression, broad construction of Rule 1:20A-5 prohibits more speech than is necessary by preventing disclosure of well-founded complaints as well. In the same way that the United States Supreme Court held that a confidentiality requirement does not improve the reputation of judges, a rigid gag rule does nothing to ameliorate a longstanding American distrust of lawyers. See "Lawyers and the Legal Profession," Columbia Law Survey (2002) (showing that two-thirds of Americans do not believe lawyers are even "somewhat" honest).

In addition, the construction of Rule 1:20-9(a) is not narrowly drawn to facilitate investigations; in fact, forcing a claimant to keep information secret may actually hinder an investigation because it may limit access to third-party witnesses unknown to the claimant - individuals who may have come forward if they only knew that a claim had been filed.

An expansive construction of Rule 1:20-9(a) is not justified by compelling interests, and the asserted interests are not narrowly tailored by the language of the rule.

2. The Current Construction of Rule 1:20-9(a) Undermines New Jersey's Long-Established Traditions of Fairness and Sunshine.

In addition to intruding on the constitutional right to free speech, the current application of Rule 1:20-9(a) chips away at the very principles of evenhandedness and openness for which New Jersey has established a longstanding reputation.

II.A.

Application of Rule 1:20-9(a) to claimants fosters a perception of bias in the fee arbitration process.

The self-regulated nature of the New Jersey bar promotes a public perception of the fee arbitration system as unfair and claimant-adverse. The American Bar Association's 2006 Survey of Fee Arbitration Programs shows that lawyers outnumber non-lawyers by 2:1 on panels, and non-lawyers are never permitted to chair the panel.

HALT's members inform us that they feel they face a long set of odds when their case against an attorney is heard by a fee arbitration board. For thirty years, American Bar Association commissions, headed by former Supreme Court Justice Tom Clark, leading scholar Robert McKay and other nationally renowned ethics experts, have found that self-regulation often leads to an inherent, and certainly a perceived, bias in the disciplinary decision-making process.

II.B.

Application of Rule 1:20-9(a) to claimants undermines public confidence by imposing an unnecessary shroud of secrecy on fee arbitration proceedings.

Broad application of the gag rule runs contrary to New Jersey's history which favors principles of sunshine and participation in government affairs.

Notably, New Jersey was one of the first states to enact an Open Public Meetings Act, which provides in part:

The Legislature finds and declares that the right of the public to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies, is vital to the enhancement and proper functioning of the democratic process; that secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society . . . . N.J.S.A. 10:4-7 (2004).

By preventing people from speaking candidly about their experiences with the Office of Attorney Ethics, broad application of Rule 1:20-9(a) has insulated the fee arbitration system from public criticism and adopted a policy that is diametrically opposed to the legislature's strong preference for open government.

As applied to claimants, Rule 1:20-9(a) also conflicts with the principles behind New Jersey's whistleblower statute. New Jersey's Conscientious Employee Protection Act (CEPA) prohibits employers from taking retaliatory action against an employee for internally or publicly disclosing an unlawful or improper activity or policy of an employer. See N.J. Stat § 34:19-3 (2004). The New Jersey Supreme Court has held that the purpose of CEPA is to protect and encourage individuals to report illegal or unethical activities and "to discourage public and private sector employers from engaging in such conduct." Mehlman v. Mobil Oil Corp., 153 N.J. 163 (1998).

In silencing claimants, New Jersey's confidentiality requirement disregards the goals set forth in CEPA. When claimants are barred from telling anyone whether their claims are being reviewed, the public loses its watchdog on the fee arbitration system. There is simply no way of knowing whether the system is routinely favoring a particular lawyer or law firm, giving short shrift to legitimate claims or regularly making secret pleas with unethical lawyers rather than reimbursing victims. Broad application of Rule 1:20-9(a) effectively obviates the purpose behind New Jersey's whistleblower statute.

Considerations of fairness and New Jersey's tradition of sunshine and government oversight demand that claimants be permitted to speak publicly about claims they have filed against New Jersey attorneys.

3. Rule 1:20A-5 Conflicts with this Court's 2005 Decision in R.M. v. Supreme Court of New Jersey.

Two years ago, the Supreme Court struck down the attorney discipline system's overbroad confidentiality rule. See R.M. v. Supreme Court of New Jersey, 185 N.J. 208 (2005). The rule in question had barred complainants from publicly stating that an attorney discipline complaint had been filed and disclosing information about the disciplinary process.

Rule 1:20A-5 prohibits individuals who have requested fee arbitration from speaking about their claim or the fee arbitration process. Given the Court's ruling in R.M., the public is sent contradictory messages: you may speak freely when you file an ethics complaint against a lawyer but you must remain silent when you challenge his fees. Such a mixed message confounds the public and leads to one of two outcomes: (1) restrains their speech in both contexts out of an abundance of caution or (2) causes them to be held in contempt of court for inadvertently violating the fee arbitration gag rule because they were unclear about the circumstances under which they could speak freely. Either way, the public is left confused and frustrated with a system that they view as already stacked against them.

To maintain consistency and drawing from the same logic upon which this Court based its decision in R.M., the Court should amend the rules to clarify that those who file a fee arbitration claim have a right to speak openly about their claims and the fee arbitration process.

4. HALT's Recommendation

The Professional Responsibility Rules Committee's proposed amendment achieves a fair balance between ensuring that fee arbitration staff has the opportunity to conduct thorough investigations and guaranteeing that all other individuals are not denied the right to disclose information about a claim. The proposed amendment to Rule 1:20A-5 provides:

Disclosure by persons requesting fee arbitration. The requesting party may make public statements regarding the fee arbitration process, the submission and content of the fee dispute, and the result, if any, of the arbitration. If a requester speaks publicly, a respondent may speak publicly regarding the fact that a request for fee arbitration was submitted, the content of the dispute, the result of the arbitration if a result has [been] obtained at the point when the respondent speaks, and the fee arbitration process.

With this important amendment, the public will have a clear understanding of the Supreme Court's confidentiality requirement. With this clarity, claimants will feel much more at ease to discuss their fee disputes and will have the opportunity to report on the efficiency and fairness of the arbitration process. We believe that this increased oversight would help foster needed public confidence in New Jersey's fee arbitration system.

We urge the Supreme Court of New Jersey to pass this amendment so that Rule 1:20-9(a) will not be construed to restrain claimants' speech. With this important change, New Jersey can replace a fee arbitration system once tarnished by secrecy with a system characterized by openness and integrity.

Respectfully Submitted: HALT, Inc. By: Suzanne M. Blonder Senior Counsel