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Woman sues N.J. high court on gag rule

Wednesday, October 15, 2003

BY KATHY BARRETT CARTER
Star-Ledger Staff

The state Supreme Court unconstitutionally blocks free speech by preventing people who file ethics complaints against lawyers from speaking out about their cases, a Warren Township woman claims in a lawsuit filed yesterday.

The suit against the state's highest court contends its gag rule violates the First Amendment rights of people who believe they have been treated badly by their lawyer.

"Freedom of speech, freedom to petition the government for redress, criticism of government, and discussion of what government does is at the heart of the First Amendment," said Richard Gutman, the Montclair attorney representing the woman. Gutman said the woman is not named in the suit because she criticizes her attorney in the papers, in violation of the rule.

Under the rule, a person who files an ethics complaint against a lawyer is required to keep all communications about the complaint confidential. If the committee that reviews the complaint rules in favor of the lawyer, no public statements can ever be made about the case.

The penalties for violating the gag rule are not spelled out in the court rules, but Gutman said when a woman spoke out about a lawyer in a local newspaper in 1998, court officials warned her she could face administrative penalties or a civil lawsuit.

In comparison, when a complaint is filed against a doctor, the patient can talk about the allegations even if the Board of Medical Examiners does not discipline the physician.

The complaint filed yesterday in Mercer County Superior Court says the attorney at issue in the woman's case admitted she was guilty of minor misconduct. It also says the attorney is a public official and the woman believes she should be permitted to speak out about her.

Complaints against attorneys are made public only after a finding that there is a reasonable basis to believe the complaint is valid. Gutman said because 95 percent of the complaints are dismissed, the vast majority of people who complain are never permitted to discuss their cases in public.

John Paff, president of Citizens for Justice in New Jersey, Inc., an organization seeking to reform the state's attorney disciplinary system, has long criticized the gag rule.

"We test the decision-making of public officials all the time," said Paff. "Here, we are completely in the dark. Citizens have no way of testing the effectiveness of this attorney ethics process."

The New Jersey State Bar Association has been a major proponent of the rule, contending it is needed to protect the reputation of lawyers. Karol Corbin Walker, president of the bar association, could not be reached for comment late yesterday.

Winnie Comfort, a spokeswoman for the state Supreme Court, declined to comment on the lawsuit.

Kathy Barrett Carter covers the New Jersey Supreme Court and legal issues. She may be reached at kcarter@starledger.com or (609) 989-0254.