Opinion
DOCKET NO. A-2932-11T2
03-11-2013
ANGELA M. ROPER, ESQ., and ROPER & TWARDOWSKY, L.L.C., Plaintiff-Appellants/ Cross-Respondent, v. MICHAEL STEIN, ESQ.; PASHMAN STEIN; JANICE DIGENNARO, ESQ., and RIVKIN RADLER, L.L.P., Defendants-Respondents/ Cross-Appellants.
Kenneth S. Thyne argued the cause for appellants/cross-respondents Angela M. Roper and Roper & Twardowsky (Roper & Twardowsky, L.L.C. attorneys; Mr. Thyne, on the brief). John T. Whipple argued the cause for respondents/cross-appellants Michael Stein and Pashman Stein (Pashman Stein, attorneys; Mr. Whipple, on the brief). John J. Robertelli argued the cause for respondents/cross-appellants Rivkin Radler (Rivkin Radler, L.L.P., attorneys; Mr. Robertelli, of counsel and on the brief; Anita Cohen, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner, Yannotti and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4980-11.
Kenneth S. Thyne argued the cause for appellants/cross-respondents Angela M. Roper and Roper & Twardowsky (Roper & Twardowsky, L.L.C. attorneys; Mr. Thyne, on the brief).
John T. Whipple argued the cause for respondents/cross-appellants Michael Stein and Pashman Stein (Pashman Stein, attorneys; Mr. Whipple, on the brief).
John J. Robertelli argued the cause for respondents/cross-appellants Rivkin Radler (Rivkin Radler, L.L.P., attorneys; Mr. Robertelli, of counsel and on the brief; Anita Cohen, on the brief). PER CURIAM
Plaintiffs Angela Roper, Esq., and the law firm of which she is the senior partner, Roper & Twardowsky, L.L.C. (the Roper firm), appeal from a February 3, 2012 order dismissing their Law Division complaint for failure to state a claim, R. 4:6-2(e). Defendants Pashman Stein, Janice DiGennaro Esq., and Rivkin Radler, L.L.P. cross-appeal from an April 27, 2012 order, denying their motions for counsel fees for plaintiffs' filing of an allegedly frivolous complaint. Because the Law Division judge correctly dismissed the complaint as a matter of law and did not abuse his discretion in denying the counsel fee motion, we affirm.
I
Like the trial court, we must view the allegations of the complaint as true for purposes of a motion to dismiss. Valentzas v. Colgate Palmolive Co., 109 N.J. 189, 192 (1988). However, we need not repeat in detail here the various allegations the parties have leveled against each other. Suffice to say that this dispute arose out of hard-fought attorney malpractice litigation filed in another jurisdiction.
During the malpractice litigation, Kenneth Thyne, Esq., an associate of the Roper firm, which represents the malpractice plaintiffs, filed an application for admission pro hac vice. His adversaries responded by filing an ethics complaint against Thyne with the New Jersey Office of Attorney Ethics (OAE), asserting that his application contained certain false statements.
In the course of the OAE's investigation, the OAE learned that Roper had signed the jurat attesting to Thyne's signature on the pro hac vice application. The OAE then pursued a grievance against Roper, alleging that she attested to Thyne's signature knowing that his application contained the allegedly false statements. The OAE subsequently dismissed the grievance against Roper, after determining that it could not prove she read Thyne's application, as opposed to simply attesting to the genuineness of his signature.
Apparently the grievance against Thyne is still pending.
In their Law Division complaint, plaintiffs alleged that their adversaries in the out-of-state malpractice case hired a well-connected New Jersey law firm as "ethics counsel," for the purposes of filing, and encouraging the OAE to expedite, the grievance against Thyne, and filing a meritless grievance against Roper. They contended that defendants pursued this course for the improper purpose of interfering with the Roper firm's ability to represent its clients in the malpractice lawsuit. In arguing the motion to dismiss, plaintiffs' attorney contended that he should be permitted to depose not only his adversaries but the assigned OAE investigator, in order to create a factual record.
Defendants responded by asserting, among other things, that the ethics complaint against Thyne was entirely legitimate; they had no involvement in the ethics grievance against Roper; a lawsuit based on the filing of an ethics grievance was barred by absolute immunity; and the Law Division complaint was frivolous and ill-motivated.
In an oral opinion issued February 3, 2012, the motion judge determined that the complaint must be dismissed. Based on Rule 1:20-7(f) and prior opinions from our Supreme Court, he reasoned that the lawsuit was barred by the absolute immunity which the Rule provides for grievants and witnesses in attorney ethics complaints. The judge declined plaintiffs' request that he "carve out an exception" from the Rule, concluding that the Law Division had no authority to depart from Supreme Court precedent. The judge further found that, in addition to being barred by Rule 1:20-7(f), the suit was barred by the litigation privilege.
He did not reach the issue of whether the complaint stated a claim for malicious prosecution.
In a subsequent oral opinion, on April 27, 2012, the judge denied defendants' motions for counsel fees under Rule 1:4-8 and N.J.S.A. 2A:15-59.1 based on their claim that plaintiffs pursued a frivolous lawsuit. The judge accepted plaintiffs' argument that the suit was not frivolous. He found that, particularly in light of the history of split decisions by the Supreme Court on the issue of retaining the immunity rule, plaintiffs had made a good faith argument for the extension or modification of existing law. See N.J.S.A. 2A:15-59.1b(2); R. 1:4-8(a)(2). Citing Alpert v. Quinn, 410 N.J. Super. 510, 545-46 (App. Div. 2009), certif. denied, 203 N.J. 93 (2010), the judge further considered that self-represented law firms were not entitled to a counsel fee under either the Rule or the statute. See Segal v. Lynch, 211 N.J. 230, 264 (2012).
II
The current state of the law is clear. In 1984, the Supreme Court determined, as a matter of policy, to re-establish the rule of immunity for the filing of ethics grievances against attorneys. In re Hearing on Immunity for Ethics Complainants, 96 N.J. 669 (1984); see Toft v. Ketchum, 18 N.J. 280, cert. denied, 350 U.S. 887, 76 S. Ct. 141, 100 L. Ed. 782 (1955). Accordingly, pursuant to Rule 1:20-7(f), a person who files or cooperates in the investigation of an ethics grievance is absolutely immune from suit. The investigators and other employees of the OAE are likewise absolutely immune from suit. R. 1:20-7(e). While lawsuits are barred, an attorney who believes that the OAE has acted improperly in filing or investigating an ethics grievance may file a grievance with the Disciplinary Review Board or the Clerk of the Supreme Court. R. 1:20-7(j)(1), -7(j)(2).
As the Court explained in Hearing on Immunity, supra, 96 N.J. at 672, the Legislature adopted a statute, N.J.S.A. 2A:47A-1, designed to overrule Toft and permit lawsuits by attorneys for the malicious filing of ethics complaints. However, in Hearing on Immunity, the Court invalidated the statute and reinstituted the rule of absolute immunity. Id. at 677-78.
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On this appeal, plaintiffs once again argue that an exception should be carved out for law firms that use attorney ethics complaints as a litigation tactic to harass their adversaries. Defendants respond that the case law and the Court Rules are clear on this issue; they require no change as a matter of policy; and, in any event, this court has no more authority than the Law Division has to render a decision that is contrary to Supreme Court precedent. Defendants also point out that allowing litigation of the type filed here would expose attorneys to lawsuits for complying with their obligation under R.P.C. 8.3(a), to report unethical conduct by other lawyers.
We agree with the motion judge that a decision whether to amend the rule of absolute immunity is vouchsafed exclusively to the Supreme Court. We could not accept plaintiffs' invitation to "carve out an exception" to the rule, even if we were inclined to do so. See Rodriguez v. Cordasco, 279 N.J. Super. 396, 405 (App. Div.), certif. denied, 142 N.J. 451 (1995). Accordingly, we affirm the order dismissing the complaint.
Addressing the cross-appeal, we follow the well-established rule of deference to a trial court's decision on a motion for counsel fees. See McDaniel v. Man Wei Lee, 419 N.J. Super. 482, 498 (App. Div. 2011). We will disturb the trial court's determination only for abuse of discretion and where we find "'a clear error in judgment.'" Ibid. (quoting Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)). We find no abuse of discretion here. We affirm the motion judge's decision, substantially for the reasons stated in his oral opinion issued on April 27, 2012. Defendants' appellate contentions require no further discussion, beyond the following comments. R. 2:11-3(e)(1)(E).
We agree with the motion judge that the complaint was not frivolous, because it sought a change in the law on an issue as to which the Justices have not historically been unanimous. See R.M. v. Supreme Court, 185 N.J. 208, 233 (2005); Hearing on Immunity, supra, 96 N.J. at 679-81. If the Court were to adopt the exception for which plaintiffs advocate, it is not clear how or whether such an exception would affect the litigation privilege on which defendants rely.
Moreover, plaintiffs had no opportunity to conduct discovery, and therefore could not establish whether defendants in fact filed, or asked the OAE to file, the grievance against Roper. Consequently, we cannot determine on this record whether plaintiffs' allegation, that defendants filed the ethics grievance against Roper, was frivolous.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION