# Matter of Hearing on Immunity for Ethics > Supreme Court of New Jersey · July 3, 1984 · 96 N.J. 669 URL: https://www.frixlaw.com/law-library/cases/9643110 ## Case - **Full name:** In the Matter of the Hearing on Immunity for Ethics Complainants - **Court:** Supreme Court of New Jersey - **Decided:** July 3, 1984 - **Citations:** 96 N.J. 669; 477 A.2d 339; 1984 N.J. LEXIS 2680 - **Precedential status:** Published - **Opinion:** Dissent by Clifford - **Judges:** Wilentz, Clifford, Pollock, Garibaldi - **Cited by:** 26 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9643110 ## How later opinions describe it (automated extraction) - holding absolute privilege not affirmative defense to claims of abuse of process and malicious prosecution - explaining that grievant’s public defamatory statements are actionable ## Opinion text CLIFFORD, POLLOCK and GARIBALDI, JJ., dissenting. In the face of so balanced, so fair, so dispassionate a presentation of the contending points of view as is found in the majority opinion, one is hard-pressed to wax indignant. Ordi *680 narily, a decision that unfairly demeans lawyers, unnecessarily demoralizes the bar, and unwisely produces a cheeky overriding of a long-standing legislative policy might otherwise invite a touch of bombast, maybe a little withering scorn here, some acceptable hyperbole there. But by its measured articulation of our position the Court’s opinion has effectively taken the wind out of our sails. There is little to add. This decision comes down, plainly and simply, to a judgment call. The question has been with us at least since Toft v. Ketchum, 18 N.J. 280 , cert. denied, 350 U.S. 887 , 76 S.Ct. 141 , 100 L.Ed. 782 (1955), whose rule the Court now reinstates, and it has repeatedly been decided by the narrowest of margins—4-1-2 in Toft , 5-5 in Justice Sullivan’s committee (see ante at 671-72), and today by a 4-3 vote. That record strongly suggests that reasonable people can reasonably arrive at opposite conclusions. For us, the negatives of immunity for grievants in ethics matters and clients in fee arbitration cases outweigh the affirmatives. Acknowledging that we cannot say it better than he, we align ourselves with Justice Jacobs in Toft, supra, who reminds us that attorneys-at-law are professionals who follow a common calling in a spirit of public service and nonetheless so because they thereby earn their livelihood. Throughout our country’s history they have been in the forefront in promoting the public welfare and much is owed them for their ever continuing leadership in defense of democratic institutions. They play a vital part in our judicial system which displays such high solicitude for civil liberties and individual rights and, while they are periodically subject as a class to false attacks, they readily withstand them by adherence to their dedicated task of furthering the interests of justice. But when these attacks become irresponsibly malicious and individualized they wrongfully place in jeopardy the reputation and very livelihood of the particular practitioner involved; and while the individual attorney is entitled to no greater judicial protection under these circumstances than the law affords to those who follow other professions and occupations, he is, in all justice, entitled to no less. The contrary holding, that those who devote so much of their lives towards attaining equal protection under law for others should be denied it for themselves, seems ironic indeed. [ 18 N.J. at 290 (Jacobs, J., concurring).] *681 We respectfully suggest that in its zeal to protect the public interest, the Court has gone too far and bent over backwards. The needs of the public are fully met in the qualified immunity afforded by N.J.S.A. 2A:47A-1, specifically designed to overcome the rule of Toft . The statute allows a lawyer to bring suit against an ethics complainant for malicious prosecution only when the lawyer has been accused “falsely and maliciously and without probable cause * * The impact of the Court’s decision is to embrace a wholly contrary view: it deprives lawyers of recourse for the damage and indignity visited upon them by clients’ complaints that are inspired by nothing more than pure malice and sheer viciousness. Surely we can attain our goal of public confidence in the bench and bar without adopting this extraordinary position. We are inclined to agree that the Court has the power to adopt the Rule in question, but we question the wisdom of its exercise. A healthy respect for the Legislature, whose competence to make policy judgments concerning immunities no one questions, warrants our deferring to the legislative determination as expressed in N.J.S.A. 2A:47A-1. This is not the field on which to risk a confrontation with the Legislature — a confrontation predicated on the entirely unwarranted assumption that lawyers, at least as perceived by the public, are a shifty lot. Judge Humphreys, in Friedland v. Podhoretz, 174 N.J.Super. 73, 81 (Law Div.1980), characterizes Toft’s reception in other jurisdictions as “underwhelming.” Understandably so. Rule 1:20-11(b), which codifies Toft , strikes us as bad policy and just plain wrong. Hence, our votes against adoption of the Rule. For adoption of rule —Chief Justice WILENTZ and Justices SCHREIBER, HANDLER and O’HERN—4. Opposed —Justices CLIFFORD, POLLOCK and GARIBALDI—3. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9643110. Public record. Not legal advice.