Opinion
No. 31 95 11
June 26, 1995
MEMORANDUM OF DECISION
The plaintiff, Stuart Melnick, asks this court to grant a temporary injunction enjoining the defendant, Statewide Grievance Committee (SGC), from proceeding against him. The SGC has moved to dismiss the action because Melnick has failed to exhaust the remedies provided by the grievance procedure.
The facts of this case are not materially disputed. Melnick is a member in good standing of the Bar of the State of Connecticut. On March 16, 1994, James Shannon made a complaint to the SGC. This complaint accused Melnick of engaging in a conspiracy to extort and intimidate him by filing a lawsuit concerning Shannon's dog. In his verified complaint to this court, Melnick alleges that Shannon's complaint to the SGC was libel per se.
On March 23, 1994, Melnick wrote to Shannon demanding that he retract the allegedly false statements that Shannon made in his complaint to the SGC and advising Shannon that a civil action would be brought against him if he did not do so.
That letter states in relevant part: "Re: Defamatory Complaint "Dear Mr. Shannon: "I was shocked and appalled to learn of your filing of an utterly baseless and defamatory complaint against me with the Statewide Grievance committee. Aside from the fact that I reside in the same condominium complex as you (which, despite what you may think, does not give rise to any `conflict of interest'), the conclusory (and wholly unsubstantiated) allegations set forth in your complaint are absolutely and completely baseless. Indeed, if your claims were in the least bit legitimate, I suspect you would have selected an alternate forum in which to assert them. Hr. Shannon, I will not tolerate your mean-spirited and ill-conceived attempt to disparage my reputation and integrity. Accordingly, if you fail to withdraw you bogus complaint and retract the fabricated allegations contained therein in writing and within seven (7) days hereof, I shall commence a civil action against you seeking both compensatory and punitive damages. "Very truly yours, "s/ Stuart L. Melnick "Stuart L. Melnick "cc: Atherton B. Ryan, Esq."
On April 7, 1994, as promised, Melnick filed a lawsuit against Shannon. That lawsuit alleged that by filing a grievance against him, Shannon was liable for abuse of process, defamation, vexatious litigation, and intentional or reckless or negligent infliction of emotional distress. Thereafter, Shannon filed a second grievance against Melnick. This grievance was filed with the local panel of the SGC.
On May 18, 1994, the local panel found that the first grievance lacked probable cause. The local panel did not address the second grievance. On August 18, 1994, a reviewing subcommittee of the SGC also found that Shannon's first grievance lacked probable cause. This reviewing subcommittee, however, sua sponte determined that probable cause existed to support Shannon's second grievance. The reviewing subcommittee was comprised of one attorney and one non-attorney.
A public hearing was scheduled for January 11, 1995. Two days before the hearing, Melnick filed this verified complaint seeking, inter alia, to enjoin the public hearing from convening. Melnick has also sought a declaratory judgment with respect to the legality of the SGC's actions.
The public hearing was originally scheduled for November, 1994. After Melnick appeared for this hearing, it was cancelled because the Statewide Grievance Committee did not have a court reporter.
Melnick seeks a declaratory judgment on several issues, which devolve into the following: (1) the SGC has no jurisdiction to determine questions of law; (2) the reviewing committee acted unconstitutionally when it found that probable cause supported Shannon's second grievance; (3) attorney Belinkie cannot serve as part of the reviewing committee and the SGC; (4) Melnick's acts were not misconduct as a matter of law; (4) Chester v. Wiley, Superior Court, judicial district of Hartford-New Britain at Hartford, No. 374862 (June 11, 1991, Hennessey, M., J.) has no force as a precedent; (5) it is wrong for the SGC to punish Melnick under Rules of Professional Conduct 3.5(c) or 8.4(d); (6) any action by the SGC violates Melnick's First Amendment rights; (7) Rules of Professional Conduct 3.5(c) and 8.4(d) are unconstitutionally vague; and (8) the SGC lacks subject matter jurisdiction to determine its own jurisdiction.
The SGC has filed a motion to dismiss claiming that this court lacks subject matter jurisdiction because Melnick has failed to exhaust his administrative remedies. "It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter. LaCroix v. Board of Education, 199 Conn. 70, 83-84, 505 A.2d 1233 (1986), quoting Connecticut Mobile Home Assn., Inc. v. Jensen's, Inc., 178 Conn. 586, 588, 424 A.2d 285 (1979). Furthermore, [b]ecause the exhaustion doctrine implicates subject matter jurisdiction, we must decide as a threshold matter whether that doctrine requires dismissal of the plaintiffs' claim. . . . [W]henever a court discovers that it has no jurisdiction, it is bound to dismiss the case, without regard to its previous rulings. (Citations omitted; internal quotation marks omitted.) Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556-57, 529 A.2d 666 (1987)." (Internal quotation marks omitted.) Polymer Resources, Ltd. v. Keeney, 227 Conn. 545, 557, 630 A.2d 1304 (1993). "`The doctrine of exhaustion is grounded in a policy of fostering an orderly process of administrative adjudication and judicial review in which a reviewing court will have the benefit of the agency's findings and conclusions. . . . The doctrine . . . furthers the salutary goals of relieving the courts of the burden of deciding questions entrusted to an agency . . . in advance of possible judicial review.' (Citation omitted; internal quotation marks omitted.) Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 557, 529 A.2d 666 (1987). Moreover, resolution of the issues at the administrative level may render judicial review unnecessary. See Housing Authority v. Papandrea, 222 Conn. 414, 420-21, 610 A.2d 637 (1992)." Id., n. 20.
However, "the statewide grievance committee is not an administrative agency. . . ." Weiss v. Statewide Grievance Committee, 227 Conn. 802, 811, 633 A.2d 282 (1993). It "is an `arm of the court' and is not a body in which the legislature has reposed general powers of administration of a particular state program with which it has been given statutory authority to act for the state in the implementation of that program." Sobocinski v. Statewide Grievance Committee, 215 Conn. 517, 526, 576 A.2d 532 (1990).
"Although the statewide grievance committee is not an administrative agency . . . the court's review of its conclusions is similar to the review afforded to and administrative agency." Weiss v. Statewide Grievance Committee, supra, 227 Conn. 810. Practice Book § 27N(a), adopted to govern appeals from decisions of the statewide grievance committee, provides: "A respondent may appeal to the superior court a decision by the statewide grievance committee reprimanding the respondent." Practice Book § 27N(f) provides: "Upon appeal, the court shall not substitute its judgment for that of the statewide grievance committee as to the weight of the evidence on questions of fact. The court shall affirm the decision of the committee unless the court finds that substantial rights of the respondent have been prejudiced because the committee's findings, inferences, conclusions, or decisions are: (1) In violation of constitutional, Practice Book or statutory provisions; (2) in excess of the authority of the committee; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, rescind the action of the statewide grievance committee or take such other action as may be necessary. For purposes of further appeal, the action taken by the superior court hereunder is a final judgment." These "provisions are so similar to the provisions of General Statutes § 4-183 of the UAPA that many of the same principles of law apply to appeals of the Committee's decisions." Barrett v. Statewide Grievance Committee, Superior Court, Judicial District of Hartford-New Britain at Hartford, No. 519143 (1993) ( Maloney, J.); Laviano v. Statewide Grievance Committee, Superior Court, Judicial District of Danbury, No. 30L586 (1993) ( Koletsky, J.). Many of the same principles underlying the doctrine of administrative remedies apply to actions brought against the Statewide Grievance Committee. Although exhaustion may not always be applied as strictly to such actions, since the court may entertain them without doing violence to the will of the legislature, a principle underpinning of the doctrine of exhaustion; United States v. Ruzicka, 329 U.S. 287, 290, 67 S.Ct. 207, 91 L.Ed. 290 (1946); Myers v. Bethlehem Shipbuilding Corporation, 303 U.S. 41, 50, 58 S.Ct. 459, 82 L.Ed. 638 (1938); United States v. Sing Tuck, 194 U.S. 161, 167, 24 S.Ct. 621, 48 L.Ed. 917 (1904); the doctrine is applicable here.
Practice Book § 27N provides in full: "Appeal from Decision of Statewide Grievance Committee To Reprimand "(a) A respondent may appeal to the superior court a decision by the statewide grievance committee reprimanding the respondent. The appeal shall be filed with the clerk of the superior court for the judicial district of Hartford-New Britain at Hartford within thirty days from the issuance, pursuant to Sec. 27M, of the decision. A copy of the appeal shall be served in accordance with Sec. 120 on the statewide bar counsel as agent for the statewide grievance committee. "(b) The filing of an appeal from a decision by the statewide grievance committee reprimanding a respondent shall not, of itself, stay enforcement of a decision of the statewide grievance committee. An application for a stay may be made to the court and shall be granted unless the court is of the opinion that the appeal is taken only for delay or that the due administration of justice requires that the application be denied. A stay, if granted, shall be on appropriate terms. "(c) Within thirty days after the service of the appeal, or within such further time as may be allowed by the court, the statewide bar counsel shall transmit to the reviewing court a certified copy of the entire record of the proceeding appealed from, which shall include the grievance panel's record in the case, as defined in Sec. 27F (f), and a copy of the statewide grievance committee's record in the case, which shall include a transcript of any testimony heard by it or by a reviewing committee which is required by rule to be on the record, any proposed decision by the reviewing committee in the case, any statements filed pursuant to Sec. 27J (g), and a copy of the statewide grievance committee's decision. By stipulation of all parties to such appeal proceedings, the record may be shortened. The court may require or permit subsequent corrections or additions to the record. "(d) The appeal shall be conducted by the court without a jury and shall be confined to the record. If alleged irregularities in procedure before the statewide grievance committee are not shown in the record, proof limited thereto may be taken in the court. The court, upon request, shall hear oral argument. "(e) The respondent shall file a brief within thirty days after the filing of the record by the statewide bar counsel. The statewide grievance committee shall file its brief within thirty days of the filing of the respondent's brief. Unless permission is given by the court for good cause shown, briefs shall not exceed thirty-five pages. "(f) Upon appeal, the court shall not substitute its judgment for that of the statewide grievance committee as to the weight of the evidence on questions of fact. The court shall affirm the decision of the committee unless the court finds that substantial rights of the respondent have been prejudiced because the committee's findings, inferences, conclusions, or decisions are: (1) In violation of constitutional, Practice Book or statutory provisions; (2) in excess of the authority of the committee; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, rescind the action of the statewide grievance committee or take such other action as may be necessary. For purposes of further appeal, the action taken by the superior court hereunder is a final judgment. "(g) In all appeals taken under this section, costs may be taxed in favor of the statewide grievance committee in the same manner, and to the same extent, that costs are allowed in judgments rendered by the superior court. No costs shall be taxed against the statewide grievance committee, except that the court may, in its discretion, award to the respondent reasonable fees and expenses if the court determines that the action of the committee was undertaken without any substantial justification. `Reasonable fees and expenses' means any expenses not in excess of seven thousand five hundred dollars which the court finds were reasonably incurred in opposing the committee's action, including court costs, expenses incurred in administrative proceedings, attorney's fees, witness fees of all necessary witnesses, and such other expenses as were reasonably recurred."
"There are some exceptions to the exhaustion doctrine, `although we have recognized such exceptions only infrequently and only for narrowly defined purposes. Pet v. Department of Health Services, 207 Conn. 346, 353, 542 A.2d 672 (1988), quoting LaCroix v. Board of Education, supra, [199 Conn.] 79. We have recognized that a party aggrieved by a decision of an administrative agency may be excused from exhaustion of administrative remedies if: recourse to the administrative remedy would be futile or inadequate; Greenwich v. Liquor Control Commission, 191 Conn. 528, 541-42, 469 A.2d 382 (1983); the procedures followed by the administrative agency are constitutionally infirm; LaCroix v. Board of Education, supra; or injunctive relief from an agency decision is necessary to prevent immediate and irreparable harm; Pet v. Department of Health Services, supra, [207 Conn.] 370." (Internal quotation marks omitted.) Polymer Resources, Ltd. v. Keeney, supra, 227 Conn. 561.
Melnick has advanced a panoply of reasons why this court should enjoin the SGC from proceeding, reminiscent of those cases in which the supreme court has cautioned that " [l]egal contentions, like the currency, depreciate through over-issue." (Internal citations and quotation marks omitted.) State v. Pelletier, 209 Conn. 564, 567, 552 A.2d 805 (1989). Suffice it to say that the lionshare of his claims do not fall within the ambit of the narrow exceptions which our appellate courts have "grudgingly carved" out of exhaustion doctrine. Labbe v. Pension Commission, 229 Conn. 801, 812, 643 A.2d 1268 (1994).
Melnick suggests four ways in which the reviewing subcommittee acted improperly in a procedural manner: (a) only one attorney and one person who is not an attorney constituted the reviewing subcommittee that found probable cause, (b) the reviewing subcommittee acted on a matter not before it, (c) the SGC improperly handled Shannon's second grievance, and (d) the reviewing subcommittee rendered a determination of law. While Melnick's claim that the reviewing subcommittee acted on a matter not it before does raise a substantial question, a scrutiny of the merits of each claim does not convince the court that this is a case where the statutory grievance procedure may be or ought to be by-passed.
Nor does the denial of Melnick's application result in irreparable injury to him as a result of the public disclosure of the grievance filed against him, under the current state of the law. Cf. Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 448-450, 645 A.2d 978 (1994). While this is unfortunate, in Connecticut in recent years such disclosures have not been attended by much, if any, publicity.
In Waterbury Teachers Assn v. Freedom of Information Commission, 230 Conn. 441, 645 A.2d 978 (1994), the defendant commission had ruled that closed meetings of the board of education committee on grievances at which grievances brought pursuant to a collective bargaining agreement had been discussed were illegal. The plaintiff teachers association appealed to the superior court. During the pendency of the appeals, the plaintiff moved, pursuant to general Statutes § 4-183(f) for a stay of any proceedings to enforce the decision of the commission. Id., 445-446. The trial court denied the motion for a stay and the plaintiff sought to appeal. The appeal was dismissed by the Appellate Court for the reason that the order appealed from was not a final judgment. The Supreme Court granted certification and affirmed. Said the court: "The plaintiff's contention that as a result of the trial court's action it must hold its grievance hearings in public during the pendency of this appeal devolves into a claim of irreparable harm. The plaintiff cannot show that it now holds the right to have such hearings conducted in private. That question will be determined by the administrative appeal. As in [ State v.] Longo, [ 192 Conn. 85, 91-93, 469 A.2d 1220 (1984)] the right of privacy that the plaintiff asserts in this case does not yet `exist independently of the order from which the appeal is taken.' Id." Waterbury Teachers Assn. v. Freedom of Information Commission, supra, 230 Conn. 449. "In Longo, [the supreme] court held that the trial court's order denying the defendant's application for youthful offender status was not an appealable final judgment. [The court] so held, moreover, despite the fact that `[o]nce the defendant undergoes a public trial or is detained with the general jail population, his privacy cannot be restored by a subsequent private trial or by subsequent segregation detention.' Id., 91." Id., 448. The court in Waterbury Teachers Assn. explained that "[t]he conclusion that the trial court's denial of a stay in this case is not a final judgment is consistent, moreover, with prior cases holding that similar claims of privacy rights may be lost pending an appeal. In Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 254, 520 A.2d 605 (1987), we held that a trial court order of disclosure and production was not a final judgment for purposes of appeal, despite the defendant's claim that the material ordered to be produced was protected by the attorney-client privilege and the work product doctrine, and that the order therefore fell within the second prong of Curcio. We rejected the defendant's argument that the order must be deemed final because its rights would be `inalterably concluded if it must, without appellate review, comply with the order by making the requested documents available to the plaintiff.' Id. We recognized that `a remand for a new trial resulting from an erroneous order to disclose information protected by the privilege cannot wholly undo the consequences of its violation. . . .'Id., 257. Nonetheless, we stated: "`Vindication at the appellate level can seldom regain all that has been lost by an erroneous determination of a cause in the trial court." In re Juvenile Appeal (85-AB), 195 Conn. 303, 311, 488 A.2d 778 (1985).' Id. "We further noted: `Our concern for the efficient operation of the judicial system, which is the practical consideration behind the policy against piecemeal litigation inherent in the final judgment rule, has induced us to dismiss appeals where statutorily created rights of privacy, no less significant than the right of confidentiality for attorney-client communications, have been at stake. Where those accused of crimes have claimed entitlement to treatment as juveniles or youthful offenders, we have recognized that our decree after a successful appeal from a conviction cannot restore the protection the legislature intended against publicity and other consequences attending an adult criminal proceeding. [ In re Juvenile Appeal (85-AB), supra, 195 Conn. 311]; State v. Longo, [supra, 192 Conn. 91]. We have concluded, nevertheless, that the harm caused by delay in the disposition of criminal cases likely to result from allowing interlocutory appeals where trial courts have denied youthful offender or juvenile treatment far outweighs the need to provide additional appellate remedies to implement the legislative purpose more effectively. In re Juvenile Appeal (85-AB), supra, 312.' Id., 258. In addition, we made clear that the same considerations applied to civil, as well as criminal, cases. Id. "The same reasoning applies to this case. The efficient operation of the judicial system, which depends upon the policy against piecemeal litigation inherent in the final judgment rule, strongly counsels against characterizing a denial of a stay pending appeal as a final judgment for purposes of appeal." Waterbury Teachers Assn. v. Freedom of Information Commission, supra, 230 Conn. 449-450. The same considerations militate in favor of requiring Melnick to exhaust remedy under the grievance procedures.
Melnick may not by this civil action by-pass the grievance procedure even though this court finds that, as a matter of law, there was no probable cause for the second grievance against him. The two-person subcommittee found probable cause that Melnick's letter to and lawsuit against Shannon was intended to disrupt the SGC in violation of Rule 3.5(c) of the Rules of Professional Conduct and that they were prejudicial to the administration of justice under Rule 8.4(d). The SGC's attorney has represented to the court that the subcommittee found probable cause based on (1) Melnick's bringing a lawsuit against Shannon for abuse of process, defamation, vexatious litigation, and tortious infliction of emotional distress in light of Chester v. Wiley, Superior Court, Judicial District of Hartford-New Britain at Hartford, No. 374862 ( 1991 Ct. Sup. 5159) (1991), and (2) the "tone" of Melnick's letter to Shannon which preceded the commencement of that lawsuit.
Rule 3.5(c) of the Rules of Professional Conduct provides: "A lawyer shall not . . . [e]ngage in conduct intended to disrupt a tribunal."
Rule 8.4(d) of the Rules of Professional Conduct provides: "It is professional misconduct for a lawyer to . . . [e]ngage in conduct that is prejudicial to the administration of justice."
With respect to the first basis for the finding of probable cause, it is so that in Chester v. Wiley, supra, the superior court ( M. Hennessey, J.) held that an action for defamation or negligent infliction of emotional distress may not be predicated on the defendant's statements made during a grievance proceeding or on the filing of the grievance itself. These, the court held, were absolutely privileged. Subsequent to Melnick's filing a lawsuit against Shannon, the holding in Chester v. Wiley was reiterated in Field v. Kearns, Superior Court, Judicial District of Fairfield, No. 3001282 (14 Conn.L.Rpts. No. 1, 35 (1995) (stating that "the public policy of protecting the courts and the public from unethical and unprofessional attorneys is so strong that there is absolute immunity for the complainant in filing or otherwise causing the institution of attorney disciplinary proceedings"), appeal pending, AC No. 14689. "Trial court cases, however, do not establish binding precedent. J.M. Lynne Co. v. Geraghty, 204 Conn. 361, 369, 528 A.2d 786 (1987)." Statewide Grievance Committee v. Presnick, 18 Conn. App. 316, 323n. 3, 559 A.2d 220 (1989). Since the causes of action asserted in Melnick's lawsuit are well-settled at common law, they do not, without more, give rise to a violation of the Code of Professional Responsibility.
Both Chester v. Wiley and Field v. Kearns relied on Petyan v. Ellis, 200 Conn. 243, 510 A.2d 1337 (1986), in which the supreme court extended the common law privilege accorded to statements made in judicial proceedings to statements made on a "fact-finding supplement" form from the employment security division of the state labor department in response to the filing of a claim for unemployment compensation by a former employee. The Petyan court cited with approval the decision in Magnan v. Anaconda Industries, Inc., 37 Conn. Sup. 38, 429 A.2d 492 (1980), rev'd on other grounds, 193 Conn. 558, 479 A.2d 781 (1984), which held that an employer who discharges an employee has an absolute privilege when supplying the information necessary for the "unemployment notice" required by regulation, since the information is furnished in connection with a quasi-judicial function of an administrative board. In DeLaurentis v. New Haven, 220 Conn. 225, 264, 597 A.2d 807 (1991), the court noted the distinction between statements made in pleadings and in court on the one hand and abuse of process by bringing unfounded actions for personal motives on the other. The former, held the court, are absolutely privileged. The latter are not and are actionable in tort. Id., 264. While recognizing that "[i]n presentment proceedings, the statewide grievance committee must prove by clear and convincing evidence that the attorney misconduct it alleges has occurred"; Statewide Grievance Committee v. Whitney, 227 Conn. 829, 838, 633 A.2d 296 (1993); the undeniable reality is that most grievances against attorneys are filed by persons not associated with the grievance committees, and do not arise sua sponte by the committee, its investigators or the court. It is still a fair ground of contention as to whether absolute immunity ought not attach to any document, whether or not characterized as "process", which sets in motion the wheels which can result in the destruction of a person's livelihood and the consequential devastation of her life. By analogy, "although public prosecutors and judges were accorded absolute immunity at common law . . . , such protection did not extend to complaining witnesses who, like [Shannon], set the wheels of government in motion by instigating a legal action." Wyatt v. Cole, 504 U.S. ___, ___, 112 S.Ct. 1827, 1831, 118 L.Ed.2d 504 (1992). As the United States Supreme Court has observed, "absolute immunity contravenes the basic tenet that individuals be held accountable for their wrongful conduct." Westfall v. Erwin, 484 U.S. 292, 295 (1988). Accordingly, absolute immunity has not been favored either the state level; Blakeslee Sons v. Carroll, 64 Conn. 223, 235, 29 A. 473 (1894), overruled in part, DeLaurentis v. New Haven, supra, 220 Conn. 263n. 22; nor at the federal level where the Supreme Court has been "quite sparing" in recognizing it. Buckley v. Fitzsimmons, 509 U.S. ___, 115 S.Ct. 2606, 2613, 125 L.Ed.2d 209 (1993), quoting Forrester v. White, 484 U.S. 219, 224 (1988).
As for Melnick's letter to Shannon; see note 1, supra; that document was unremarkable, reflected Melnick's understandable outrage and anger, yet fairly comported with the requirement that a plaintiff seeking other than actual damages demand a retraction before commencing an action for libel. General Statutes § 52-237.
General Statutes "Sec. 52-237. Damages in actions for libel. In any action for a libel the defendant may give proof of intention; and unless the plaintiff proves either malice in fact or that the defendant, after having been requested by him in writing to retract the libelous charge, in as public a manner as that in which it was made, failed to do so within a reasonable time, he shall recover nothing but such actual damage as he may have specially alleged and proved."
Notably, "Rule 3.5(c) requires that any conduct be accompanied by an intention to disrupt." ABA/BNA Lawyers' Manual on Professional Conduct, p. 61:901. The standard of conduct violative of this rule "would seem most likely to be met by conduct held to constitute criminal contempt." Id., p. 61:902. Nothing which Melnick has done has remotely approached such conduct. Rule 8.4(d)'s "proscription against conduct that is prejudicial to the administration of justice has been criticized by some commentators as too broad in scope, see Weckstein, Maintaining the Integrity and Competence of the Legal Profession, 48 Tex. L. Rev. 267, 275-76 (1970); as insufficient to give fair notice to lawyers, see Sutton, How Vulnerable is the Code of Professional Responsibility?, 57 N.C.L.Rev. 497, 502n. 13 (1979); and as leaving open the possibility that lawyers will be disciplined [as here] because of unorthodox or politically unpopular conduct or views, see Comment, ABA Code of Professional Responsibility: Void for Vagueness?, 57 N.C.L. Rev. 671, 685 (1979)." Id., p. 101:503. While the courts have generally upheld these provisions against attacks of unconstitutional vagueness and overbreadth, "[i]n some cases, courts have refused to find that conduct was prejudicial to the administration of justice where there was no showing that a lawyer actively interfered with a civil or criminal proceeding. [citations omitted.]." Id., p. 101:502. Even in those jurisdictions which have found misconduct under a broader interpretation of Rule 8.4(d), no case has been cited to or found by the court in which a violation was upheld based on facts even remotely analogous to those here. Id., p. 101:503.
It is difficult not to conclude that, in bringing a lawsuit against another member of the same condominium complex in which he lived albeit on behalf of another resident, then suing Shannon after the latter's grievance had been found to lack probable cause, Melnick was "looking for trouble." The State-Wide Grievance Committee, however, is not empowered to provide it, but to determine whether there has been attorney misconduct.
See note 1, supra.
The defendant's motion to dismiss is granted.
BY THE COURT
Bruce L. Levin Judge of the Superior Court