The Open Refusal Defense To Compliance With Court Orders

The New Jersey Supreme Court has censured an attorney for violation of court orders in a hotly-contested divorce case.

Notably (and without explanation), the court rejected the recommendation of a divided Disciplinary Review Board for a three-month suspension. 

The four dissenting DRB members had proposed a censure.

The rejection of the “open refusal” defense is explained by the Disciplinary Review Board

we interpret New Jersey RPC 3.4(c) as follows. If, in an ethics proceeding, an attorney invokes the open refusal exception to RPC 3.4(c) as a defense to an allegation that the attorney has failed to comply with a court’s order in violation of that Rule, the trier of fact must assess whether that attorney has made some showing of the following four elements: (1) the attorney openly refused to comply with an obligation under the rules of a tribunal; (2) the open refusal was based upon the assertion that no valid obligation existed; (3) that the assertion was made in good faith, from the subjective perspective of the attorney; and (4) that the assertion was an objectively reasonable attempt to test the legal validity of the legal obligation. Because the open refusal exception is offered as a defense to an allegation that an attorney violated RPC 3.4(c), the burden of proof shall be on the attorney, consistent with R. 1:20-6(c)(2)(C), to satisfy all four elements.

Thus, under the open refusal exception, a lawyer cannot unilaterally and surreptitiously flout a court order. In such a case, the lawyer shall be required to have either sought further appellate review or to comply with the court’s order under protest while preserving the issue for a subsequent appeal. A failure to appeal or otherwise challenge a judgment shall reflect lack of a good faith belief that no obligation existed to comply with that judgment.

To be clear, we are not adopting a new rule that would somehow require only a prospective application and allow respondent to evade discipline in the instant matter. Rather, we are articulating what a reasonable reading of the existing R. 3.4(c) would lead any attorney to understand about its safe harbor provision.

In that spirit, we do not hesitate to impose discipline in the instant matter. Respondent has unabashedly refused to comply with any of the New Jersey court orders entered in the Doblin litigation and has stated his refusal to comply with the orders was based upon his belief that they are invalid. However, respondent’s own statements, both at the ethics proceeding and in his federal filings, make it clear that he lacks a good faith belief that the orders he has refused to comply with are invalid. Respondent also agrees with us that an open refusal to comply with a court order must be “objectively reasonable.” Here, respondent’s persistent refusal to comply with the Doblin orders is not an objectively reasonable attempt to test the legal validity of the Doblin orders.

Specifically, in the federal matter, respondent did not request that the federal court vacate the Doblin sanction orders; in any event, such a remedy is barred by the Rooker-Feldman doctrine. Nor has respondent requested that the New Jersey courts vacate the Doblin sanction orders following the Court’s denial of his motion for reconsideration nearly three years ago (after waiting more than two years following receipt of the Court’s denial of his motion for reconsideration to take any action at all in the Doblin case).

Respondent has exhausted the legal remedies available to him to challenge the four New Jersey court orders at issue. What remains is only his personal disagreement with the courts’ determinations underlying the orders. Thus, his opinion alone cannot form a good faith – or objectively reasonable – belief that the orders themselves are invalid or that he is not obligated to comply with them. Respondent simply cannot demonstrate that he subjectively held a good faith belief that the Doblin orders were invalid. Respondent conceded, in his federal filing, that he needed to continue his open refusal to comply with the orders in order to have standing in the federal case. Moreover, respondent himself
implicitly admitted the Doblin orders are valid by unequivocally stating that, if he were to receive a monetary award from Michael in the federal matter, he would use such an award to pay the court-ordered sanctions in the New Jersey matters. If respondent genuinely believed the Doblin orders were invalid, he would not have explained, two separate times, how he intended to pay the sanctions.

DRB proposed sanction

Thus, considering respondent’s extended misconduct, and after balancing the significant aggravating and minimal mitigating factors present in this case, we determine that a three-month suspension, with the added condition that respondent satisfy the sanctions orders against him prior to reinstatement, is the quantum of discipline necessary to protect the public and preserve confidence in the bar.

Vice-Chair Singer, and Members Boyer, Joseph, and Menaker voted to impose a censure with the same condition.

Finally, we unanimously grant the OAE’s unopposed motion for a protective order in this matter. The record is replete with references to confidential material concerning the Doblins and their son. Further public disclosure of that information serves no public interest when it is respondent’s admitted refusal to comply with court orders that is the subject of the disciplinary proceeding.

(Mike Frisch)