ON APPEAL FROM THE DISTRICT OF NEW JERSEY (D.C. Civil No. 78-0273)
Before Adams, Weis and Sloviter, Circuit Judges.
Lennox S. Hinds, a New Jersey attorney, was served by the Middlesex County Ethics Committee with a formal statement of charges arising out of comments made by Hinds in a press conference during the jury selection phase of a criminal trial. The charges initiated disciplinary proceedings. Hinds and three plaintiff organizations*fn1 filed suit in federal district court against the Ethics Committee seeking an injunction against those disciplinary proceedings and a declaratory judgment that the disciplinary rules under which Hinds had been charged are unconstitutional. The district court granted the defendant's motion to dismiss on the grounds that abstention under the doctrine of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), was required in deference to an ongoing state proceeding. We find abstention inappropriate because the proceeding before the Ethics Committee fails to guarantee to Hinds an adequate opportunity to make his constitutional arguments.
The events began with the publication of two newspaper articles in January 1977 which described a press conference held in connection with the criminal trial of Joanne Chesimard, then underway in state court. They reported that Hinds made statements highly critical of the trial judge's judicial temperament and racial sensitivity, of the jury selection process, and of the other conditions under which the trial was being conducted. Among the statements attributed to Hinds were references to the state court proceeding as "a travesty", "legalized lynching", and "a kangaroo court." One article referred to Hinds as "one of Joanne Chesimard's lawyers." The other article identified Hinds as executive director of the National Conference of Black Lawyers. It stated accurately that Hinds had represented Joanne Chesimard "in a separate federal civil suit challenging the conditions of her isolation cell confinement in the Middlesex County Jail but is not a member of the five-lawyer defense team" in the criminal trial.
Although there were no complaints to the Ethics Committee about Hinds' alleged statements, these articles were submitted to the Ethics Committee by one of its members, David M. Foley, acting on his own initiative. In February 1977 the Ethics Committee directed Foley to investigate the statements reported to have been made by Hinds. After Hinds released the contents of a letter to him from Foley about the pending Ethics Committee's investigation, the Ethics Committee voluntarily suspended the investigation until the conclusion of the Chesimard trial. Thereafter Foley resumed his investigation and reported to the Ethics Committee his conclusion that Hinds' statements violated DR 1-102(A)(5) and DR 7-107(D) of the Code of Professional Responsibility. Those rules state in pertinent part:
(5) Engage in conduct that is prejudicial to the administration of justice.
(D) During the selection of a jury or the trial of a criminal matter, a lawyer or law firm associated with the prosecution or defense of a criminal matter shall not make or participate in making an extra-judicial statement that he expects to be disseminated by means of public communication and that relates to the trial, parties, or issues in the trial or other matters that are reasonably likely to interfere with a fair trial....
Foley recommended that a statement of charges be prepared and served upon Hinds. The Ethics Committee accepted the recommendation and voted to prepare a formal statement of charges against Hinds, which was served on Hinds on January 3, 1978.
Instead of filing an answer to the charges pursuant to the New Jersey procedure for bar disciplinary proceedings, Hinds and the plaintiff organizations filed this action. The district court granted defendant's motion to dismiss the complaint based on Younger abstention, holding that "the principles of comity and federalism dictate that the federal court abstain so that the State is afforded the opportunity to interpret its rules in the face of a constitutional challenge."*fn2
At plaintiffs' request, the district court reopened the case to take evidence that would permit plaintiffs to establish the existence of the degree of bad faith and harassment necessary to bring the case within Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965), an exception to the general rule of abstention under Younger. After plaintiffs conducted extensive discovery, the court held hearings but concluded, after two days, that plaintiffs had failed to meet their burden of proof to establish that the case fell within the Dombrowski exception. The district court stayed the disciplinary proceedings pending this appeal.
The Younger doctrine of abstention, developed in the last decade, operates to limit the power of the federal courts to enjoin pending state proceedings when a federal plaintiff's claim of unconstitutionality can be raised and timely decided in the state proceedings. Younger abstention is not applicable when, inter alia, the state proceedings do not realistically afford plaintiff that opportunity, Gibson v. Berryhill, 411 U.S. 564, 93 S. Ct. 1689, 36 L. Ed. 2d 488 (1973); when the state proceedings have been brought in bad faith or to harass plaintiff, Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965); or when the state statute in question is totally infected by blatant unconstitutionality, Younger v. Harris, 401 U.S. at 53-54, 91 S. Ct. at 754-755. When the abstention doctrine is inapplicable, the federal courts retain their "virtually unflagging obligation ... to exercise the jurisdiction given them." Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S. Ct. 1236, 1246, 47 L. Ed. 2d 483 (1976). In order to determine whether abstention by the district court was mandated under the Younger doctrine, we must examine in some detail New Jersey's scheme for disciplinary proceedings.
The Supreme Court of New Jersey is charged by the state constitution, Article 6, section II, paragraph 3, with responsibility for discipline of members of the state bar and has promulgated Rule 1:20, the court rule governing the investigation, hearing and review of complaints against attorneys. Pursuant to that rule, a complaint must move through three tiers in the disciplinary process.*fn3
1. District Ethics Committee (R. 1:20-2).
The District Ethics Committees are authorized to receive information relating to allegedly unethical conduct by a member of the bar. R. 1:20-2(e). The members of the District Ethics Committees, appointed by the Supreme Court, include attorneys and, since 1979, non-attorney members. R. 1:20-2(b). When information is received, the member designated by the Supreme Court as chairman assigns a member who is an attorney to review and inquire into the facts to decide whether a formal complaint should be filed. Based on that member's report, the chairman decides whether to close the inquiry or to proceed to the filing of a complaint. R. 1:20-2(h).
The complaint must contain a statement, signed and sworn to by the complainant, stating the facts constituting the allegedly improper conduct, the disciplinary rules asserted to have been violated, and whether, so far as is known, the same or similar complaints have been considered by any ethics committee. R. 1:20-2(i).
The attorney whose conduct is in question has ten days to answer, and may include in the answer "circumstances of a mitigating nature bearing on the charge." R. 1:20-2(j). Thereafter the chairman, based on a report prepared by the preliminary investigating member of the District Ethics Committee, must decide whether there is a prima facie indication of unethical or unprofessional ...