I Tip My Hat to the New Constitution.

Giannini v. Rosenberg, No. 11-3542 (June 8, 2012 D.N.J.) is a case which examines the process of bringing a malpractice suit while an ethics charge is still pending. This case is being presented to show the various levels of complaints which are available to Plaintiffs as well as how the systems work in harmony when discussing Constitutional claims.

The suit was based on a tangential relationship between the plaintiff and the defendant. The plaintiff was formerly a head of a home-owner's association, which was subsequently represented by the defendant. Eventually, the attorney discovered a financial problem which originated during the Plaintiff's term. As a result, the defendant, Rosenberg, sued Giannini for the missing money. Giannini claimed that she had maintained a 25 year client/attorney relationship with Rosenberg based in large part on his representation of the association which was tantamount to representing her as an individual.

Furthermore, in the lawsuit between Giannini and Rosenberg, the plaintiff was represented by her brother, a New Jersey licensed attorney. Giannini lost the lawsuit alleging her of financial malfeasance, and when judgment was issued, her brother moved to dismiss the judgment. It was these motions which Rosenberg believed to support an ethics charge with the State of New Jersey. Giannini's brother believed the ethics investigation was a Constitutional violation, and thus filed a charge of legal malpractice against Rosenberg. The court declined to hear the case concerning the legal malpractice claim, but the question is why?

The primary reason the court declined to hear the legal malpractice claims, and the subsequent charges regarding ethics violations by Giannini against Rosenberg was because of a case called Younger v. Harris, 401 U.S. 37 (1971). Since part of Giannini's case involved charges of constitutional violations based on the state law action, the state court had to rule on the ethics charges first. Younger instructs that a federal court abstain to afford a state a chance to interpret its own rules of law in "the face of a Constitutional challenge."

In Younger, which this court followed, the Justices noted the responsibility of State governments in regulating the practice of law. Thus, the State of New Jersey theoretically gets first dibs on any case alleging malpractice by an attorney. This is because the Constitution of New Jersey vests attorney disciplinary authority in the State Supreme Court. Thus, when a person files an ethics complaint against an attorney,New Jersey considers it as a complaint filed with the State Supreme Court. If a person's Constitutional claims against an ethics committee or arising from their practices can be decided by a State Supreme court without dangers of unfair prejudice, the federal courts should abstain from hearing the case.

Part of the malpractice case filed by Giannini involved a claim of civil conspiracy between Rosenberg and a State disciplinary board attorney. There was a decision at the time of the suit, however, Giannini appealed the case, and thus it was pending at the time of this decision. The federal court then pared the case down to two questions which required answers from the New Jersey Supreme Court. The first question to be answered was whether Giannini deserved sanctions based on his behavior, and the second was whether he was a victim of Constitutional violations during the ethics hearing. Giannini failed to provide the court with any reason why New Jersey could not handle that investigation, and thus the federal court refused to hear his claim.

Giannini did raise one more issue, that Rosenberg and the ethics investigation attorney were not parties to the board hearing. However, the court found that any ethics hearing would also be a ruling on the appropriateness of those people, since if there was a Constitutional violation, those parties would be responsible. Those findings were necessarily intertwined with the ethics case, thus any ruling, according to the federal court would be taking away state jurisdiction. The court based their refusal to hear the legal malpractice issue on the same grounds, that State law was primarily involved, and any case would be taking jurisdiction from the proper court.

Overall, the importance of this case is that Giannini jumped the gun slightly. Had he waited until the end of his appeal, perhaps the court would have heard the case. However, because of the filing of claims in the New Jersey Supreme Court, any action by a court outside the State of New Jersey court system would have been premature, and any ruling likely overturned.

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