Freda Wolfson

Cathy Cardillo, a retired attorney, filed a federal 42 U.S.C. Section 1983 civil rights action against officials involved in the New Jersey fee arbitration process and a former client, alleging that her rights to procedural due process were violated by inadequate notice of the proceedings commenced against her. Plaintiff had retired from the practice of law and moved to Portugal where she lived when a former client filed a claim and the fee arbitration committee unsuccessfully endeavored to perfect service against her by certified mail. When she did not respond, the committee ruled in the arbitration proceedings, in her absence. Cardillo sought to have the arbitration reopened and unsuccessfully appealed the award to the DRB. Other efforts within the state judiciary to seek review or have the matter reconsidered were denied, and the Supreme Court clerk advised that, under the court rules, the DRB decision was unreviewable pursuant to Rule 1:20-16(d).

Despite the federal defendants' failure to raise any jurisdictional challenge to the 1983 action, in Cardillo v. Clerk, Supreme Court of New Jersey, on March 7, 2018, Judge Freda Wolfson sua sponte inquired whether the District Court had jurisdiction to review a challenge to the final decision in the state fee arbitration process. As she pointed out, federal courts cannot consider non-jurisdictional issues without being satisfied they have subject matter jurisdiction, and the “Rooker-Feldman doctrine … [is] jurisdictional in nature,” footnote 3 at 4. In essence, under that doctrine, federal courts are not appellate courts that review final state court determinations and judgments.

Under Application of LiVolsi, 85 N.J. 576 (1981), and Rules 1:20A-3(c) and 1:20-16(d) of the Rules Governing the Courts of New Jersey, as amended after the LiVolsi opinion, there is only a limited appeal from a determination of a fee arbitration committee to the DRB, and there is no subsequent review. Hence, Ms. Cardillo's federal action was essentially a challenge to the DRB's decision upholding the service by certified mail required by the rules, even though, as she asserted, the mail could not be forwarded from the address she provided upon leaving practice (as required by court rules) to her actual address in Portugal. Judge Wolfson concluded that the present complaint was, in essence, an appeal that was expressly precluded under state law, and dismissed Ms. Cardillo's complaint.

We have concerns about the underlying issue. Email addresses must now be provided by New Jersey attorneys as part of the annual registration process. We see no reason why they should not provide a means of service. Secondly, we are concerned about the lack of review of a fee arbitration award by a judge, or panel of judges, if only on a discretionary basis. As Judge Joseph Irenas suggested in Forchion v. ISP, 240 F. Supp. 2d 302 (D.N.J. 2003), in the absence of a “decision by a state court,” there must be reviewability of a constitutional challenge, and Rooker-Feldman would not apply.

Nevertheless, although the decision is not for publication, Judge Wolfson's opinion does serve as an important reminder to members of the New Jersey bar: first, because of the New Jersey Supreme Court's extraordinary power over admission and discipline of attorneys, disciplinary proceedings in New Jersey fall within the Judicial umbrella and therefore the Rooker-Feldman doctrine relating to judicial decision-making; second, there is no appeal, by petition for review or otherwise, from a decision of the DRB with respect to a fee arbitration, and under the rules, review by the DRB is limited; and finally, an attorney, even upon retirement and closing his or her office, must be sure to review and comply with our rules to assure that, among other things, he or she provides an address or process to guaranty receipt of notice of any subsequent proceedings against them as attorneys.

Editorial Board member Anne Singer recused from this editorial.