In a first-impression ruling, the panel held that disciplinary proceedings brought by the Office of Attorney Ethics are not "actions" under the Tort Claims Act that trigger mandatory defense or indemnification obligations for state employees.
Walter J. Dirkin, a deputy chief assistant prosecutor in the Essex County Prosecutor’s Office, sought representation from the state after the Office of Attorney Ethics filed a complaint alleging he violated Rules of Professional Conduct 1.3 and 3.8(d). The ethics complaint accused Dirkin of failing to present exculpatory evidence regarding a defendant’s status as an independent contractor to a grand jury in State v. Anderson.
Dirkin argued that the Office of the Attorney General was obligated to provide a defense under the mandatory provisions of N.J.S.A. 59:10A-1 and indemnification under N.J.S.A. 59:10-1. He contended that the Tort Claims Act’s language covering "any action" brought against a state employee on account of acts within the scope of employment included attorney disciplinary proceedings.
The Appellate Division rejected that interpretation, relying on prior precedent defining the scope of the Tort Claims Act. The court noted that the New Jersey Supreme Court has previously concluded that disciplinary rules serve purposes substantially different from those of an individual litigant in a civil action.
"The OAE's complaint alleging violations of the RPCs arises from Dirkin's duties as an assistant county prosecutor but seeks no damages on behalf of the defendant in the underlying indictment," the opinion stated. "Rather, it is directed to Dirkin's conduct as a licensed attorney."
The panel distinguished Dirkin’s case from the state’s mandatory defense obligations in tort or civil rights claims. The court cited In re Napoleon, a 1997 Appellate Division decision holding that a disciplinary hearing commenced by a licensing authority is not a civil action for damages, and therefore does not compel state defense under the Tort Claims Act.
Dirkin also argued that the Attorney General should have exercised discretionary authority to defend him under N.J.S.A. 59:10A-3. The court affirmed the Office of the Attorney General’s denial, finding no abuse of discretion and noting that the ethics complaint framed Dirkin’s actions as "willful misconduct" rather than negligence.
Under the Tort Claims Act, the Attorney General may decline to defend an employee if the act or failure to act was due to willful misconduct. The court found substantial evidence to support the Office of the Attorney General’s determination that Dirkin possessed documents that the ethics complaint characterized as credible, material, and exculpatory.
The panel also rejected Dirkin’s arguments that common law doctrines of respondeat superior or a newly imposed common law duty required the state to provide representation. The court noted that respondeat superior requires an underlying tort claim, which was absent in a disciplinary proceeding.
The County Prosecutors Association of New Jersey filed an amicus brief supporting Dirkin, arguing that the Office of the Attorney General’s denial was arbitrary and capricious. The court affirmed the agency’s final decision, finding substantial evidence to support the conclusion that the disciplinary action fell outside the scope of mandatory state defense.
The three-judge panel consisted of Judges Currier, Smith and Jablonski.