New Jersey state officials don’t have to pay to defend every legal headache their employees face—especially when those headaches involve professional ethics.
In a decision handed down Monday, the New Jersey Appellate Division ruled that the Office of the Attorney General (OAG) has no legal obligation to provide a defense or cover the costs for an assistant prosecutor facing a disciplinary complaint. The case, Dirkin v. Office of the Attorney General, marks the first time a state court has addressed whether the Tort Claims Act covers attorney ethics proceedings.
The legal saga began with Walter J. Dirkin, a deputy chief assistant prosecutor in Essex County. In 2023, Dirkin led a grand jury presentation against a volunteer accused of stealing from the New Jersey Arts Incubator. The jury returned a theft indictment, but the case quickly fell apart.
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The defendant moved to dismiss, claiming Dirkin had exculpatory evidence—specifically a contract proving the “volunteer” was actually an independent contractor—and chose not to show it to the grand jury. Dirkin eventually dropped the charges, claiming the contract was news to him, but the damage was done. By January 2024, the Office of Attorney Ethics (OAE) filed a formal complaint against him for failing to disclose evidence and a lack of diligence.
When Dirkin asked the Attorney General to step in and provide a lawyer, the state flatly refused. Dirkin appealed, backed by the County Prosecutors Association of New Jersey, arguing that since he was doing his job when the alleged misconduct happened, the state should protect him under the New Jersey Tort Claims Act (TCA).
The court didn’t see it that way. Writing for the three-judge panel, Judge Smith clarified that the state’s duty to defend its workers is largely tied to “tort claims”—lawsuits seeking money for injuries or civil rights violations.
An ethics complaint from the OAE is a different animal.
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“The OAE’s action against Dirkin was not a tort claim, but rather an attorney disciplinary proceeding,” the court noted. “It seeks no damages… Rather, it is directed to Dirkin’s conduct as a licensed attorney.”
While the Attorney General can choose to defend employees in “other proceedings” if it’s in the state’s best interest, the court found the OAG was well within its rights to decline this time.
A key factor? The nature of the accusations. Because the ethics complaint alleged “willful misconduct” rather than a simple mistake or negligence, the court ruled the Attorney General wasn’t being “arbitrary or capricious” by leaving Dirkin to handle his own defense.
The ruling sets a firm boundary: while New Jersey will back its prosecutors when they are sued by the public for doing their jobs, it won’t necessarily open the checkbook when those prosecutors are accused of breaking the rules of their own profession.
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