Most people have no idea how many times this law firm has represented lawyers successfully in malpractice lawsuits or grievance complaints before the State Bar. Yes, we have sued lawyers successfully many times, but we also defend lawyers and testify for lawyers. As an aid to the lawyers, I decided to write a little about the grievance process. And by process, I mean what happens once someone decides to file a grievance against you with the State Bar.
Typically, the process starts when someone files the standard grievance form. You should first know that anyone can file a grievance. It doesn’t have to be the client that complains to the State Bar about a suspected violation of legal ethics. The State Bar can even institute its own investigation although no complaint has been filed, but this does not usually happen unless there has been a criminal conviction or publicity over a lawyer’s bad behavior.
Once the grievance form is received by the State Bar, it is reviewed by State Bar staff attorneys and investigators to determine whether the facts alleged, if taken as true, would constitute an ethical violation. A grievance, for example, complaining that a lawyer refused to take a case would not state a violation of an ethical rule even if true. This is the best place to dispose of a grievance and many grievances are dismissed at this preliminary review level.
If staff concludes that no ethical violation is alleged, the grievance is classified as an Inquiry rather than a Complaint, and both complainant and lawyer are notified that the matter has been dismissed. The complainant then has 30 days to appeal to the Board of Disciplinary Appeals (BODA). If BODA affirms the classification as an Inquiry, the complainant has a right to a one-time amendment to add information that might convert the Inquiry into a Complaint.
If the grievance is determined to allege an ethical violation either by the staff or by BODA, it is classified as a Complaint and a copy is sent to the lawyer with a request for a response within 30 days. Some lawyers insist on filing their own response, although I continue to believe that the best practice is to be represented by counsel. Remember the value of what is at risk: your reputation and your right to practice law. You probably need counsel.
Extensions for the filing of a response are freely granted but are usually limited to 30 days. The biggest mistake a lawyer can make after receiving a request for a response is to fail to file the response on time. That failure is itself an ethical violation, regardless of the merits of the underlying Complaint. The second biggest mistake the lawyer can make is to file a self-righteous response attacking the complainant or the committee. I saw a response once where the lawyer put in all caps, “YOU ARE TAKING MY TIME AWAY FROM DESERVING CLIENTS WHO ARE COUNTING ON ME!” Remember, the staff employees of the State Bar and the grievance committee members are all just as busy as you. Be punctual, be factual, be courteous. You have the chance to end this here, so don’t blow it.
It is not unusual for there to be another round of responses by complainant and lawyer, but it is not required. Sixty days after the lawyer’s due-date for a response, the State Bar attorneys will determine whether there is “just cause” to pursue formal proceedings against the lawyer. This decision includes not only a review of the written materials filed, but also on occasion independent investigation by the State Bar of the facts underlying the complaint. Like prosecuting attorneys, the staff have the right to exercise their own discretion with regard to credibility issues and reject cases they do not want to prosecute. You obviously want that discretion exercised in your favor, so don’t do anything to make them mad or give them reason to go after you.
If staff determines that there is not just cause, the matter will be referred to the Summary Disposition Panel. You usually will receive notice of this referral, but this notice does not end the matter, so don’t celebrate yet. A month or so after you receive this notice, the staff will present your case (along with others) to the panel and request that they be dismissed without formal proceedings. If the panel agrees, the case is dismissed and both complainant and lawyer are so notified. There is no appeal from a dismissal by the Summary Disposition Panel.
Most of the time, the panels follow the staff recommendation, but in some small percent of cases the panel disagrees and refuses to dismiss, either requesting more information before determination of just cause or, alternatively, finding there is just cause based upon the facts presented. In that event, the staff must now proceed to investigate and prosecute the case.
Once a finding of just cause has been entered, the lawyer is so notified and is given an election on how to resolve the Complaint: either by a trial to be heard in a district court of proper venue with or without a jury or by an evidentiary panel composed of grievance committee members. A failure to elect automatically results in rejection of a trial in district court and an election to proceed to a hearing before an evidentiary panel.
This election is extremely important and can determine the outcome of the Complaint. The correct election will depend upon the facts of each case, but some of the differences between the evidentiary panel and the district court are as follows:
- the district court is a public trial with no rights of privacy;
- the district court strictly enforces rules of evidence and civil procedure;
- the district court has subpoena power and the power to enforce nonappearance;
- the district court has a right to a trial by jury, with traditional jury selection;
- the district court has a right of appeal to the traditional appellate process;
- the evidentiary panel presumably has a better understanding of the pressures of your law practice and the ethical rules than any jury ever will;
- the evidentiary panel, consisting of multiple lawyers and usually one lay member, can themselves question witnesses which can result in either multiple prosecutors or multiple defense attorneys, depending on the case;
- the evidentiary panel decision can be appealed to BODA; and
- the evidentiary panel proceeding is confidential, and the panel can issue a private reprimand if appropriate.
There you have the grievance process in a nutshell. Here’s hoping you never have to experience any of this firsthand. If you do, and you believe we can assist you, call us. We would be honored to help.