No matter how careful you are, sooner or later, someone is likely to file a grievance claiming you committed professional misconduct. And no matter how long you’ve been practicing law, it’s upsetting to learn that this has happened.
Fortunately, most grievances are dismissed without being docketed as complaints. If a grievance is docketed as a complaint, it can still be dismissed without the necessity of a hearing. Very few complaints result in findings of professional misconduct, and of those, suspension and disbarment are extremely rare sanctions.
If you find yourself on the receiving end of a grievance letter, here are a few things to keep in mind
First, a grievance is easy to lodge
The attorney discipline system exists to protect the public. It would not be serving that purpose if it was exceptionally hard to file a grievance. Indeed, it is extremely easy to do. If you go to the web site, and click, “Filing a Grievance,” a simple, fillable form opens right in front of you. Fill in the blanks, swear what you said is true, and your grievance is filed. If the alleged conduct occurred within two years, and there is at least a superficial claim that the attorney violated a rule of professional conduct, which need not be cited or even described, the grievance will be assigned to one of three lawyers on the General Counsel side of the office. That person will investigate the matter to determine whether the grievance meets the criteria for docketing.
Second, you can, and probably should, respond to the grievance
When General Counsel gets the grievance, they will provide the lawyer with a copy of it. At that point, they can require a response from the lawyer; if they do, this is compulsory, and the failure to respond is itself a violation of the rules of professional misconduct. More often, they will give the lawyer the option of responding. It is generally a good idea to take them up on the offer, but you need to keep two things in mind.
- First, the turnaround time is quick, usually about three weeks, and extensions are not favored. It will probably take you about ten hours to do your research and respond, so, plan accordingly.
- Second, you need to respond carefully and thoughtfully, without being defensive, without attacking the grievant, and without (inadvertently) giving the office a reason to think the grievance warrants further investigation. This is one piece of writing that you need to have someone read before you submit it – preferably someone who has insight into the operation of the discipline system. If your response is too emotional, too aggressive, or too disorganized, you may be causing General Counsel to look harder for a reason to docket the grievance, when what you want is for them to see how the allegations do not implicate any rule of professional conduct.
If you do this right, the matter will probably end. If you don’t, it might end anyway, or you might turn a questionable grievance into a credible complaint.
Third, while a grievance is easy to file, it’s hard to prove
The Attorney Discipline Office rightly takes every grievance seriously, whether it comes from a judge, or a convicted felon. However, when evaluating a grievance, it is asking one question: can Disciplinary Counsel (the prosecutor) demonstrate a violation of a rule of professional misconduct before a hearing panel by clear and convincing evidence? It’s a difficult burden, and they have no interest in sending the case on as a complaint if there is no readily apparent path to proving a rule violation. Thus, if the attorney discipline system is a funnel, it is very wide at the top, meaning almost every grievance enters, but it narrows significantly at the base, meaning very few cases get further than the grievance stage. It’s like a very selective college in that just about anyone can apply, but only a small percentage gain admission. In all likelihood, the grievance filed against you will not make its way to the complaint stage, and it will be dismissed either by General Counsel on their own initiative, or by the Complaint Screening Committee on General Counsel’s recommendation.