YOU’VE GOT A GRIEVANCE.  NOW WHAT?

* “We should all be obliged to appear before a board every five years and justify our existence . . . on pain of liquidation.” George Bernard Shaw

I. INTRODUCTION

In 2003, the Texas Legislature, as a result of the Sunset process, again examined the State Bar of Texas as it had done twice before. This time, the Legislature imposed extensive changes on the attorney disciplinary and disability procedural system as administered by the State Bar.

In the past, the Supreme Court of Texas has carefully guarded its authority and power to regulate the practice of law in Texas. In 2003, apparently the Court abdicated its historical role, bowing to the Legislature.

The referendum process was ignored, and for the first time, the members of the State Bar had nothing to say about the procedural system by which they will be governed in the disciplinary and disability process. This is a monumental change, and one without precedent in Texas. We can all speculate as to what caused this sea change in the way lawyers and their practice of law is governed, but the fact of the matter remains, the changes are real, substantial, and to many, puzzling.

We spend our professional careers providing advice and counsel to our clients in many substantive areas of the law. We hold ourselves out as competent to do so, and maintain that competence through a variety of means such as CLE, being mentored by our seniors, self-study, and discourse with our peers in the law. Unfortunately, most of us know very little about the procedural rules, and for that matter, the substantive rules that govern our own profession.

The adage that “A lawyer who represents himself has a fool for a client and an idiot for a lawyer” was never more accurate than when dealing with the new Texas attorney disciplinary and disability procedural rules. A recent case puts it bluntly and directly:

“As an attorney, the attorney is presumed to be familiar with the provisions of
the Rules of Disciplinary Procedure.” Santos v. Commission for Lawyer Discipline,
2004 WL 1116996 (Tex.App. – Houston [14th Dist.], May 20, 2004).

As recently as several months ago, I was met by a State Bar investigator whom I happen to know well prior to the commencement of a hearing. His comment to me was more warning than idle conversation. He said that upon the effective date of the new procedural rules, every respondent in the system would be required to open fully in his or her response. That has proved to be true.

Failure to respond comprehensively and extensively at the outset may result in a perfectly good defense being missed when the matter is screened by the Office of the Chief Disciplinary Counsel (OCDC).

There’s also bad news. Responding fully and openly to a grievance matter may involve making admissions against the respondent’s interests, and that isn’t good. Whatever you say in the response is a party admission, and will be admissible against you. I have observed many times perfectly competent attorneys responding to a grievance who place themselves in greater hot water than the initial grievance would have caused simply by not paying attention to their response and avoiding making admissions.

What started out as a simple failure to respond to the client’s phone calls can quickly dissemble into a major problem involving other potential misconduct based solely on the attorney’s response.

II. CURRENT DISCIPLINARY SYSTEM IN TEXAS

To understand the procedural changes in the Texas Rules of Disciplinary Procedure (TDRP), all of which are effective on and after 1 January 2004, you must first understand the steps in the system designed for the filing, commencement and handling of a grievance from initiation to completion.

The term “grievance” is now defined as any written statement from whatever source, apparently intended to allege Professional Misconduct by a lawyer, or lawyer disability, or both.” TDRP 2.10

1. Anyone can file a grievance. If a grievance is filed by a person with whom you had no attorney-client relationship, and your response may require revealing confidential information (See Rule 1.05, TDRPC), and you have no waiver from your client, you must not disclose that confidential information, and the OCDC cannot compel you to do so. There may be situations wherein you would seek a waiver to permit you to disclose, especially if the confidential information can provide a defense to the allegations of professional misconduct on your part.

2. If the grievance is classified as an “Inquiry” by the OCDC, meaning that even if true it does not constitute professional misconduct, then OCDC shall refer the Inquiry to voluntary mediation. TRDP 2.10

Being involved in voluntary mediation at this early stage has an additional salutary effect: it may reduce or eliminate a potential claim of legal malpractice or breach of fiduciary duty if the mediation is resolved substantially in your favor.

3. If the grievance is classified as a “Complaint”, meaning OCDC has taken the allegations as true, and the allegations do allege violation of one or more of the TDRPC, then the Respondent attorney is given a copy of the Complaint and a notice to file a response. This is the Respondent’s chance to file a full response with the caveats above regarding admissions and talking too much. TRDP 2.10

4. If a grievance is classified as an Inquiry by OCDC, the Complainant has the right to appeal that classification to the Board of Disciplinary Appeals for a review de novo.

NOTE that the Respondent attorney has no similar right of appeal of a classification of a grievance as a complaint. What that means is the complainant gets two bites of the apple to persuade first ODCD and then BODA that he or she has a legitimate complaint. The lawyer gets no bite of the apple at all.

5. There are no more Investigatory Hearings to determine whether “Just Cause” exists. That determination is now left to the Chief Disciplinary Counsel defined as the CDC and any and all of his or her assistants. TRDP 1.06(c)

“Just Cause” findings will be based on several things: the Complainant’s Grievance, the Respondent attorney’s response, and whatever investigation is undertaken by the OCDC.

If the Chief Disciplinary Counsel determines there is no Just Cause, the grievance is presented to a Summary Disposition Panel (SDP). That Panel can either approve the Chief Disciplinary Counsel’s finding or no Just Cause, or determine the matter go forward.

If the grievance is dismissed at the SDP, again it is referred to voluntary mediation.

6. If the grievance is not dismissed, it is placed on the hearing docket. The Respondent attorney is then finally and for the first time given specific notice of what the OCDC will rely on as to his or her acts and/or omissions that constitute professional misconduct, and what specific Disciplinary Rules OCDC contends the conduct violates.

The Respondent attorney then must make the election of whether to litigate in either District Court or before an Evidentiary Panel of the district grievance committee.

NOTE that any Respondent attorney who has represented himself or herself up to this point may have made admissions against interest, may not have exhaustively covered all available defenses and probably didn’t bother making any due process objections and claims. The Respondent attorney may have made admissions severe enough to warrant criminal prosecution (barratry, obtaining money under false pretenses, theft by a fiduciary, etc.), and now will have to litigate all of this either in District Court or before an Evidentiary Panel.

Is there any worse possible position to be in with your law license and livelihood on the line, not to mention the disgrace and humiliation even having to make the trip through the trial system?

III. WHAT ACTIONS SHOULD YOU TAKE IF YOU RECEIVE NOTICE OF A GRIEVANCE?

1. Hire competent counsel. Sure it will cost you something, but what is your license worth? Your counsel will maintain objectivity, which you probably cannot do. He or she will also be honest with you about what you are facing and the potential problems that may arise from it. Further, that counsel owes you exactly the same duties you owe your clients: full loyalty, honesty and his or her best efforts.

2. Copy the entire underlying client file as well as the grievance and get those items to your counsel immediately. Generally, the response period is thirty (30) days from the date of your receipt of the grievance. Failure to timely respond is a separate ethics violation. While you may have a perfectly good defense, failure to respond will get you in trouble. See 8.04 TDRPC

When copying the underlying client file to give to your attorney, copy everything for his or her review. Stuff that you might withhold when returning a file to a client such as your work product needs to be produced. Also things like office or telephone call logs, receptionist’s logs, notes of meetings, bank account records, letters of guarantee for service providers, emails or other electronic communications, etc. need to be disclosed to your counsel. He or she needs to provide you with honest and candid advice and explore each and every defense you may have. You cannot hold back something that could potentially harm you because the OCDC will get its discovery.

3. Get a Certificate of Good Standing from the Supreme Court Clerk’s office. It is cheap, and it will show, hopefully, that you have had no prior disciplinary or disability action(s).

4. Get affidavits from persons with knowledge of the facts to support your position and defenses. Of course, these will vary based on the fact pattern of the grievance and your attorney’s defensive theories. Affidavits from receptionists, secretaries, legal assistants, court reporters, and others regarding your practice of returning phone calls, being prompt for and courteous at depositions, promptly providing copies of documents to your clients, providing your clients with settlement sheets, keeping your clients informed during the attorney-client relationship, and the like will help.

Did your office equipment break down? If so, get an affidavit from the repairperson. Did a fire or a natural disaster destroy your records? Did your dog eat your case file? Explain in your own affidavit just exactly how that impacted the situation about which the Complainant has filed.

5. Was there a referring attorney involved, or did you have co-counsel in the client matter? Get an affidavit from that attorney.

6. Obtain copies of your cell phone bills and office phone bills. This can be helpful establishing who called whom and when.

7. If litigation is involved, get a copy of the entire court’s file, including the judge’s docket sheet.

8. Consult with and get an opinion from an ethics expert. While this is probably better left to your counsel, you may want to insist that he or she do so. The test for any expert is that in view of all of the facts alleged in the grievance, and the materials in the response as well as other materials, what you did could not constitute professional misconduct.

The expert should be someone both well versed in legal ethics and professional misconduct, and have credibility in dealing with the OCDC.

9. If the grievance involves an area of the law that Texas currently offers Board Certification, get an affidavit from a Board Certified lawyer in that area that he or she has reviewed the file and what you did, and your actions were consistent with the ethical practice of law in that area.

10. Do not assume that there is only one Rule violation. The OCDC does not have to tell you what Rule or Rules they believe your conduct violated. They just have to mail you a copy of whatever the complainant filed, and you have to ferret out what Rules may be contemplated.

Further, you make such an assumption at your own peril. You have this one chance to respond at this stage, and you had better hit everything you can to rebut the claims of the complainant. Otherwise, you can and will be hit out of the clear sky with a Rule you thought did not even apply to the set of facts alleged.

11. If possible you may still try to work out a resolution of the problem with the Complainant. Remember that if the complainant had an attorney assist him or her in writing and filing the grievance, you must work through that attorney.

While not binding on the OCDC, an affidavit that you and the Complainant have worked out your issues, the grievance was a matter of misunderstanding between you, that the Complainant no longer wishes to pursue the grievance and will not willingly appear as a witness for the OCDC, and that he or she sees no purpose in continuing the matter, will be helpful when OCDC is examining how it wants to use its resources. Chasing you with a reluctant witness versus chasing someone else wherein a witness is cooperative is a no-brainer.

12. Get a criminal history check on the complainant. You cannot attack the complainant personally, but you can attack his or her credibility.

IV. THINGS NOT TO DO AT THIS STAGE

1. Do not attempt to apply political influence on the OCDC. It’s like teaching a pig to sing. All it does is frustrate you and anger the pig.

2. Do not contact a member or members of the Commissioner for Lawyer Discipline (CLD). The CLD is the nominal party plaintiff in any disciplinary litigation whether before a District Court or an Evidentiary Panel. The CLD is represented by the OCDC, and the same rules apply to contacting a party represented by counsel.

You may contact someone who previously served on the CLD to get his or her appreciation of your situation, but hire them as a consulting expert so you maintain some limited amount of confidentiality between you and that person.

3. Do not request an interview with The Chief Disciplinary Counsel or one of her assistants or one of the OCDC’s investigators. They are not your friends. They are your adversaries. If you hire counsel, and you certainly need to do that, let them work through your attorney. You can only make additional admissions against your interest that will come back to haunt you later.

V. CONCLUSION

If you get nothing else out of this presentation, get that you must open fully and specifically respond to the allegations in the grievance. Your “first” response is the most important response you will make in the entire process, and it should be designed to extricate you at the point of “Just Cause”. Both the OCDC and the SDP are busy and have no time for game playing. Make your response exhaustive, leaving nothing to chance. Make your response readable, leave out legal arguments (let you attorney make those in his cover letter), and remember you are writing for the reader, not for yourself.

Otherwise, failure to follow these simply rules will potentially and probably result in trial of your grievance in public before either a District Court or an Evidentiary Panel.

And a “by the way”, if you have not yet done so, you ought to read the new procedural rules for an Evidentiary Panel. While that is something for another presentation, they have changed substantially also.