State Bar Grievances – Don’t Let a Fool Represent You!
Receiving a grievance from the State Bar is not a pleasant experience for anyone. Your initial response may be disbelief: “this is ridiculous, I didn’t do that!”; anger: “what an ungrateful client, I got her the best possible settlement”, or a hasty plan of action: “I may have messed up, but I can simply deny, deflect or minimize the allegation and it will go away.”
These are all normal reactions to an accusation of wrongdoing, but it is a huge mistake to act on these impulses and respond to the grievance on your own. The old saying “he who represents himself has a fool for a client” certainly applies to State Bar grievances.
We have represented far too many attorneys who received a grievance, responded on their own behalf, and made matters worse. As discussed below, the State Bar’s disciplinary process is nuanced and presents many hazards to those unfamiliar with it. If you receive a grievance, don’t risk your license and reputation by representing yourself. Promptly retain counsel experienced in State Bar disciplinary matters.
Overview of State Bar Disciplinary Process
The State Bar’s disciplinary regime is intended primarily to provide clients with recourse against attorneys who have committed ethical violations. Anyone can file a grievance; however, we see most grievances being filed by clients. Indeed, clients who are simply unhappy with the outcome of the representation or who seek to avoid paying attorney fees have been known to file grievances. Moreover, there is no requirement that the grievant be a current or former client; third parties (e.g. treatment providers with liens or opposing counsel) are entitled to file grievances. Further, the State Bar may file a grievance sua sponte if it receives notice of a potential violation, including, for example, where it has received notice of an IOLTA account overdraft or referral from a judge.
Upon receipt of a grievance, the State Bar conducts a preliminary review. This is sometimes referred to as the “screening” portion of the disciplinary process. Grievances that are facially frivolous may be dismissed without requiring any input from the attorney accused. Otherwise, the grievance is mailed to the attorney with instructions to respond in writing within a specified time –typically fourteen (14) days. The response is screened by an attorney in the State Bar Office of the General Counsel (“Grievance Counsel”). A copy of the response is provided to the grievant who is permitted to file a written rebuttal. If a rebuttal is filed by the grievant, Grievance Counsel typically notifies the attorney and permits a reply, although the rules do not require the State Bar to provide a copy of the client’s rebuttal. Next, Grievance Counsel reviews the record and has the authority to dismiss the grievance or refer it to the State Disciplinary Board for further investigation. If referred to the State Disciplinary the attorney will be served with a Notice of Investigation.
The Notice of Investigation will cite the Georgia Rules of Professional Conduct (“Georgia Rules”) believed to have been violated and request a second written response which must be verified as to its accuracy and truthfulness. The verified response will be reviewed and investigated further by a State Disciplinary Board lawyer member. The grievant may be provided a copy of the verified response and given an opportunity to submit a rebuttal. Following its investigation, the State Disciplinary Board has several options, including dismissing the case outright, issuing a letter of instruction (this is not considered discipline), issuing a Formal Letter of Admonition (this is the lowest level of confidential discipline), imposing a confidential Board reprimand, or finding probable cause for possible public discipline. In certain cases, the Board could refer the attorney for evaluation by an appropriate medical or mental health professional. If the Board finds probable cause for public discipline, the case will be referred to the State Bar Office of the General Counsel to file a Formal Complaint.
Formal Complaints are subject to the procedures of the Georgia Civil Practice Act. A special master, acting as a trial judge, will be appointed by the Supreme Court to oversee the litigation, and eventually conduct an evidentiary hearing and make findings of fact and conclusions of law. Following the hearing, the special master will file a Decision and Order with the State Disciplinary Board articulating the grounds for public discipline. Once the disciplinary recommendation has been made, the respondent attorney or the Office of General Counsel has thirty days to request a review by the State Disciplinary Review Board. Absent a request for such review the case proceeds to the Supreme Court and both parties are considered to have waived their right to file exceptions or request oral argument. The Supreme Court then considers the entire record and renders a decision either adopting or rejecting the proposed discipline. The Supreme Court is not bound by the Special Master’s Decision and Order and may reject the proposed discipline if it is not supported by the record or if the record is incomplete. If rejected, the case is remanded to the Special Master for further proceedings. Otherwise, the Supreme Court will issue a written decision (there is no right to a hearing) and final judgment imposing discipline. There is no right to appeal and a request reconsideration would likely be futile.
Disciplinary proceedings can be settled prior to the entry of judgment by negotiating with Grievance Counsel a Petition for Voluntary Discipline, which contains, among other things, explicit and detailed admissions of fact sufficient to justify proposed discipline. However, as a practical matter, settlement negotiations will likely be more productive if begun early in the disciplinary process, rather than late in the process after Grievance Counsel and the Special Master have invested significant time and resources prosecuting the matter.
Retaining Experienced Counsel Is Critical
Properly defending a grievance requires an intimate knowledge of the substance of the Georgia Rules, including the procedural rules that govern disciplinary proceedings, which rules are substantially different than those governing civil practice. In addition to being fluent in the Georgia Rules, disciplinary counsel should have a good working relationship with the attorneys in the Office of the General Counsel.
An attorney who represents herself in a State Bar disciplinary matter, even if she possesses the above competencies, will be hard pressed to remain objective and interact unemotionally with Bar Counsel. This can be particularly problematic in cases where the facts are not materially in dispute and a resolution (Petition for Voluntary Discipline) is in the respondent attorney’s best interest. A Petition for Voluntary Discipline necessarily requires contrition and in most cases, representations about corrective action, facts regarding mitigation, and agreement on aggravating facts. Having experienced counsel work through this process with you provides a guardrail against the natural tendency to be defensive and rationalize mistakes, which can undermine resolution.
And, in cases where the facts are in dispute, experienced counsel will craft a response that navigates appropriately between disclosing too little or too much (e.g. admitting allegations without first confirming all of the facts). All too often, we have had to rectify the consequences of attorney clients who initially defended themselves by saying too little, which creates the appearance of stonewalling, or who admitted allegations without first verifying the facts and law.
In short, responding to a grievance on your own is very risky and may well prejudice your defense. The smart move is to promptly retain counsel experienced in these matters. Chandler Law, LLC, has over twenty-eight years of collective experience representing attorneys in a wide range of disciplinary matters and is happy to speak with you to determine if it can be of assistance.
