What Not To Do When the Fan Starts Slinging What Just Hit It (Part 3 of 4)
Getting Help With Malpractice Claims And Bar Grievances (Part III of IV)
Introduction
The most recent Report of the General Counsel of the State Bar of Georgia (“State Bar”) reported that 2,394 grievances were filed. Grievances filed in Georgia each year increase on average because it is a lot easier today for someone to file a grievance than it was a few years ago. With regard to grievances that were not dismissed at the initial screening stage, but continued on to the Disciplinary Board, 21 attorneys received formal letters of admonition and 30 received letters of instruction. In 86 cases the Disciplinary Board made a finding of probable cause of a violation of the Georgia Rules of Professional Conducts (“Georgia Rules”), which resulted in referral to State Bar Office of General Counsel for the filing of public formal complaints. Finally, as a result of referral to the Office of the General Counsel, 7 attorneys were suspended from practice, 3 received public reprimands, and 13 were disbarred or voluntarily surrendered their law license.
Also in the past year, we have seen an increase in the number of IOLTA account nonsufficient funds notices (“NSF”) issued by banks to the State Bar. Indeed, last year 255 NSF notices were issued, including 10 that resulted in disciplinary proceedings. Two of the lawyers got off the hook rather easily in that they were simply referred to the State Bar Law Practice Management division for in-firm audits and practice management direction.
In Part I of this four-part series, we discussed what a lawyer should do upon receipt of a malpractice claims notice letter from a claimant’s attorney. In Part II, we turned to discuss what initial steps a lawyer should take before responding to a State Bar grievance and also discussed some common reasons why grievances are filed. In this installment, we discuss what a lawyer should and should not do after reporting the grievance to his malpractice insurance carrier.
This Bar Grievance is Poppycock! I’m Going to Respond Myself and Nip This in the Bud!
Receiving a grievance can be one of the most traumatic experiences in an attorney’s professional career. Chandler Law has spent a lot of time writing about how to avoid grievances, but what do you do if you receive one? How you respond, and the type of assistance you seek, is absolutely critical in minimizing the disruption to your practice as well as the disposition of the matter. Just like receiving a malpractice claims notice letter, here too, Rule Number One after receiving a grievance is DO NOT PANIC! Once the initial shock wears off, most attorneys tend to follow one of three paths:
- Do nothing. I’m going to ignore this [expletive] thing. There’s no merit, and my client was a ne’er do well anyway.
- Spill their guts. I’ll overwhelm the State Bar and the grievant by discussing every minute detail.
- Respond effectively. Keep reading below.
Stage 1: The Screening Stage
Once the grievance is received by the State Bar (or initiated by the State Bar on its own authority), the grievance is reviewed and processed. A copy of the grievance and any supporting materials filed by the grievant are then mailed to the respondent lawyer. A cover letter from one of the State Bar’s prosecutors is included and explains the due date of any response. Ordinarily, the State Bar gives the respondent lawyer two weeks from the date of the letter to file a response to the grievance. If the mail is slow, then the window of time to file a response can become very narrow. Reasonable extensions of time to file an initial response are sometimes granted. In some rare cases, the State Bar’s grievance screening lawyers determine that there is not sufficient information to support a violation of the Georgia Rules and dismiss the grievance without requiring the respondent lawyer to file a response. Indeed, there have been cases where the first the lawyer knew of someone filing a grievance against him was when he received a copy of the grievance dismissal letter from the State Bar’s screening lawyer sent to the grievant. You can only imagine the simultaneous shock and sudden relief!
What Should the Initial Response Look Like?
After carefully considering the allegations in the grievance, you should meet with your defense lawyer to review and strategize the next steps. In doing so, you are acting prudently because a carefully drafted initial response to the grievance will not only improve your chances of a quick dismissal, but will also minimize the possibility and severity of discipline should the complaint have merit and progress from the screening stage to the Disciplinary Board stage of the process. Using the appropriate format, tone, flow, and advocacy in your responses to the grievance can improve the chances of success and minimize the potential damage. After working with hundreds of attorneys through this process, here is the most effective way to react and respond:
- Get over it. This really did happen. Compartmentalize it and deal with it.
- Read it cover to cover. Most are only a few pages. Also, review the client file, emails, texts and other electronic messages to refresh your memory. Hopefully, you kept a copy of the client’s file if the client requested it be returned.
- Respect the deadline. In most cases, you have about two weeks to file your initial response. You do not want to get a phone call reminding you that you have missed a deadline. In some cases, failing to respond could result in an interim suspension of your law license until you file a response.
- Draft your response. Work with your counsel and try to link each allegation to the Georgia Rule allegedly violated and then respond showing how you complied with the Georgia Rule (or how the particular Georgia Rule is not even at issue). The State Bar attorney reviewing the grievance response will analyze it in this fashion, so crafting your response accordingly will facilitate their review. Submit whatever supporting evidence you have, even unsigned drafts, images, and notes.
A copy of your initial response is sent to the grievant and the grievant is invited to file a rebuttal. The State Bar does not automatically supply a copy of the grievant’s rebuttal to you or your counsel, so follow up by your counsel to obtain any rebuttal can be of paramount importance.
Stage 2: The Disciplinary Board—This Thing is Getting Real!
If the State Bar’s grievance screening attorneys, after the initial response, and after any rebuttal filed by the grievant, believe there is evidence to show a Georgia Rule violation, they will send the grievance to the Disciplinary Board. Soon thereafter, the respondent attorney is served with a Notice of Investigation (“NOI”). This documents the acknowledgement of the charge, the alleged Georgia Rule violation(s), the Board Member (and staff investigator if applicable) assigned to investigate, and the opportunity to respond in writing under oath. A list of active Board Members is also provided, and the respondent attorney also receives notification of the right to challenge the competency, qualifications, or objectivity of any Board Member.
Once service of the NOI is acknowledged, the clock starts running for what is normally a 30-day window for the respondent attorney and your counsel to file a verified response. Here are four general themes in responding to the Disciplinary Board:
- I didn’t violate any Georgia Rule.
- I may have technically violated a Georgia Rule, but not the intent or spirit thereof.
- There were extenuating circumstances.
- I did violate a Georgia Rule. Have mercy on my soul.
As the respondent attorney, this is your last opportunity to keep the matter confidential. Remember, this does not mean that you are tried and convicted. If there was a communication breakdown at the initial stage, fix it now and ensure that the response is 100% accurate. If you get caught in a misstatement or dishonest action, you could be charged with additional violations such as Georgia Rule 8.4(a)(4) for professional misconduct involving dishonesty, fraud, deceit or misrepresentation. If you and/or your counsel determine that your acts or omissions did amount to a violation, this may be the time to admit it and suggest appropriate punishment. The Disciplinary Board may look favorably upon what is known as a Voluntary Petition for Confidential Discipline, particularly if there are mitigating factors, no aggravating factors, and no prior disciplinary history.
The Disciplinary Board stage of the process can take any number of months to conclude. During those months, the assigned Disciplinary Board member will review the grievance screening file, review your verified response (there may be several depending on the number of alleged violations), speak to and collect additional information from the grievant, and contact any third parties for information or materials relevant to the investigation. Given the many months that it may take to complete this second stage of the disciplinary process, it goes without saying that the investigation by the Disciplinary Board member will be thorough. When the investigation is concluded, the member will make a report to the full Disciplinary Board at one of its monthly meetings. The Disciplinary Board will ask questions of the member and could request that the member make additional inquiries and investigate additional issues.
During the Disciplinary Board stage, it is helpful if your counsel can keep an open rapport with the member. Not all members are open to communicating with counsel for the respondent lawyer, but those who do communicate can make the process more tolerable and possibly even reduce your anxiety.
In the fourth and final part of this series, we will discuss what sort of actions the Disciplinary Board can take, and how those actions could affect your decisions, your practice and your professional reputation.
