What Not To Do When the Fan Starts Slinging What Just Hit It (Part 4 of 4)

Getting Help With Malpractice Claims And Bar Grievances (Part IV of IV)

Introduction

In the recent Report of the General Counsel of the State Bar of Georgia (“State Bar”), it was reported that 2,394 grievances were filed in a twelve month period. That’s about one grievance for every 14 licensed Georgia attorneys who are in good standing with the State Bar. Of those grievances that were not dismissed at the initial screening stage, but resulted in a Notice of Investigation and continued on to the Disciplinary Board, 21 attorneys received formal letters of admonition or Disciplinary Board Confidential Reprimands, and 30 received letters of instruction to educate and inform the respondent lawyer about the Rules of Professional Conduct (“Georgia Rules”). In 86 cases the Disciplinary Board made a finding of probable cause of a violation of the Georgia Rules, which resulted in referral to State Bar Office of General Counsel (“Office of General Counsel”) for the filing of public formal complaints for further prosecution. Where formal complaints are filed, the Supreme Court appoints a Special Master to preside over the disciplinary litigation and conduct an evidentiary hearing. Finally, as a result of referral to the Office of General Counsel for public discipline, the Supreme Court suspended seven attorneys from practice, three lawyers received public reprimands, and 13 were disbarred or voluntarily surrendered their law license.

As the Office of General Counsel’s report noted, members of the Disciplinary Board handles an average of twelve to fifteen cases  a year. Individual members of the Disciplinary Board work diligently to complete their investigations and report to the full Disciplinary Board within 180 days but in reality the investigations sometimes last longer. The Disciplinary Board members who conduct investigations are licensed attorneys and volunteer their time away from their law practice to conduct Disciplinary Board work. At the conclusion of each investigation, the Disciplinary Board member makes a report and recommendation to the full Disciplinary Board.

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 discussed 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 Part III, we discussed what a lawyer should and should not do after reporting the grievance to his malpractice insurance carrier. In this fourth and final installment, we discuss what the Disciplinary Board could determine based on the Disciplinary Board member’s review of the grievance materials, the respondent lawyer’s verified response to the Notice of Investigation, and the Disciplinary Board Member’s own investigation.

What Might The Disciplinary Board Do With Me?

To briefly recap, someone (remember-it doesn’t have to be a client) initiates this process by filing a grievance. The accused lawyer files his initial response but the grievance is not dismissed, resulting in a Notice of Investigation (“NOI”) being sent by the Office of General Counsel to the Disciplinary Board. The accused lawyer then files his verified response to the NOI. Based on the verified response of the respondent attorney and the investigation and recommendation by the Disciplinary Board member, the Disciplinary Board has several options:

1. Dismiss the Notice of Investigation – no action taken.
2. Refer it to the Arbitration Committee – often the case with fee disputes.
3. Refer it to the Committee on Attorney Impairment – if the attorney requires medical or psychological treatment.
4. Issue a Letter of Instruction – helps the attorney avoid future situations. This is not considered discipline
5. Issue a Formal Letter of Admonition – a letter outlining the Rules violated and the findings of the Board. This is the lowest level of confidential discipline and remains on your record for consideration in future disciplinary actions.
6. Issue a Disciplinary Board Reprimand – in person admonition before the members of the Disciplinary Board at a monthly meeting.
7. Issue a Notice of Discipline – failure to formally reject this Notice may result in the loss of right to an evidentiary hearing. Following rejection of the Notice of Discipline by the respondent, the Disciplinary Board may consider new evidence and take appropriate action, or it may direct the Office of General Counsel to file a Formal Complaint and Petition for Appointment of a Special Master. If the respondent fails to reject the Notice, the respondent is in default and is subject to further public proceedings as may be determined by the Supreme Court.

Disciplinary Board Finds Probable Cause: What Comes Next?

For a small percentage of grievances, the Disciplinary Board finds probable cause and refers the case to the Office of General Counsel to file a public Formal Complaint with the Clerk of the State Disciplinary Board who eventually transmits the record to the Supreme Court. The Supreme Court appoints a Special Master to act as the trial judge to preside over the disciplinary litigation and eventually conduct an evidentiary hearing from which the Special Master will issue his Findings of Fact, Conclusions of Law and Recommendation for Discipline with the Supreme Court. During this stage, the attorney’s professional career and reputation are on public display, and the attorney can more than likely expect to receive some sort of public discipline.  First, the attorney is served with a Notice of Finding Probable Cause, a Petition for Special Master, and a copy of the Formal Complaint. Hopefully the attorney  has already retained counsel who will acknowledge service of these documents in order to avoid the embarrassment of service by the Sheriff at the attorney’s home or office.

Unless there is a negotiated agreement with the State Bar which results in the respondent lawyer’s filing of a Voluntary Petition for Discipline, which must be ultimately approved by the Supreme Court, the respondent attorney is now involved in full-blown disciplinary litigation. This includes the requirement to file an Answer to the Formal Complaint, written discovery, document productions, witness identification, depositions, motions practice, hearings and ultimately a disciplinary trial. The attorney’s office, data, clients, and peers are fair game for the Office of General Counsel prosecutors, which can disrupt the attorney’s practice and drain financial resources. What’s worse, the information is available to peers, other clients and the general public.

What are the potential sanctions? At this point, the attorney likely is going to get disciplined publicly. In very few cases, we have seen dismissals of the Formal Complaint. In those cases where the State Bar decided to dismiss the Formal Complaint, the Office of General Counsel must first obtain the consent of the Chair or Vice-Chair of the Disciplinary Board or obtain the consent of any three members of the Disciplinary Board. In most cases, where the disciplinary litigation proceeds for a decision by the Supreme Court, public disciplinary options include:

1. Review Board Reprimand
2. Public Reprimand before a trial judge
3. Suspension
4. Disbarment

During the Formal Complaint litigation, respondent attorneys still have a chance to negotiate a resolution, but it depends on the issue(s) and is greatly influenced by the involved member(s) of the State Bar and the makeup of the Supreme Court. The goal of the Office of General Counsel is to protect the public, so they will aggressively pursue each case. Generally, the most effective negotiation option is for the attorney to quickly get to the central issues and offer a realistic resolution based on the evidence, provide supporting disciplinary case precedent, and present the applicable mitigating and aggravating circumstances (framed in reference to the disciplinary guidelines promulgated by American Bar Association).

Conclusion

Normally, most Bar grievances have opportunities to be dismissed early in the process or later come to a negotiated resolution, well before the matter becomes public and the Georgia Supreme Court gets involved. If you ever receive a grievance, immediately seek experienced counsel, notify your malpractice insurance carrier, respond quickly and accurately, and work toward a fair resolution to the situation.

Receiving a malpractice claim or a Bar grievance are very scary events. However, careful review of the claim or grievance, calling upon knowledgeable defense counsel, and reporting the matter properly to your insurance carrier will ultimately lead to a more tolerable situation and hopefully a favorable outcome.