I Received a Letter From the State Bar of Texas. What Do I Do Now?”
Receiving a letter from the State Bar of Texas notifying you that a grievance has been filed against you can be upsetting and daunting. Consider the following as soon as you receive a letter from the State Bar, because you must respond within 30 days.
1. Read the letter, don’t ignore it.
Avoiding or ignoring a letter from the State Bar is a mistake. If you receive a letter from the State Bar which informs you that a grievance, classified as a “complaint”, has been filed against you, you are required to take action. A complaint differs from an inquiry, which does not require a response. Within 30 days of when you receive the letter, you are required to submit a response to the State Bar and send a copy of that response to the complaining party under Rule 2.10 of the Texas Rules of Disciplinary Procedure. Failure to respond is a violation of Rule 8.04(a)(8) of the Texas Disciplinary Rules of Professional Conduct.
2. Take the matter seriously.
The fact that the State Bar determined the grievance against you could proceed as a complaint instead of an inquiry is not an actual adjudication by the State Bar that you have done something wrong. Rather, it indicates that the complaining party made allegations in their grievance submission that, if true, could constitute a possible rule violation. The bar counsel will determine if summary disposition or further proceedings are appropriate based on your response and additional investigation.
All grievances should be taken seriously. A disciplinary sanction can have serious financial and professional consequences, including restitution, reprimand, suspension and disbarment. Except for ignoring the letter, the next worse thing you can do is be cavalier. Even if your conduct was above reproach, and the complaining party is a dastardly dog, you must take the allegations seriously and treat your obligation to respond seriously.
3. Review your professional liability policy to see if you have grievance defense coverage.
If you have a professional liability insurance policy, you may also have a grievance defense allowance as part of that policy. This is usually a set sum of money available to you under the terms of your policy specifically for grievance defense. You should contact your insurance carrier as soon as you get the letter notifying you of the complaint. The carrier can then advise you about this coverage, as well as advise you about the retention of counsel.
4. Hire counsel.
Whether you do or do not have grievance defense coverage that will help cover the cost of counsel, you need to hire an attorney to represent you and you need to hire someone who has experience in the area of grievance defense. Responding to a grievance is an art. The response must specifically address each allegation of misconduct in a clear and concise manner, and it should be supported by exhibits. Attorneys who have experience in this area know what the State Bar is looking for in terms of a response and they know how to spot the issues – particularly the issues that the State Bar is concerned about. An experienced grievance defense attorney knows how to present a response that will fully address each allegation of misconduct.
The easiest and least expensive way to dispose of a grievance is in this initial response phase. With retained, experienced counsel, your chances improve that the matter will be dismissed. Many times, however, when a person tries to handle this response on their own, without counsel, it does not end well. Rather than getting dismissed, the State Bar instead determines there is just cause to proceed on the disciplinary complaint. When this happens, the process becomes more involved, expensive, and time consuming. Your resources should therefore be devoted to preparing the best response possible. And that means hiring an experienced attorney to represent you.
5. Do not hire cheap counsel.
This is your license – not something you bought off the clearance rack at a discount retailer. While you should hire counsel who will represent you efficiently and be sensitive to any financial constraints, that does not mean you should hire someone because they promise to prepare the grievance for a flat fee or a discounted rate. Representing yourself or hiring your buddy who has never handled a grievance to represent you are both very bad ideas.
There are no cookie cutter grievances and there certainly are no cookie cutter responses. Each grievance is unique in its facts and allegations. The cost of a response depends on a variety of factors, including but not limited to, the length of the underlying representation or legal matter; the number of documents that your attorney will need to review; the complexity of the issues; the seriousness of the allegations; the number of allegations; whether witnesses will need contacted and interviewed; the amount of research required; whether an audit of client files or office procedures is required; and whether the complaining party files a rebuttal to your response that requires additional supplementation.
6. Collect your documents.
One of the first things you should do is to find any and all documents that make up the paper and electronic file for the matter at issue. This includes your fee agreement, billing statements, emails, time records, internal firm communications, and communications with clients and others. Depending on the allegations, you may also want to gather firm calendars or diaries, phone messages, phone records, pleadings, notes, and any other relevant documents that will explain your conduct. If there are allegations regarding your trust account, gather all ledgers, accountings, bills, invoices, copies of checks, deposits, and bank records. This will help ensure that you have all relevant and important documents to support your response.
7. Summarize what happened in writing.
After you have gathered your documents, take some time to sit down, review the allegations, and draft a summary of your position while the facts are fresh in your mind. This is not meant to be your final response, but will be valuable to the person you hire to represent you in the grievance for the preparation of the response. There are often factual nuances based on your involvement in the matter that your counsel will not be able to glean from just reviewing documents. A summary with your insight will help frame the themes used in your response, as well as help your counsel fully understand why actions were taken (or not taken) so that they can be explained in the response.
8. Do not demonize the complaining party.
It is natural to want to paint the complaining party as evil or bad. However, it would be a mistake to do this or to rely on this as the only reason why the grievance should be dismissed. No matter how bad or wrong the complaining party is, the only relevant issue is whether you violated a Rule. In other words, your client may be a criminal. That does not excuse your failure to comply with a Rule. The focus of the response should be on showing the State Bar why you did not violate a Rule, rather than telling the Bar all the reasons why the complaining party is a bad person.
9. Cooperate with the State Bar.
In the response phase, your relationship with the State Bar is not adversarial. To proceed with a full hearing, the State Bar investigator must determine that just cause exists. Just cause under Rule 1.06 (u) of the Rules of Disciplinary Procedure means that facts exist “that would induce a reasonably intelligent and prudent person to believe” that the attorney should be sanctioned or suffers from a disability. One of the factors the State Bar considers under Rule 3.10 (j) of the Rules of Disciplinary Procedure is the conduct of the attorney throughout the process. A failure to cooperate can have negative consequences and can impact the kind of discipline the State Bar will ultimately recommend if the grievance is not dismissed. Rather than considering the State Bar as an adversary, help the State Bar see why there is no just cause to proceed.
10. Do not agree to an interview with the State Bar without Counsel.
While cooperation is important, that does not include agreeing to be interviewed by the State Bar investigator on your own without counsel. Think of it this way – you would never advise your client to meet with a detective or prosecutor for interrogation without you. You should not do it either. Anything you say and do can be used against you.
Responding appropriately to a grievance is a demanding process. Taking the time and effort to defend the license you worked hard to earn is something you owe yourself and the profession. Following these guidelines can make a difficult process less burdensome.
