Attorney Grievances Part 2: 5 Avoidable Mistakes

Conflicts, Ethics, Firm Management, Legal Malpractice

In last month’s Article, we provided an overview of the grievance process. We discussed that most grievances (about 70% last year) were dismissed as “inquiries” at classification and not investigated. But when there are sufficient allegations of attorney misconduct that would violate the ethics rules, the Texas Chief Disciplinary Counsel (CDC) typically classifies the grievance as a “complaint” and issues a notice to the attorney. In this Article, we provide some practical tips on how to respond to an ethics complaint – highlighting some common and easily avoidable mistakes.

5 EASILY AVOIDABLE MISTAKES

Mistake #1: Failing to Respond

This seems like a no-brainer, and yet, attorneys often make the situation substantially worse by ignoring the complaint. It’s completely normal to feel defensive, angry, irritated, or perhaps even paralyzed by anxiety. But a grievance complaint–however frivolous the respondent attorney believes it to be or how busy he may be on other matters–will not miraculously disappear. And failing to respond to a grievance complaint is its own ethics violation under Rule 8.01(b) of the Texas Disciplinary Rules of Professional Conduct (TDRPC) and can subject the attorney to public discipline–even if the underlying complaint is frivolous or the attorney prevails on the merits of the underlying complaint.

There are practical considerations as well. Failing to respond may make a client’s allegations appear more plausible–particularly if the client alleged that the attorney failed to communicate with the client or neglected her case. Further, failing to fully rebut the allegations during this phase may lead to a finding of Just Cause. At that point, it will be significantly more difficult to have the complaint dismissed and the attorney may now have to deal with time consuming and costly litigation.

Mistake #2: Failing to File a Timely Response

Failing to file a timely response is another big–and easily avoidable–mistake. The response is due within 30 days of receipt of the grievance notice under Rule 2.10 of the Texas Rules of Disciplinary Procedure. Failing to provide a timely response is its own ethical violation, and is independent of the merits of the underlying complaint.

It’s recommended that you put the due date on your calendar and into your tickler system. If you’ll need more than 30 days to draft your response, request an extension from the State Bar attorney or investigator who signed the notice well before the due date. Extensions are typically limited to 30 days and are usually freely granted, provided the request was made promptly. There is a form Texas State Bar letter agreement for a time extension that must be signed and returned promptly to the CDC’s Office. Be sure to follow-up if you do not receive this form after you’ve made your request.

Mistake #3: Failing to Keep Your Emotions in Check

However upsetting this is, controlling one’s emotions is paramount. Avoid any temptation to fire off a defensive response–attacking the client and/or committee and maintain a professional, courteous tone at all times. It’s critical to avoid alienating disciplinary counsel at all costs. Failing to regulate your emotions can easily escalate the situation from bad to worse. Imagine facing a private reprimand for non-serious misconduct only to be suspended for your behavior during the grievance proceeding. Yes, that’s actually happened.

Mistake #4: Failing to Retain Counsel (or at least getting a second set of eyes)

The repercussions of an ethics complaint can be quite significant–consequences can range from private reprimand to disbarment. With this in mind, the best practice is to be represented by counsel so consider hiring an ethics defense counsel for full representation or on a limited-scope basis. At minimum, have an attorney review your draft response or work with you in preparing a response reviewing for tone, accuracy and completeness. This should be someone who knows and understands the investigation and disciplinary process well.

Mistake #5: Committing the Following Errors When Submitting a Response

If you decline to obtain representation, be sure to avoid these common mistakes when preparing your response:

Providing an incomplete response that ignores facts and/or allegations. Instead, respond citing the ethics rules implicated in the allegations and explain how you complied with your obligations. Make the effort to provide a complete response so disciplinary counsel does not have to do additional research to find in your favor.

Drafting and submitting the response without reviewing the case file and any other relevant documents. Relying on your memory runs the risk that your response will include statements that are inconsistent with the relevant documents–causing you to lose credibility with disciplinary counsel. Further, a response that includes false or inaccurate statements can be construed as an ethics violation under violation of TDRPC Rule 8.04(a)(3)(conduct involving dishonesty, fraud, deceit or misrepresentation) or TDRPC Rule 8.04(a)(4) (conduct constituting obstruction of justice).

Revealing irrelevant and embarrassing information about the client. Keep in mind that under TDRPC 1.05(c)(5), disclosure of confidential client information is limited to the extent necessary to establish a claim or defense in a controversy with the client or to respond to allegations by the client concerning the lawyer’s representation.

Responding with a data dump, which can be perceived as evasive and/or irritate the investigator who is now having to navigate through loads of unnecessary information and now finds herself spending time organizing the documents.

ADDITIONAL CONSIDERATIONS

In addition to avoiding the mistakes cited above, we have a few additional recommendations.

Check Your Malpractice Policy

Be sure to take the time to review your malpractice policy to see whether your policy covers defense of grievances. For instance, TLIE’s Regular Policy provides grievance defense coverage, whereas the TLIE Basic Policy does not. Additionally, it’s worth checking whether you need to report the grievance to your insurance carrier and if so, the applicable deadline.

Assess Your Practice

Consider whether you may be facing the same type of complaint from your other clients, and address them. Review your systems to see how to prevent this from happening again.

CONCLUSION

Those who fail to take grievance complaints seriously do so at this peril. While you cannot control whether a grievance is filed, you can avoid these common missteps when responding to a grievance complaint and reduce exposure to the most severe discipline. If you’re a TLIE insured and have received a grievance complaint or worry one may be on the horizon, please contact us.

By Lauren Bianchini