Attorney Grievances Part 1: An Overview of the Grievance Process
Conflicts, Ethics, Firm Management, Legal MalpracticeDuring the 2021-2022 bar year, 7,175 ethics complaints (or grievances) were filed against Texas attorneys. A grievance can expose attorneys to discipline ranging from reprimand to suspension to disbarment, not to mention reputational harm. Given the significant impact an ethics complaint can have on an attorney, it’s necessary to understand the grievance process. This Article is the first part of a two part series on grievances and aims to provide a high level procedural overview of the attorney disciplinary process so attorneys know what to expect.
HOW IT BEGINS
Typically, the investigation begins when someone files a complaint with the Chief Disciplinary Counsel’s (CDC) Office using the standard grievance form. Someone being the operative term–anyone who has knowledge regarding attorney misconduct has the right to file a grievance against a Texas attorney. There is no “standing” or “privity” requirement.
Less frequently, the Texas Bar may institute its own investigation without a complaint ever being filed. This is usually limited to situations where there’s been a criminal conviction or publicity over a lawyer’s conduct.
CLASSIFICATION
Once a grievance is filed, the Chief Disciplinary Counsel (“CDC”) has 30 days to “classify” the grievance, meaning it must determine whether the grievance, if taken as true, would constitute an ethical violation.
If the grievance does allege professional misconduct or a disability, it will be upgraded to Complaint status. At the CDC’s discretion, grievances alleging minor misconduct may be referred to the Client Attorney Assistance Program, which will seek to resolve the issue between client and attorney outside of the formal grievance process.
If, on the other hand, the CDC concludes that no ethical violation is alleged, the grievance is classified as an Inquiry rather than a Complaint, at which time both respondent lawyer and complainant are notified that the matter has been dismissed. The complainant then has 30 days to appeal to the Board of Disciplinary Appeals (BODA). If BODA affirms the classification as an Inquiry, the complainant has a right to a one-time amendment to add information that might convert the Inquiry into a Complaint.
Approximately 70% of grievances in Texas are dismissed at the classification stage. This held true for the 2021-2022 bar year–of the 7,175 grievances were filed 4,997 were dismissed as Inquiries and 1,928 were classified as Complaints. Grievances are commonly dismissed at this stage for the following reasons:
- The grievance does not specify a violation of an ethics rule.
- The grievance does not involve a lawyer’s conduct in the lawyer’s professional capacity.
- The grievance is duplicative or identical to a previous filing.
- The grievance concerns a lawyer who has been disbarred, has resigned, or is deceased.
- The grievance is barred by the 4-year statute of limitations
- The grievance concerns a person who is not licensed as an attorney (handled by the Unauthorized Practice of Law Committee).
- The grievance is filed against a sitting judge (handled by the State Commission on Judicial Conduct).
INVESTIGATION
If a grievance is upgraded to Complaint status, the respondent attorney will be notified, provided with a copy of the grievance, and given 30 days to file a written response to the allegations. Extensions for the filing of a response are freely granted, but are typically limited to 30 days.
The CDC has 60 days from the date the attorney’s response is due to determine whether there is sufficient evidentiary support for the allegations to warrant a finding of “Just Cause.” The 60-day deadline may be extended if the CDC issues Investigatory Subpoenas and/or sets the case for an Investigatory Hearing.
The investigation is a critical stage in the grievance process–the respondent attorney should make every effort to fully refute the allegations and avoid a Just Cause finding. If a case enters formal litigation, it will be significantly more difficult to get a dismissal and can get quite expensive.
Investigatory Hearings and Investigatory Subpoenas
Both Investigatory Hearings and Investigatory Subpoenas were added to the investigation stage as part of the 2018 amendments to the Texas Rules of Disciplinary Procedure. With these changes, the CDC may issue subpoenas for documents, electronic information or tangible items and/or compel the attendance of witnesses (including the respondent attorney) at an Investigatory Hearings.
Investigatory Hearings are presided over by a panel of local grievance committee members. The complainant, respondent attorney, and other witnesses may appear and provide testimony or answer the panel’s questions. An Investigatory Hearing may result in a negotiated sanction, a finding of Just Cause, or a dismissal of the Complaint. In the 2021-2022 bar year, 358 cases were resolved after an Investigatory Hearing, with 238 cases ending with an agreed sanction and 120 cases dismissed by the Investigatory Hearing panel.
FORMAL LITIGATION
If the CDC finds that there is Just Cause to believe professional misconduct occurred, the case will proceed into litigation, at which point the respondent attorney has 20 days to elect whether to have the case heard before an evidentiary panel of the grievance committee or by a district court, with or without a jury. A failure to make the election automatically results in the matter proceeding before the grievance committee.
The vast majority of grievance cases proceed before the grievance committee. This may be due in part to an important consideration when making an election–privacy. The district court is a public trial. Trial proceedings before a grievance committee, on the other hand, are confidential unless and until a public sanction is issued (at which point certain information becomes public). In addition, proceedings before a grievance committee can result in a private reprimand, an option that is not available in district court. However, if the respondent attorney has concerns about the grievance-committee forum, he may elect to have his case heard before a single judge or a local jury in the district court. Discovery in the district court is conducted as in other civil cases barring some exceptions. Possible sanctions available in either forum include a public reprimand, a probated suspension, an active suspension, a combination of probated and active suspension, or disbarment.
Grievance Referral Program
Some cases that enter formal litigation are sent to the Grievance Referral Program, a program designed to support lawyers with impairment or performance issues where minor misconduct is the basis of the complaint. The respondent attorney agrees to complete a remedial program in exchange for a dismissal of the underlying complaint. If the lawyer does not complete the terms of the agreement in a timely manner, the complaint moves forward through the disciplinary process above.
CONCLUSION
Given the potential devastating consequences of having a grievance filed against you–both professionally and personally–it’s important to be familiar with the grievance procedures and know what to expect. In our next Article, we’ll discuss some tips when faced with a complaint.
