ATTORNEY OR LAWYER COMPLAINTS AND GRIEVANCES

A Practical Explanation of the Grievance Process

INTRODUCTION

The purpose of this section of the website is to briefly explain the Grievance process including complaints, hearings, and the way that an actual grievance committee functions. My perspective will be based on my experience as both a subject of a grievance and as a participant for six years on a district grievance committee. The intent of this article is to provide the Texas Practitioner with an understanding of both the process and the requirements of the grievance system. Please note that there are two sets of Rules which must be reviewed to fully understand the system. The Texas Disciplinary Rules of Professional Conduct (TDRPC) govern the conduct of the lawyers and the Texas Rules of Disciplinary Procedure (TRDP) outline the procedures utilized to process grievances.

I. THE GRIEVANCE COMPLAINT

Individuals (usually clients) initiate the grievance process by filing a grievance with the State Bar of Texas (“SBOT”). The SBOT forwards the grievance to the office of Chief Disciplinary Counsel, where it is assigned to an investigator. The investigator classifies the grievance as an inquiry or as a complaint. The investigator is required to read the statements contained in the grievance as if they were true. If the statement contained in the grievance states a violation of a Texas Disciplinary Rule of Professional Conduct (“TDRPC”), then it is classified as a complaint. Otherwise it is dismissed (TRDP 2.09).The investigator provides the respondent with a copy of the complaint. The respondent is required to respond within thirty days in writing. It is important to note that an attorney can appeal the classification of the grievance as a complaint and in fact receives a form with the complaint that simply must be filled out and forwarded back to The SBOT Office of Disciplinary Appeals. Appealing the classification of the grievance does not halt the proceeding (TRDP 2.09). The SBOT is required to hold a hearing on any and all grievances classified as complaints. It is an additional violation of the TDRPC to fail to respond to a complaint, although SBOT investigators have discretion to grant extensions (TDRPC 8.04).

II. THE INVESTIGATORY PANEL

An investigatory panel of the grievance committee for the county where the alleged professional misconduct occurred is assigned to conduct the proceeding (TRDP 2.10). The hearing is to be conducted within thirty days after receipt of respondents response to the complaint (TRDP 2.11). The panel is composed of attorney members and public members. The basic ratio is two attorneys for every public member and as few as three members of a committee can hold a hearing if the ratio of two attorneys per one public member is maintained (TRDP 2.07). Motions can be made to disqualify members of the panel who would be disqualified if a District Judge under similar circumstances would also be disqualified (TRDP 2.06).The panel conducts an investigation to determine whether “just cause” exists to believe professional misconduct occurred. Just cause is defined as “Such cause as is found to exist upon a reasonable inquiry that would induce a reasonably intelligent and prudent person to believe that an attorney either has committed an act or acts of professional misconduct requiring that a Sanction be imposed, or suffers from a Disability that requires either suspension as an attorney licensed to practice law in the State of Texas or probation (TRDP 2.11).”The investigation is conducted similar to a grand jury investigation. Witnesses may be compelled by subpoena. The rules of evidence do not apply. There is no cross examination. Failure of either the respondent or complainant to appear does not halt the proceedings. A quorum must be present and a majority (if a quorum is present) is sufficient to conduct business of the panel (TRDP 2.07). If a unanimous finding of no just cause is voted then the grievance is dismissed. If a less than unanimous finding of no just causes occurs the complainant may submit his or her complaint to a second investigatory panel. If an investigatory panel determines just cause then it may impose any sanction authorized by the TRDP except disbarment. Additionally the panel may also impose a referral for rehabilitation (TRDP 2.12). The consent of the respondent is required for any disciplinary action imposed by the committee. The proceeding and findings are confidential unless the respondent accepts a sanction of Public Reprimand. If the investigatory panel and respondent are unable to negotiate a sanction or referral to rehabilitation the matter proceeds pursuant to the Texas Rules of Disciplinary Procedure.

III. POST INVESTIGATORY PANEL PROCEEDINGS

If the complaint is not dismissed, and if the attorney and the panel do not agree on the resolution of the complaint, then the matter is automatically assigned to an evidentiary panel of the grievance committee (TRDP 2.13). The Respondent can elect district court, rather than the evidentiary panel, by serving Chief Disciplinary Counsel with a written election notice within fifteen days after a receipt of notice that an agreement regarding the matter could not be reached. Respondents' notice is required to be received by Certified Mail. If Respondent timely elects district court than the SBOT will file a lawsuit in district court (TRDP 2.14).The district court proceeding will be a trial de novo with punishment determined by the district Judge (TRDP 3.09). The evidentiary hearing is held before members of the grievance committee that did not hear the case at the prior level (TRDP 2.16).There are significant differences between trial de novo in district court and the evidentiary hearing. In district court the pleadings do not have to follow the findings of the investigatory panel. The pleading are filed with the Supreme Court of Texas which assigns the case to an active district court Judge outside of the Respondents' Administrative Judicial Region. Discovery follows the Texas Rules of Civil Procedure. The SBOT or Respondent can request a jury, which can only determine issues related to misconduct. The Judge always determines the sanctions and the appellate route is through the Court of Appeals within the normal time deadlines (TRDP 3.03, 3.04, 3.05, 3.06, 3.09).Evidentiary hearings must follow the basis of the findings of the panel. The rules of civil procedure and/or evidence do not apply in the same manner as they would in district court. The Chairman of the panel is required to admit all evidence necessary for a fair and complete hearing generally in accord with Texas Rules of Civil Evidence (TRDP 2.16). The Chairman has discretion and no ruling upon evidence shall be reversed solely because it fails to strictly comply with the Texas Rules of Civil Evidence. Both proceedings are public and there are limitations to certain sanctions. For example, a private reprimand is not available once the Respondent chooses to utilize the evidentiary panel or district court (TRDP 2.17).

IV. PRACTICAL OBSERVATIONS AND SUGGESTIONS FOR LAWYERS FACING THE GRIEVANCE PROCESS

I apologize for the dry tone of the first portion of this article, but the grievance process is an extremely technical area of the law that many lawyers will never have to experience. The basic fact is that 90% of grievances are initiated against criminal law, family law, and personal injury lawyers. Common sense will tell you that Insurance Companies rarely file grievances against their defense counsel. Large Corporations rarely file grievances against their corporate lawyers. I think they just fire them.The involvement of public members and the procedure for classifying grievances as complaints arises from legislation adopted in response to public perception that the lawyer grievance system was operated as a good old boy network. The public perception of lawyers is not improving therefore it is extremely unlikely that any relaxation of the requirements of the grievance procedure will occur. Please understand that when you fail to return phone calls; when you fail to keep clients reasonably informed with regard to their proceedings; when you fail to keep and provide adequate records regarding disbursement of fees; any such complaint, from any source, will result in the potential for a grievance hearing on whether professional misconduct occurred.

V. AVOIDING GRIEVANCES

I have seen a number of lists about the ten most common attorney errors, which result in grievances. It is absolutely ludicrous, but every single list that I have ever seen (whether composed by an attorney protesting the grievance process or an attorney praising the grievance process) always includes attorney failure to respond to the grievance committee. It is almost unbelievable but in Texas many lawyers face grievance committees for the sole offense of failure to properly respond to grievance committee complaints.Failure to respond is a violation of the TDRPC (TDRPC 8.04). Every list also includes the rest of the litany of avoidable mistakes that result in grievances being filed.

Failure to return phone calls (TDRPC 1.03a, 1.03b);
Failure to properly explain settlements to clients (TDRPC 1.04, 1.08f);
Failure to clarify or even have written fee agreements (TDRPC 1.04);
Failure to give clients copies of files and papers (TDRPC 1.15); and
Trust account violations (TDRPC 1.14).

I have stated this over and over again in the times that I have discussed the grievance process with other lawyers. You know which of your clients are most likely to be a problem. You knew it the day you took their case and you have been unhappy about it every since. In addition to all of the important things that you must do, (including returning phone calls, maintaining a trust account, utilizing written fee agreements, sending copies of important letters and documentation to clients), make sure that you identify those client most likely to file grievances and make sure that their files are maintained properly at your office.

VI. RESPONDING TO GRIEVANCES

If you are unfortunate enough to receive a grievance, relax because you are not alone. Make sure you read it and treat as a Pleading and calendar your date for filing a response. Make absolutely sure that you appeal the classification of the complaint to the SBOT Board of Disciplinary Appeals (TRDP 7.01-7.12). The form to appeal classification of the grievance as a complaint arrives with your copy of the complaint. Frequently investigators for the State Bar are overworked and miss technical distinctions. For example fee disputes are regularly misclassified as complaints. Sometimes there is no attorney/client relationship between the Complainant and the attorney.

Appeal every classification of a complaint that you ever receive. Respond to every classification that you ever receive. Prepare evidence to send with your response such as affidavits from staff members or other individuals. If there is evidence from court files or judgments find it and include it with your response. Contact your State Bar Investigator immediately after you file your response to make sure that it has been received. Offer to provide additional information. Make sure that you attend the hearing and behave like you would before a Judge that you respect.Remember the Grievance Committee is composed of lawyer and pubic members. They are volunteers. I recommend deciding whether to retain counsel on a grievance by grievance basis. There are a number of good lawyers who have worked for the SBOT or on grievance panels with expertise in defending grievances. Obviously in a worst case scenario where a panel finds just cause to believe professional misconduct has occurred always consult and retain an attorney before any time deadline expires.

VII.CONCLUSION

I have completed six years as a member of the Grievance Committee and I am now a member of the Professionalism Enhancement Program. This is a new mechanism that the State Bar has instituted. The PEP program is designed to give Grievance Committees another tool to utilize for lawyers who face grievances as a result of lack of knowledge, disability and/or inexperience. The PEP committee can be utilized to refer lawyers to a mentoring program or other type of training program to correct problems that result in grievances. It can be used in conjunction with or as a substitute for a sanction.

The real solution to understanding the grievance process is by participating in it. I encourage each and everyone of you to contact your State Bar Representative and let him or her know that you are interested in serving on a Grievance Committee or a PEP Committee. I personally have found it to be a rewarding and enlightening experience. My interaction with the public members on the committee provided valuable information with regard to the way that lawyers are perceived even by those members of the public who participate in the political and legal process.I have criticisms of the grievance system. I think it is too easy for grievances to be filed and I frankly think the subject matter of many grievances is picayune. However it is obviously better to have a grievance system that is too tight then one that is too loose. I do not think that there are going to be any substantial changes in the system in the future. Therefore I again recommend that all lawyers (particularly those doing criminal defense, family law, or personal injury law), read the rules; keep your clients notified of what is going on in their cases; and volunteer to participate in the system.

There are a number of lawyers who specialize in handling grievances. There are specific phone numbers available that relate to the grievance process. I include the following list of toll-free numbers:

Main office: 1-800-204-2222
Advertising Review: 1-800-566-4616
Attorney Occupation Tax Information: 1-800-583-8070
Barratry Hotline: 1-800-633-6630
Grievance Information: 1-800-932-1900
Lawyer Referral Service: 1-800-252-9690
Lawyers Assistance Program: 1-800-343-8527
Lawyers Ethics Hotline: 1-800-532-3947
Texas Board of Legal Specialization: 1-800-204-2222
Texas Equal Access to Justice: 1-800-252-3401
Texas Judge's Assistance Program: 1-800-219-6474

ATTORNEY OR LAWYER COMPLAINTS AND GRIEVANCES A Practical Explanation of the Grievance Process