Responding to State Bar Grievances

Statistics show that attorneys should expect to receive at least one grievance letter from the State Bar if they practice long enough.

The first step if you receive one is to not panic. Step two is to respond to the grievance in a timely and forthcoming manner. Failure to do so is grounds for professional discipline (Rule 8.1 of the Rules of Professional Conduct).

            Following are some additional tips:

• Calendar all deadlines. When did you receive the initial Letter of Notice from the State Bar? You have 15 days from that date to submit your response. Calendar the date the response is due. If you cannot make that deadline and need more time, contact the State Bar counsel assigned to your case and request an extension. Do not under any circumstances let the deadline pass without action.

• Take it seriously. Most grievances will not result in discipline. Many are filed without merit. This does not mean, however, that you should treat any grievance as a mere annoyance or, worse yet, a joke not be taken seriously. Deal with the grievance as if it were the most important item on your agenda – which it very well might be. Handle it professionally.

• Strive for detachment. Respond to the grievance in a detached and unemotional manner. That is not easy. Lawyers are professionals who take pride in their work. Receiving a grievance is an unkind and unwanted blow. It is never wise, though, to counterpunch in an emotional and angry way. Instead, construct a concise, well-reasoned response that is grounded in fact.

• Follow your own advice. Every day you tell clients not to try and fix problems themselves. Follow that advice. You might be too deep in the forest to identify the trees. Consider seeking outside, objective help. Even if you do not retain counsel to represent you, consider discussing the case with a trusted colleague. Someone who is neutral and uninvolved might be better able to come up with defenses and rational arguments that are eluding you.

• The earlier, the better. Keep in mind that the best opportunity for persuasive advocacy is in the early stages of the grievance process. A carefully drafted and well-researched response could result in an early dismissal.

• Don’t blame the complainant. The State Bar is not interested in hearing how crazy, mean, vindictive and ungrateful the complainant – typically your former client – is. It is your conduct that is under review. And you won’t wriggle off the hook merely because you did not charge or receive a fee. It usually makes no difference whether you got paid for your services or not.

• Don’t agonize. Everyone makes mistakes. Rule 1.1 says an error made in good faith, absent aggravating circumstances, is not indicative of an ethical violation.

• Don’t become paranoid or paralyzed. Proceed deliberately and document your actions.

• Maintain perspective. Don’t allow a single grievance to cause you to doubt your competence or professionalism. Lawyers who take on tough case and represent lots of clients run a higher risk of receiving a grievance. Keep the full measure of your career in mind. You have helped hundreds of clients. You are a good lawyer.

• Do your homework. Prepare a chronology of what happened. Include important dates and names of potential witnesses. Gather supporting documentation.

• Do your legal research. Start with the Rules of Professional Conduct. Review the annotated cases. Pay particular attention to prior disciplinary cases. Study also the relevant ethics opinions. Other helpful sources: ABA/BNA Professional Liability Manual, the National Association of Bar Counsel ethics database, www.law.com and other websites.

• Look forward, not backward. You cannot undo what has already been done. Don’t make things worse by tampering with evidence or reconstructing documents. Deal with reality.

• Learn from this experience. Are there any procedures you can implement to lessen the likelihood of future problems? Talk with your staff. What lessons do they think can be learned from this situation?

• Tend your other cases. Don’t become so consumed by the grievance that you neglect other matters in the office.

• Tell the truth. Honesty is always the best policy.

• Ask for help if needed. Sometimes simply sharing the problem with someone else makes all the difference.