Mommy, how do you make a . . . Bar Grievance? 

I have four children, and they ask the most frustrating questions sometimes.  A recent selection provides a glimpse into the depraved curiosity of their little minds:

“Pa, can you kill someone for stealing a scooter?” 

“Mommy, why aren’t you as smart as Aunt Tracy?”

“How old were you when you got tired, Pa?” 

“Pa, can you eat a giraffe?” 

And, of course: “Mommy, where do babies come from?” 

As the father of four kids, I obviously know the answer to that last one, but I candidly don’t know how to answer it when a four-year-old asks it.  

Another surprisingly difficult question – but not one my kids have ever asked me – is where a grievance comes from.  Why?  Because historically, and for the time being, virtually anything can trigger the opening of a grievance at the North Carolina State Bar: a news article, random audit, court order, civil lawsuit, or criminal charge. 

Of course, the most common way a grievance is made is the filing of a complaint with the Bar.  But even then, there is a lot of room for variety.  While a complaint typically comes from a client or former client, it can really come from anyone: an opposing party, a client’s spouse or relative, an opposing counsel, a judge, or even just someone with an unhealthy obsession with you. There is, right now, no “standing” requirement: anyone can submit a grievance complaint against you, even if they have never been harmed by you, have never met you, and weren’t involved in the matter about which they are complaining.

As a result, if you receive notification from the State Bar that they have opened a grievance against you, and you base your response on the notion that the complainant of your grievance lacks standing to submit the complaint, you will get nowhere. 

However, this might change soon. 

The North Carolina General Assembly recently created a State Bar Review Committee to, among other things, “review and examine the grievance review process of North Carolina State Bar,” including the “sufficiency and thoroughness of the screening, decision making, and review of grievances and complaints.”

During the Committee’s deliberations, they were kind enough to ask me to make a presentation to them on various changes I believed should be made to the grievance and DHC processes.  As a former Bar prosecutor who now defends lawyers before the State Bar, I was excited and honored to share my perspective, and one of the issues I addressed was the notion of a standing requirement in grievance complaints.

I shared how damaging it can be when vexatious complainants who don’t care about protecting the public or seeking redress file grievances against lawyers for no other purpose than to embarrass or harass the lawyer – or to gain an advantage in a tangential matter, like a divorce or custody proceeding, to use a common example.

To combat this, I proposed, in conjunction with the Bar, two possible solutions:

First, codify a requirement that the Grievance Committee consider the motive of complainants who submit grievances when determining what discipline – if any – is appropriate in a given file.  While many members of the Grievance Committee and the Bar prosecutors already do this, there is no requirement to do so.  Adding this requirement to 27 N.C.A.C. 1B Rule § .0113(k) with the following language would, in my opinion, be a step in the right direction: “The Grievance Committee shall consider the motive of a complainant in determining the disposition of a grievance.”

Second, I suggested a rule limiting who could file a grievance against a lawyer with the North Carolina State Bar in the first place.  Here is the proposed language we came up with:

“Grievances against lawyers may be filed by:

1. A lawyer or judge pursuant to their professional obligation to report misconduct;
2. A judge, lawyer, court staff member, or juror in the legal matter that is the subject of the grievance;
3. A family member of a ward in a guardianship proceeding or family member of a decedent in a probate matter when the guardianship or probate matter is the subject of the grievance;
4. A trustee of a trust or an executor of an estate if the trust or estate is the subject of the grievance relates to the trust or estate;
5. A trustee in a bankruptcy that is the subject of the grievance;
6. Any other person who has a cognizable individual interest in or connection to the legal matter or facts alleged in the grievance;
7. The State Bar shall retain the ability to open and investigate grievances on its own initiative upon receipt of information indicating that a lawyer may have violated the Rules.” 

This would, in effect, create a requirement of standing in order to file a grievance at the State Bar, a huge shift from the current framework.  If these rules are implemented, it will go a long way to cutting down on pointless complaints from folks who are just trying to ruin a lawyer’s day – or life.  Hopefully, they will be implemented, and then we can all know with greater certainty the finite places a grievance can come from. 

Then, at least that one question will be easier to answer. 

In addition to being professionally damaging, the grievance process can be frustrating, stressful, time-consuming, emotional, and confusing. But it doesn’t have to be. If you want help navigating an issue with the State Bar, let me know.  As a State Bar prosecutor for nearly a decade and now a defense attorney, I have handled hundreds of files before the Grievance Committee and the DHC – on both sides.  Just give me a call; we will get through it together.