An attorney I am informally mentoring just received her first letter from the Office of Disciplinary Counsel (OCD). As everyone in family law knows, grievances are an expected but unwelcome part of the practice. This colleague is looking for advice on her response. I figure this advice would be useful for other attorneys as well, so here it is….
1. Don’t ignore it
It’s human nature to avoid the unpleasant and responding to a grievance is unpleasant. But ignoring the ODC can lead to further trouble. Not convinced? Search “Treacy” on any collection of Supreme Court disciplinary opinions. In the Matter of Patrick E. Treacy, 77 S.C. 514, 290 S.E.2d 240 (1982) may be the most cited disciplinary opinion in all of South Carolina law. It stands for the proposition that ignoring a letter from ODC is itself a violation of the Rules of Professional Conduct.
Under the current Rules for Lawyer Disciplinary Enforcement (South Carolina Appellate Court Rule 413) a lawyer has fifteen days from receipt of a “notice of investigation” from the ODC to file a written response. Rule 19(b), Rules for Lawyer Disciplinary Enforcement. Failure to respond timely to the notice of investigation results in a “Treacy letter” being sent to the attorney. On request, the ODC will grant a reasonable extension to respond. However, ignoring that letter from the ODC leads to more trouble.
2. Read the letter from ODC and read the applicable rule of professional conduct
When I first started practicing–and had to carry my laptop to court on a forklift–the ODC would simply send you the letter from the complainant and ask you to respond. These complaints tended to be long-winded and often it was hard to know what misconduct one was accused of. The temptation was to write an even longer response that addressed every allegation, which often merely provided more ammunition for the complainant.
The new procedure is for the ODC to include in its cover letter the exact rule that the attorney is alleged to have violated. Read the letter and read the rule. Your response only needs to address the claim that you violated that particular rule.
3. Don’t spew
In film noir, the police interrogate the bad guy by shining a bright light at his face, whereupon the criminal is so intimidated he confesses. There’s something about being called dishonest or incompetent that causes most humans to over-reveal. Lawyers, despite our training, are not immune from this. Avoid the temptation to spew or get defensive. Merely respond to the allegations in the complaint and discuss your conduct in light of the rule of professional conduct at issue.
4. Don’t lie
This should be obvious. It’s the easiest way to turn a bad situation into a really bad situation.
5. Support your response with records from your file
If you have documents that support your response, include them as exhibits. This is the reason no client ever walks away with my file without my first making a copy. The first grievance I received came the day after the client showed up demanding her file. I told her she could have it after I made a copy. My response contained over 30 exhibits from the file in support–exhibits I would not have had access to if my client had the only copy of my file. That grievance was dismissed after the ODC reviewed my letter.
6. Put your response away for 24 hours
Your initial response is unlikely to be calm. After you prepare it put it away for 24 hours (the ODC calls this the “24 hour” rule). Then go back and review it. Make sure the response doesn’t show anger or “rundown” the complainant. Revise as necessary and proceed to the next step.
7. Get a second (or third) set of eyes
The ODC is bound by confidentiality rules in dealing with a grievance; the attorney being grieved is not. Get an attorney you trust to review your response, both to make sure the tone is appropriate and to suggest improvements. And an additional proofreading can only help.
8. Don’t panic
Being accused of professional malfeasance is never pleasant. However the majority get dismissed without any finding of misconduct. For the 2010-11 reporting year (the most recent one for which data is publicly available), 1349 complaints were resolved. Of these 994 were dismissed without any finding, 732 of those without an investigative panel even being convened.
Of the 355 that were not dismissed, 208 resolved with an admonition or letter of caution, which means the attorney was found to have engaged in minor misconduct but the finding of misconduct did not become a public record. Only 128, less than 10%, were resolved with public discipline: Public Reprimand, 30; Suspension, 36; Disbarment, 62.
Lots of grievances get filed but most go away and even fewer result in public discipline. Following these rules may be the best hope of getting the grievance dismissed without further trouble.
Excellent advice. I would add not to start your response until you calm down from the initial anger we all feel over these things.
Greg,
Great post and sound advice I hear over and over again during CLE’s. I would add one point to your list: be involved in the Bar, at whatever level and capacity works for you. Over and over again, I see that serious attorney misconduct (reprimand up to disbarment) opinions from the bar indicate that a lawyer’s misconduct is “evidence” of their lack of interest in the practice of law, their lack of committment to the profession, or that they put another priority first, like enriching themselves at the client’s expense. The only two “In Re Anonymous” opinions I recall seeing recently both protected the name of the attorney committing misconduct, at least partially on the basis that the attorney demonstrated a committment to the profession and service to the bar despite their (hopefully one time ) bad acts. It’s worth being considered.
Another benefit to Bar involvement is that you have someone to reach out to who has probably been in a similar ODC situation. I think this is especially important for younger attorneys.
Long before you receive the grievance, keep good time records so that you can prove what you did, when you did it, how much time you spent, and who was present. Good billing records are important for lawyers who want to operate profitably but they are absolutely critical for the lawyer faced with a grievance.
I once represented a lawyer whose conduct would have been commended if only he had the records to support what he had done and if he had written a letter of nonrepresentation. Becuase he had no time records, he went though a panel hearing with the primary issue whether he had been the complainant’s lawyer. While eventually fully exonerated, his case would have been much simpler if he had kept time records. Write your time slips as if you are writing for the South Carolina Commission on Lawyer Conduct.