grievances: understanding the process, tips for responding ... · grievances: understanding the...

8 2011 R. Scott Downing & R. Porter Corrigan, II All Rights Reserved

GRIEVANCES:

Understanding the Process, Tips for Responding, the Most Frequent Complaints and Tips on How to Avoid them Altogether

R. SCOTT DOWNING [email protected]

http://www.momnd.com

R. PORTER CORRIGAN, II [email protected]

http://www.momnd.com

McCurley, Orsinger, McCurley, Nelson & Downing, L.L.P.

Dallas Office:

5950 Sherry Lane, Suite 800 Dallas, Texas 75225

(214) 273-2400

and

San Antonio Office: 1717 Tower Life Building San Antonio, Texas 78205

(210) 225-5567

State Bar of Texas ADVANCED FAMILY LAW DRAFTING

December 8-9, 2011 Dallas

CHAPTER 6

R. SCOTT DOWNINGMcCurley, Orsinger, McCurley, Nelson & Downing, L.L.P.

5950 Sherry Lane, Suite 800

Dallas, Texas 75225

214-273-2400

[email protected]

Scott Downing is a partner in the Dallas law firm of McCurley, Orsinger, McCurley, Nelson &Downing, LLP. He is board certified in Family Law and 100% of his practice is devoted to familylaw matters.

Scott received his undergraduate degree from the University of Texas at Austin, and his law degreefrom the University of Houston Law Center in 1991. Scott is an active member of the State Bar ofTexas, serving on various councils and organizations within the Bar, such as the Family LawCouncil, Director of the Texas Academy of Family Law Specialists, a Fellow in the AmericanAcademy of Matrimonial Lawyers, and a speaker at many of the family law CLE seminars.

He has the honor of receiving the distinction of Super Lawyer from Texas Monthly magazine sincethe inception of the award, Best Lawyers in America, Texas Monthly Top 100 Lawyers in Texas, toname a few.

He has served as Chair of the District 1A Panel of the State Bar of Texas Commission for LawyerDiscipline for the last five years. He is going to speak to you today on that topic of grievances andshare some of his knowledge about how to avoid them.

Grievances: Understanding the Process, Tips for Responding, the Most Frequent Complaints and Tips on How to Avoid them Altogether Chapter 6

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TABLE OF CONTENTS

I. INTRODUCTION ................................................................................................................................................... 1

II. GRIEVANCE PROCEDURE ................................................................................................................................. 1 A. FILING THE GRIEVANCE FORM ............................................................................................................... 1 B. AClassification Stage@ - Inquiry vs. Complaint ................................................................................................. 1 C. Responding to the Complaint .......................................................................................................................... 2 D. Reacting to the Response ................................................................................................................................. 2 E. Trial of the Complaint: the Respondent=s Election .......................................................................................... 2 F. Basis for Punishment ....................................................................................................................................... 3 G. Types of Punishment ....................................................................................................................................... 3

III. ALTERNATIVES TO THE GRIEVANCE PROCEDURE ................................................................................... 4 A. Grievance Referral Program ............................................................................................................................ 4 B. Client-Attorney Assistance Program ................................................................................................................ 4

IV. COMMON GRIEVANCES ALLEGED AND WAYS TO AVOID THEM .......................................................... 4 A. Failure to Respond, Lack of Communication, and Neglect ............................................................................. 4 B. Safeguarding Property ..................................................................................................................................... 5 C. Attorney=s Fees ................................................................................................................................................ 5 D. Miscellaneous Tips to Avoid Grievances or Otherwise Protect Yourself in the Event of a Grievance ............ 5

V. CONCLUSION ....................................................................................................................................................... 5

APPENDIX A ................................................................................................................................................................. 7


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GRIEVANCES: UNDERSTANDING THE PROCESS, TIPS FOR RESPONDING, THE MOST FREQUENT COMPLAINTS AND TIPS ON HOW TO AVOID THEM ALTOGETHER I. INTRODUCTION

Lawyers in the state of Texas have an obligation to maintain a high standard of ethical conduct towards their clients. The State Bar of Texas investigates and prosecutes complaints of professional misconduct against lawyers licensed in this state to enforce this high standard. For purposes of professional discipline, the ethical rules that Texas attorneys are charged with following are called the Texas Disciplinary Rules of Professional Conduct, which can be found online at www.texasbar.com. These rules are intended to protect the public by providing a forum for investigating and addressing complaints about attorneys regarding professional misconduct. Procedurally, the rules which provide the mechanism through which grievances are processed, investigated and prosecuted are referred to as the Texas Rules of Disciplinary Procedure, and can be found at the same website listed above.

The Texas attorney discipline system is administered by the Office of Chief Disciplinary Counsel, which has been referred to as the ABar=s law office.@1 The body charged with overseeing the Office of Chief Disciplinary Counsel is called the Commission for Lawyer Discipline, and consists of six attorney members selected by the Bar=s president, and six public, non-attorney members who are appointed by the Supreme Court of Texas.

The attorney grievance system in Texas does not attempt to handle all disputes between lawyers and clients, but rather only the disputes that involve professional misconduct. Being dissatisfied with the results of trial because of the strategy employed by the attorney for example, does not necessarily mean that the attorney committed professional misconduct.

The purpose of this article is to shed some light on the grievance process generally, as well as to outline items that should be included in a response to a grievance that has been filed, and finally to touch on some of the most frequent complaints, and what you can do to avoid them. The author would like to acknowledge that a wealth of information used in constructing this paper was adapted from the State Bar of Texas

1 State Bar of Texas Commission for Lawyer Discipline, Annual Report, June 1, 2009 B May 31, 2010.

Commission for Lawyer Discipline Annual Report, June 1, 2009 B May 31, 2010. II. GRIEVANCE PROCEDURE2 A. Filing the Grievance Form

The grievance process begins when a Grievance Form is filed with one of the Chief Disciplinary Counsel regional offices in Texas.3 This form can be found in a variety of places, but most easily obtained through the www.texasbar.com website.

It is important to note that a client=s signature on the Grievance Form is sufficient to waive the attorney-client privilege that keeps communications between the client and the attorney confidential. Information about the pending grievance itself is kept confidential and is not subject to disclosure unless the attorney whom the grievance is in reference to waives the confidentiality or the disclosure is court ordered.4 If the alleged professional conduct is found to have actually been committed by the attorney, information about the grievance is no longer confidential.

Generally, there is a four-year statute of limitations from the time the alleged misconduct occurs for a person to file a grievance with the State Bar. B. AClassification Stage@ - Inquiry vs. Complaint5 Upon receiving the filed grievance, it is the responsibility of the Chief Disciplinary Counsel to determine whether the grievance, on its face, alleges professional misconduct. An attorney is only subject to discipline if they have violated the Texas Disciplinary Rules of Professional Conduct. In the event it is determined that the grievance fails to allege professional misconduct, the submission is classified as an Inquiry and is dismissed as such. On the other hand, if professional misconduct is alleged, then it is classified as a Complaint, and subsequently sent to the respondent attorney to solicit a response. The classification between Inquiry and Complaint must be made within 30 days of the filing of the grievance.

2 Attached as Appendix A is a flow chart entitled AProcessing a Grievance@ which has been taken from the State Bar of Texas Annual Report, June 1, 2009 B May 21, 2010. 3 There are four Chief Disciplinary Counsel regional office, one located in each of Austin, Dallas, Houston, and San Antonio. 4 Texas Rules of Disciplinary Procedure [hereinafter ATRDP@] 2.16 & 6.08. 5 During the 2009 B 2010 Bar year, 7,233 grievances were filed. Of the grievances considered between June 1, 2009 and May 31, 2010, 65 percent (5,142) were dismissed as inquiries. State Bar of Texas Commission for Lawyer Discipline Annual Report, June 1, 2009 B May 31, 2010.


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For those grievances that are dismissed as Inquiries, the person who filed does have the right to appeal the Counsel=s classification to the Board of Disciplinary Appeals (hereinafter ABODA@). BODA consists of an independent 12 attorney tribunal that has been appointed by the Supreme Court of Texas. Of the 2,095 appeals that were filed during the 2009-2010 Bar year, BODA reversed 232 of these, resulting in an 11 percent reversal rate.6 Upon reversal, the grievance is sent back to the Office of Chief Disciplinary Counsel and is then processed as a Complaint. C. Responding to the Complaint

Once the Complaint has been received by the respondent attorney, that attorney has 30 days from the date of receipt to respond.7 Failure to respond to a Complaint has the potential to compound the original misconduct and increase the severity of the penalty that may be imposed. To be sure, Texas Disciplinary Rules of Professional Conduct 8.04(a)(8) states in pertinent part that a lawyer shall not Afail to timely furnish to the Chief Disciplinary Counsels office or a district grievance committee a response or other information as required by the Texas Rules of Disciplinary Procedure...@ Thus, failing to timely respond may be considered professional misconduct in its own right. Ignoring the grievance will not make it go away. In fact, in the opinion of this author, this is the most common grievance to come before my panel.

Some helpful tips for responding to a grievance include the following: $ Respond specifically to each Rule violation that has

been asserted; $ Be detailed in the response, and elaborate on why or

how the alleged Rule violation did not occur as provided for in the Complaint;

$ Attach exhibits to the response to further arguments that the alleged professional conduct did not in fact occur, it is better to be over inclusive than under inclusive.

D. Reacting to the Response

The Chief Disciplinary Counsel will have 60 days from the response deadline to conduct an investigation to determine whether there is Just Cause to believe that professional misconduct occurred. Things to consider when dealing with the investigator are: 1) be professional and cooperative, 2) treat the investigator as you would a judge because, in large part, the impression you make on

6 State Bar of Texas Commission for Lawyer Discipline Annual Report, June 1, 2009 B May 31, 2010. 7 TRDP 2.10

them is going to be conveyed to the panel hearing your case, and 3) be sure to give them all of the facts and documentation, and ask what else they need. The investigator is not on witch hunt, but rather is attempting to come to a conclusion based on the information provided in order to maintain the integrity of the profession. If Just Cause is not found, the case is set before a summary disposition panel for dismissal. At this point the summary disposition panel will have the option to accept or reject the Counsel=s determination. During the 2009 B 2010 Bar year, the panel accepted the Counsel=s recommendation to dismiss 1,551 of the 1,604 cases (97%) submitted to them.8 Despite this overall affirmation rate, in the author=s experience, this is not a rubber stamp process. Panel members review the materials provided, ask questions, and vigorously debate the evidence. E. Trial of the Complaint: the Respondent=s

Election If the Chief Disciplinary Counsel=s Office

establishes that there is Just Cause or the summary disposition panel determines to proceed with the Complaint, the respondent lawyer is given written notice of the allegations and the rule violations that have been pitted against him. At this point, the respondent must make an election between having the matter heard before an evidentiary panel of the grievance committee or by a district court, with or without a jury, and he/she must do so within 20 days. Failure to make an election within the prescribed time period results in a default to the evidentiary panel of the grievance committee.

Evidentiary Panel Hearings B these hearings are confidential and allow for a private reprimand as a minimum punishment for allegations found to be true. District Court Proceedings B these hearings are public, therefore a public reprimand is the minimum punishment that one can receive if the allegations are proved to be true.

Whichever avenue is chosen, the parties consist of

the Commission for Lawyer Discipline and the respondent lawyer, and the burden of proof for the allegations of professional misconduct is by a preponderance of the evidence. The commission is represented by attorneys for the State Bar and the responding attorney can be represented by counsel. If responding to a grievance, choose your counsel carefully.

8 Statistic provided by the State Bar of Texas Commission for Lawyer Discipline Annual Report.


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In many instances, hired counsel who are inexperienced in grievance hearings do nothing but throw gasoline on the fire. F. Basis for Punishment

Global considerations are made by a district court or evidentiary panel in determining the appropriate sanction to be imposed on the respondent attorney found to have committed professional misconduct. These considerations include, but are not limited to the following:9 $ Nature and degree of the professional misconduct; $ Seriousness of and circumstances surrounding the

professional misconduct;Loss or damage to clients; $ Damage to the profession; $ Assurance that those who seek legal services in the

future will be insulated from the type of professional misconduct;

$ Profit to the attorney; $ Avoidance of repetition; $ Deterrent effect; $ Maintenance of respect for the legal profession; $ Conduct of the respondent during the course of the

disciplinary proceeding; and $ Respondent=s disciplinary history. In fact, the conduct of the Respondent during the course of the investigation can be very illuminating. When a case comes down to credibility, an attorney is held to a higher standard in terms of how they have responded to the grievance. Obstructionist or other type of belligerent responses are usually not well received. G. Types of Punishment

The different types of sanctions, or levels of discipline, include the following:10

1) Private Reprimand B this form of punishment is only available if the case is tried before an evidentiary panel, and is the least level of discipline that can be given. A private reprimand will remain as part of the lawyer=s disciplinary history and may be considered in the event of future professional misconduct allegations. A private reprimand may not be utilized under the following circumstances:

9 This list comes from the State Bar of Texas Commission for Lawyer Discipline Annual Report, June 1, 2009 B May 31, 2010. 10 This list comes from the State Bar of Texas Commission for Lawyer Discipline Annual Report, June 1, 2009 B May 31, 2010.

$ A private reprimand has previously been imposed upon the lawyer within the preceding five year period for a violation of the same disciplinary rule; or

$ The lawyer has received two or more private reprimands within the past 10 years; or

$ The misconduct includes theft, misapplication of fiduciary property, or the failure to return, after demand, a clearly unearned fee; or

$ The misconduct has resulted in a substantial injury to the client, the public, the legal system, or the profession; or

$ There is a likelihood of future misconduct by the respondent lawyer; or

$ The misconduct was an intentional violation of the ethics rules.

2) Public Reprimand B this is a public

punishment which includes the attorneys name. This discipline is not available if the lawyer has undergone a public reprimand within the past five years for a violation of the same disciplinary rule; or the lawyer has received two or more public reprimands for any rule violations, during the past five years.

3) Suspension for a Term Certain B also known as Aactive suspension,@ this form of public discipline prohibits a lawyer from practicing law for the length of the suspension. Upon concluding the active suspension, the lawyer is eligible to practice law, so long as all other requirements for eligibility to the Bar are current.

4) Fully Probated Suspension B this public discipline is for a term certain, but because the suspension is probated, it means that the lawyer is permitted to practice law during the period of suspension as long as other Aterms of probation@ are complied with throughout the suspension period.

Typical terms of a probated suspension include requiring that the lawyer refrain from engaging in further misconduct, not violate any state or federal criminal statutes, keep the State Bar notified of current contact information, maintain CLE requirements, comply with rules pertaining to trust accounts, and respond to all inquiries from the Chief Disciplinary Counsel in connection with their investigation.

Additional terms of a fully probated suspension may include such things as being required to take additional CLE hours,


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participate is the Law Practice Management program, submit to a psychological evaluation, attend substance abuse counseling, practice law under a supervisor, or pay restitution and attorney=s fees.

A fully probated suspension is not available if:

$ A public reprimand or fully probated

suspension has been imposed on the attorney with the past five years for a violation of the same rule; or

$ The lawyer has received two or more fully probated suspensions for the violation of any disciplinary rule within the past five years; or

$ The lawyer has previously received two or more sanctions of public reprimand or greater imposed for conflict of interest, theft, misapplication of fiduciary property, or the failure to return a clearly unearned fee after demand.

5) Partially Probated SuspensionB this type of

punishment is a combination of an active suspension followed by a period of probated suspension and is public.

6) Disbarment B this is the most severe form of punishment which results in a complete loss of a lawyer=s law license. Once disbarred, the lawyer=s name is removed from membership rolls of the Supreme Court and the lawyer is required to turn in his or her bar card.

A lawyer may petition a district court to be reinstated after a period of five years. The lawyer must prove that reinstatement is in the best interest of the public and the profession, as well as the ends of justice. If this application is granted, the lawyer must retake and pass the Bar Exam before being reinstated.

7) Ancillary Sanctions B in addition to the forms of discipline set forth above, the term Asanction@ may include ancillary requirements such as: 1) restitution, and 2) payment of reasonable attorney=s fees and all other direct expenses associated with the disciplinary proceedings.

III. ALTERNATIVES TO THE GRIEVANCE

PROCEDURE A. Grievance Referral Program

The Grievance Referral Program allows lawyers who have engaged in minor misconduct and who otherwise meet the eligibility requirements complete a

remedial or rehabilitative program specifically tailored to address the issues that contributed to the misconduct the lawyer is being accused of in exchange for a dismissal of the underlying Complaint by the Commission for Lawyer Discipline. The issues typically addressed through the Grievance Referral Program include communication problems, poor law practice management skills, or mental health issues negatively affecting the lawyer=s ability to practice law. Failure to fully complete the terms of the Grievance Referral Program in a timely manner results in moving the Complaint forward through the usual disciplinary process. B. Client-Attorney Assistance Program

The Client-Attorney Assistance Program (CAAP) is a statewide dispute resolution program and service of the State Bar of Texas. The purpose of CAAP is to assist clients and attorneys in resolving minor problems affecting their relationships before a grievance is filed. IV. COMMON GRIEVANCES ALLEGED AND

WAYS TO AVOID THEM A. Failure to Respond, Lack of Communication,

and Neglect Failure to respond to a client=s emails and/or phone

calls and an overall failure to communicate with a client are both contributing factors in drawing a grievance. Client frustration with a lack of communication result in it being one of the most common grievances. Both of these occurrences result in neglect of the client=s case. Neglect, as used in this context, is defined by the Texas Disciplinary Rules of Professional conduct to signify Ainattentiveness involving a conscious disregard for the responsibilities owed to a client or clients.@11 Texas Disciplinary Rules of Professional Conduct 1.03, addressing ACommunication,@ states that A[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.@ Furthermore, the preamble to the Texas Disciplinary Rules of Professional Conduct dealing with a lawyer=s responsibilities says, A[a] lawyer should maintain communication with a client concerning the representation.@

In order to help prevent a grievance for failing to respond, lack of communication, or for neglect, make returning phone calls and/or emails a priority. If a client does not hear from you regarding their pending case, they assume you are doing nothing. Although an attorney typically has multiple cases that are all being juggled at the same time, it is important to remember that each individual case is that particular client=s only case, and as such has significant importance to them. Keep

11 Texas Disciplinary Rules of Professional Conduct 1.01


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clients reasonably informed, and check in with them every so often even if there is not any current or ongoing activity in their case. Additionally, if you anticipate a Aproblem@ client, document the times that you contacted that client or attempted to contact that client, the duration of the contact, and take accurate notes. This paper work is essential if you later find yourself facing a grievance. Most panels accept more from an attorney than Ahe said, she said@ about who called who when.

It is also important to properly calendar deadlines and due dates in each particular case, and inform clients of such. Not only will this keep you in contact with the client, but will also keep you on schedule. Failure to comply with deadlines may not only result in a grievance, but could potentially have you faced with a malpractice suit as well.

Lastly, if communication with your client becomes ineffective or non-existent through circumstances that are beyond your control, do not overlook the possibility of a withdrawal. Being unable to effectively communicate with your client is a valid and acceptable reason to file a Motion for Withdrawal of Counsel. B. Safeguarding Property

A common issue giving rise to a grievance is that of safeguarding property. Rule 1.14 of the Texas Disciplinary Rules of Professional Conduct sets forth the requirements of handling and separating client=s funds or other property that the attorney may come into possession of. Failure to exercise caution and adhere to the guidelines set forth in Rule 1.14 can result in an upset client. Examples of failure to safeguard property include failing to keep the client=s funds in a trust account, and/or commingling those funds with the attorney=s.

In order to avoid grievances with respect to safeguarding property, also keep client=s monies in a separate trust account. Be prepared to provide an accurate accounting of the funds that have moved in and out of that trust account. C. Attorney=s Fees

Another area that seems consistently ripe for attracting grievances is with attorney=s fees. It is not uncommon, especially in the family law arena, to have a client that is less than satisfied with the fees incurred at the conclusion of a case.

To help alleviate fee disagreements at the end of a case, it is wise to discuss this matter comprehensively with a client at the commencement of the representation. This should begin with the employment contract. It is important that the employment contract specifically set forth the fee arrangement employed by the attorney. A good practice is to point out that provision in the contract and ask if there are any specific questions in that regard

before the client signs the agreement. It is reasonable to suspect that a client that has a problem with the fee arrangement before signing the contract will continue to have that same problem throughout representation and at the end of the case as well.

D. Miscellaneous Tips to Avoid Grievances or

Otherwise Protect Yourself in the Event of a Grievance A mentioned previously, a withdrawal can be an

effective tool to avoid a grievance. It is not always possible to identify a client=s Atrue colors@ during an initial interview. Therefore, if you become aware that the client poses a threat during the course of representation, it is wise to terminate the representation at first blush, rather than stay involved in the case.

Similarly, it is not always possible to determine the full complexity of a particular case during an initial interview. In the event you find yourself in a situation where the issues are more complex than your capabilities, seek help from outside experts.

Lastly, it is important to keep an immaculate file, and be sure to get everything in writing. This may not enure that you are protected from receiving a grievance, but will serve as a tremendous boon in the event of a grievance. This is a wise practice with all clients, not just the ones that you are concerned may become a problem. V. CONCLUSION

The purpose of this paper is to help enlighten the reader of the grievance process and provide insight as to the steps to take in responding to a grievance that has been filed. It is important to remember that the grievance process has been established to hold attorneys to a certain standard and maintain the integrity of this honorable profession. The most important thing a lawyer can do when they receive a grievance is not to panic. Make sure you file a detailed response and respond to the investigator. The grievance process is not a witch hunt, and for the most part, investigators will bend over backwards to try and assist you. This is especially true if you are not a repeat offender. Don=t ignore the process, but rather be proactive with the investigator and seek out competent, experienced representation if you remotely believe you need help. An attorney who is familiar with the process can be an invaluable aid.

APPENDIX A

— Processing a Grievance —

*Evidentiary Judgments are appealed to BODADistrict Court Judgments are appealed to state appellate court

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