ATTORNEY WRONGDOING - THE GRIEVANCE PROCESS

Transcription

1 ATTORNEY WRONGDOING - THE GRIEVANCE PROCESS DAWN E. FOWLER RAGGIO & RAGGIO, PLLC 3316 OAK GROVE AVENUE DALLAS, TEXAS (fax) def@raggiolaw.com ADVANCED FAMILY LAW DRAFTING COURSE December 6-7, 2001 Houston, Texas CHAPTER 4.1

2 DAWN E. FOWLER Raggio & Raggio, P.L.L.C Oak Grove Avenue Dallas, TX (214) CONDENSED VITAE Board Certified, Family Law, Texas Board of Legal Specialization Education Employment B.S. in Criminal Justice, University of Texas, Arlington, 1975 J.D., Southern Methodist University, 1984 Mediation Training (general, family, CPS) Collaborative Law Training, present: Raggio & Raggio, P.L.L.C. General family law practice Memberships State Bar of Texas, since 1984 Family Law Section College of the State Bar of Texas - since 1991 Charter Member (1992) - Pro Bono College District 6 Grievance Committee Member ; ; Panel Vice-Chairperson, Panel Chairperson, 1996 Mentor Program - since 1998 Texas Family Law Practice Manual Committee ( ) Texas Academy of Family Law Specialists, 1996 Texas Bar Foundation, elected as a Fellow, 1990 Dallas Bar Foundation, elected as a Fellow, 1993 American Bar Association, since 1985 Dallas Women Lawyers Association, since 1985 Dallas Bar Association, since 1985 Secretary-Treasurer, 2001 Family Law Section, Board of Directors: ; ; Chairperson Solo and Small Firm: Chairperson, 1990 Probate Section: Volunteer - Wills Project DVAP: Volunteer, advisor, trainer, speaker since 1987 Committees: Legal Aid; CLE; ADA; Attorney Referral; Legalline (Co-Chair, 2000); Fee Disputes Panel; Peer Assistance Home Project,

3 TABLE OF CONTENTS I. INTRODUCTION... 1 II. THE GRIEVANCE PROCESS... 1 III. HOW TO AVOID THE GRIEVANCE PROCESS COMMON SITUATIONS AND PROPOSED SOLUTIONS A. SITUATION: Communications Returning Telephone Calls Written Communication with the Client Settlement Offers Communications with Person Represented by Another Attorney Effective Interviews / Accepting and Continuing Employment B. SITUATION: Fees Fee Arrangements Contingent Fees Non-Refundable Retainers Referral Fees C. SITUATION: Securing Client Funds and Property - Trust Accounts... 5 D. SITUATION: Securing Client Funds and Property - Returning Client Files... 6 E. SITUATION: Leaving a Law Firm... 6 F. SITUATION: Meritorious Claims / Defenses... 7 G. SITUATION: Conflict of Interest... 7 H. SITUATION: Notifying Clients About the Grievance System... 7 I. SITUATION: Advertising... 7 J. SITUATION: Help is Needed III. WHAT TO DO AFTER YOU RECEIVE A GRIEVANCE Appeal the Classification as a Complaint to the Board of Disciplinary Appeals Call the State Bar Continue Representing Your Client Determine if You Should Hire An Attorney Respond Timely to the Complaint Respond to the Complaint The Investigatory Hearing a. Attend the Hearing b. Be on time c. Bring your entire file d. Witnesses... 9 e. Do not Disseminate Additional Information at the Hearing f. Know and Respond to Your Audience g. Answer the Question Propounded to You and Only the Question Propounded to You i

4 h. Know When to Shut Up i. Control Your Emotions, Particuarly Anger lv. CONCLUSION Appendix A Appendix B Appendix C ii

5 I. INTRODUCTION Approximately ninety percent (90%) of all complaints received by the State Bar of Texas are from clients with cases in the area of family law, personal injury, or criminal law. If you practice family law, it is truly not a question of if but when a grievance will be filed against you. The purpose of this article is to highlight the situations in which most complaints are made, precautions to take to try to avoid these situations, how the grievance process works, what to expect when you receive a grievance, and how to defend yourself. II. THE GRIEVANCE PROCESS The Texas Disciplinary Rules of Professional Conduct and Texas Rules of Disciplinary Procedure (hereinafter referred to as Rule ) can be found in your Texas Rules of Court and Texas Government Code, Chapter 81. One of the best ways to avoid a complaint is to read these rules at least once a year. The Grievance Committee only hears matters that have been determined by the Chief Disciplinary Counsel s regional or field office to allege professional misconduct. Such matters are called Complaints. Other communications concerning alleged attorney conduct that, even if true, do not allege professional misconduct or a disability, are called an Inquiry. Over 9,000 grievances are received each year by the State Bar. The good news is that the majority are dismissed. Anyone can file a grievance - clients, former clients, opposing counsel, judges, opposing parties, witnesses, etc, and the State Bar. For most rule violations, there is no standing requirement, no requirement that an attorney-client relationship exist, or a requirement that the client or another party was actually harmed. The person filing the grievance is called the Complainant ; the attorney against whom the grievance is filed is called the Respondent. Grievances must be in writing. The State Bar has a form packet that is sent to anyone upon request. When the original grievance is received, it is reviewed by an investigator of the State Bar to determine whether or not on its four-corners it alleges professional misconduct under the Texas Disciplinary Rules of Professional Conduct. In making this review, the investigator is required to assume that the allegations are truthful and accurate. If a grievance factually alleges misconduct, the rules require that both the grievance be classified as a complaint and that a hearing actually be held (unless there is a successful appeal to the Board of Disciplinary Appeals [BODA] before the hearing is held). THERE IS NO DISCRETION. Under the rules, neither the State Bar nor any Grievance Committee has the authority to summarily dismiss complaints without a hearing even if the attorney s response disproves all of the Complainant s allegations of misconduct. A copy of the complaint is sent along with a letter from the Chief Disciplinary Counsel s office instructing the attorney to respond within 30 days. See Appendix A. The attorney can appeal the Chief Disciplinary Counsel s decision to classify the matter as a complaint. The appeal is directed to the Board of Disciplinary Appeals ( BODA ). An appeal does not suspend the investigation, and the grievance committee will hold an investigatory hearing pending the appeal. However, if misconduct is found at the investigatory level, no evidentiary panel can be assigned until the appeal is resolved. A successful appeal results in dismissal of the grievance. See Appendix B for a copy of the form to file to appeal. The Committee acts through panels composed of 2/3 attorneys and 1/3 public members. There are investigatory and evidentiary panels. A panel member is disqualified to sit on a particular case if a district judge, in similar circumstances, would be disqualified. A majority of the panel is a quorum, but at least one public member for every two attorney members must be present at each hearing. To be eligible to vote, a member must hear all the evidence. A tie vote is considered a vote in favor of the attorney. Every complaint is presented to an 1

6 investigatory panel to determine whether there is Just Cause. 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 has committed an act or acts of professional misconduct requiring that a sanction be imposed, or suffers from a disability that requires either suspension or probation from the practice of law. The investigatory panel must be convened within 30 days of receiving the attorney s written response to the complaint. Prior to the investigatory hearing, all panel members receive a copy of the complaint and the attorney s response. The purpose of the hearing is to obtain any information that may be needed to clarify and/or understand the situation. It is not an adversarial hearing, and the parties are not permitted to question or cross-exam each other. The investigatory proceeding may proceed without either or both parties unless the panel concludes it must have further evidence to make its determination. Even though a complainant may withdraw the complaint, the investigatory proceeding will occur. The investigatory hearings, discussions, and voting are strictly confidential and are not subject to discovery or production. However, when there is a finding of Just Cause, and a sanction other than a private reprimand is agreed to by the attorney, then all information that was brought to the panel s attention may be made public upon proper request. If the panel votes unanimously that there is no Just Cause, the complaint is dismissed. The Complainant may refile the complaint with additional evidence at any time. If the panel finds that there is no Just Cause, but the vote is not unanimous, the Complainant may request another investigatory hearing before different panel members. If the majority of the second panel votes that there is no Just Cause, the complaint is dismissed. If the investigatory panel finds Just Cause, an offer letter is sent to the attorney, and several things may happen: 1. The attorney may agree to the sanction proposed by the Committee. The sanction can range from a private reprimand to resignation in lieu of disbarment. The attorney can also be referred to PEP (Professional Enhancement Program). NOTE: A private reprimand cannot be utilized if: a. A private reprimand has ben imposed upon the attorney within the preceding five (5) year period for a violation of the same disciplinary rule. b. The attorney has previously received two or more private reprimands, whether or not for violation of the same disciplinary rule, within the preceding ten (10) years. c. The misconduct included theft, misapplication of fiduciary property, or the failure to return, after demand, a clearly unearned fee. d. The misconduct has resulted in substantial injury to the client, the public, the legal system or the profession. e. There is a likelihood of future misconduct by the attorney. f. The attorney s misconduct was an intentional violation of the Texas Disciplinary Rules of Professional Conduct. 2. The attorney can try to negotiate another sanction. Many voted sanctions are negotiable and the attorney may respond with any counter-offer within ten (10) days. The counter-offer will be taken back to the investigatory panel that heard the case for acceptance or refusal. 3. If negotiation of another sanction is 2

7 not successful, a judgment is sent to the attorney. If the attorney does not accept the judgment within twenty (20) days, one of two things will happen: a. Further proceedings are conducted before an evidentiary panel. At this point, no private reprimand is available. b. Rather than an evidentiary panel hearing, the attorney can elect to proceed with a trial de novo in the District Court. Again, no private reprimand is available. NOTE: The 20-day time frame is jurisdictional and cannot be extended by agreement. Therefore, it is vital for an attorney who has successfully negotiated a sanction with the committee to sign the judgment within 20 days. For example, if a private reprimand is negotiated, but the judgment is not timely signed, the private reprimand is no longer available. Even if an agreement for a public sanction is negotiated, the committee loses its jurisdiction to negotiate if it is not timely signed, and the matter goes to the Commission for Lawyer Discipline for settlement. The Commission is not bound by the previously voted or negotiated sanction. NOTE: For information about the District Court or Evidentiary Panel process, refer to Rules , Texas Rules of Disciplinary Procedure. Other things that can occur: 1. If the investigatory panel finds that an attorney poses a substantial threat of irreparable harm to the public, the Chief Disciplinary Counsel can seek an immediate interim suspension of the attorney by filing a petition in District Court. 2. The Chief Disciplinary Counsel or anyone else can petition for the appointment of a custodian for the attorney s files when the attorney has disappeared, become disabled, died, resigned, become inactive, or been disbarred or suspended. 3. If an investigatory panel finds that an attorney is suffering from a disability, this finding is forwarded to the Board of Disciplinary Appeals (BODA). A special disability committee reviews the finding, and if they agree, BODA immediately enters an order indefinitely suspending the attorney. The attorney may appeal the finding to the District Court. NOTE: Disability is defined as any physical, mental, or emotional condition that, with or without a substantive rule violation, results in the attorney s inability to practice law, provide client services, complete contracts of employment, or otherwise carry out his or her professional responsibilities to clients, courts, the profession, or the public. As indicated, no substantive rule violation is required to find an attorney has a disability. The disability process tolls the statute of limitations for disciplinary matters. III. HOW TO AVOID THE GRIEVANCE PROCESS COMMON SITUATIONS AND PROPOSED SOLUTIONS. A. SITUATION: Communications 1. Returning Telephone Calls. According to the Chief Disciplinary Counsel s Office, the number one source of grievances arises from failure to return telephone calls. Rule 1.03 requires an attorney to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. Failure to return telephone calls is a rule violation. If you are unable 3

8 to return a client s telephone call within 24 hours, have someone call the client and give them an approximate time frame within which you will be able to talk to them. If you have voice mail, customize your outgoing message to tell the caller you are in trial, out of town, or otherwise not available for a specific time frame. Send vacation letters to your clients as well as opposing counsel and the courts. Keep telephone logs which document who called you, when you returned the call, and a brief summary of the call. 2. Written Communication with the Client. The attorney has an affirmative duty to keep the client informed. Rule Copy the client with all correspondence received or sent in a case. Any matter that involves a client decision should be put in writing specifically stating the issue, the options, and any other information the client may need to make an informed decision. Memorialize all important office and/or telephone conversations in a writing that is placed in the client s file, and send a copy to your client. Keep your client informed of all developments in the client s case, and put it in writing. The strongest memory is weaker than the palest ink. (author unknown) 3. Settlement Offers. An attorney must communicate any settlement offer to the client in a civil case except where prior communications have made it clear that a particular proposal would be unacceptable to the client. Rule (See number 2 above). 4. Communications with Person Represented by Another Attorney. Unless you have the consent of the other lawyer, a lawyer is prohibited from communicating or causing or encouraging another person to communicate about the subject of the representation with a person, organization, or entity that the lawyer knows to be represented by another lawyer regarding the subject matter. Rule Additionally, the lawyer is prohibited from communicating with a person or organization the lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation. Rule 4.02(b). If the other side does not have an attorney, you may talk to them. However, you should not state you are disinterested, and should correct any misunderstandings about your role that may arise. 5. Effective Interviews / Accepting and Continuing Employment. Carefully listen to prospective clients to determine if you should accept their case. Do you have the time? Does the client have the necessary funds? Are the client s expectations reasonable? If you know who will be representing the other party, what is your relationship with that attorney or what is their reputation? Would you be the third attorney on the same case? Is the case set for trial within the month? Are there things that just do not make sense? Look for the red flags. Once you are in the case, periodically talk with the client to make sure they are satisfied with your representation and are maintaining realistic expectations. Watch their billing statements. If you are not getting paid, cannot work out a payment plan with your client, and can withdraw without prejudicing their case, you need to do so. B. SITUATION: Fees 1. Fee Arrangements Have a written fee contract in every case. The Texas Disciplinary Rules of Professional Conduct only require written fee contracts for a contingency fee. However, a large number of grievances arise over a misunderstanding about fees. Although the Grievance Committee does not hear fee disputes, almost inevitably the complaint will involve a failure to communicate on other issues as well as fees. 2. Contingent Fees. Contingent fees are permissible in all civil cases. Although the comments to Rule 1.04 state that contingent fee arrangements in family law cases are rarely justified, the evolution of family law to include other civil claims has created situations not 4

9 contemplated when the rules were enacted. There are situations in which a family law attorney may have two contracts with a client - one based on an hourly fee; one based on a contingency. A contingent fee agreement must be in writing and shall state the method by which the fee is to be determined. Any litigation expenses to be deducted from the recovery must be specified as well as whether such expenses are to be deducted before or after the contingent fee is calculated. Rule 1.04(d). A written settlement statement must be provided to the client at the conclusion of the matter which shows the remittance to the client and the method of calculation. 3. Non-Refundable Retainers. The rules do not specifically address the issue of non-refundable retainers. However, a dispute arising out a failure to return any portion of a non-refundable retainer will, in all likelihood, be strictly scrutinized. Further, Rule 1.04 prohibits a contract for, or the charging or collection of, an unconscionable fee. In 1993, New York determined that non-refundable fees are unethical per se. The attorney may be wise to designate any non-refundable payment in their contract as a fee, and any refundable payment as a retainer since the word retainer indicates that work is anticipated rather than already performed or earned. 4. Referral Fees. Although splitting fees with a non-lawyer is prohibited, a referral fee may be paid to a forwarding attorney. Rule 1.04(f)(1)(ii). C. SITUATION: Securing Client Funds and Property - Trust Accounts Every attorney (or firm) must maintain a separate trust account into which all client funds and other fiduciary funds must be deposited. Since July 1, 1989, every attorney holding client funds which are nominal in amount or reasonably anticipated to be held for a short period of time is required to participate in the Texas Interest on Lawyers Trust Account program (IOLTA). The attorney must direct the depository institution to remit, at least quarterly, interest earned on the average daily balance in the account, less reasonable service charges. If the amount of client funds are nominal in amount or are reasonably anticipated to be held for a short period of time, they can be combined with like funds of other clients into one unsegregated trust account. If the amount of client funds are significant, a separate trust account should be established with the interest earned on the money paid to the client. So long as the attorney (or law firm) makes this determination in good faith in accordance with the rules, they are not liable. If the attorney is unable to locate an account that would generate more interest than service charges, the funds can be maintained in a noninterest bearing client trust account. This must be disclosed on the annual IOLTA reporting form. In no event should the interest generated on any client trust funds be paid to the attorney. The Rules also cover the attorney s obligation to keep client funds safe and separate from the attorney s funds. If an attorney receives monies which constitute prepayment of a fee, those monies belong to the client and should be deposited into the trust account until the services are actually rendered. After the client has been advised that the service has been rendered and the fee earned, the lawyer may withdraw the applicable fee from the trust account. Obviously, a lawyer should not use trust account funds due to the lawyer to make direct payments to the general creditors of the lawyer. The lawyer must keep and preserve complete records of client trust funds for a period of five years after the termination of representation. Rule The attorney must promptly notify the client of any funds received on the client s behalf. Rule 1.14(b). NOTE: If a violation of Rule 1.14 occurs, a private reprimand is generally not available. Nothing will get an attorney in deep trouble faster than mishandling client funds. 5

10 D. SITUATION: Securing Client Funds and Property - Returning Client Files Failure to return a client s file is one of the top ten complaints filed. Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client s interest, such as giving reasonable notice to the client, allowing time for other employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payments of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law only if such retention will not prejudice the client in the subject matter of the representation. Rule 1.15 (emphasis added). Ethics Opinions 118 (1955) and 411 (1984) both address this issue, but fail to give clear guidance. The central question is whether retention of the file will prejudice the rights of the client. No Texas case or ethics opinion provide an answer. At least in Dallas, the grievance committee has historically taken the position that retention of files always prejudices the client if the subject matter of the representation is still on-going. Even if the case is concluded, prejudiced is still addressed. With the changes in local court rules and the Texas Rules of Civil Procedure regarding maintenance of paperwork by the attorney, it has become even more prudent to return client files to the client. Since the majority of discovery will not be filed with the Court, and clients are historically unreliable about retaining paperwork forwarded to them, a client s case could easily become prejudiced if the new attorney is not given a complete client file. The attorney bears the cost of returning the file to the client, including any copy expense involved. Whenever possible, obtain a receipt for the file that specifically states if you are retaining anything, and whether you are retaining a copy of the file. On this note, it is recommended that you retain a copy of every file for four (4) years. In the absence of fraud, this is the statute of limitations for grievances. Further, it is not unusual for a client to file a second grievance against an attorney many years after the first one is dismissed. If you have retained your file, you will also have a copy of the grievance materials and may have a valid res judicata argument. E. SITUATION: Leaving a Law Firm Initially, you must determine the status of the clients currently represented. Do you have an ethical obligation to inform the client you are leaving the firm? Is the client your client or the firm s client? Two questions must be answered: 1. Is there a written contract of employment? If so, the contract should specify with whom the client is contracting. In most cases, the contract will specify that the client is being represented by the firm, and not an individual attorney. If so, the client belongs to the firm. 2. Are you the attorney of record on any case filed on behalf of the client? If so, you have an ethical obligation to withdraw as the attorney of record before your departure. Rule 10, Texas Rules of Civil Procedure, sets out the requirements for an attorney to withdraw from a case. Also, check to see if the county in which the case is filed has any local rule requirements. If you are the attorney of record on any case filed on behalf of the client, you (NOT THE LAW FIRM), have an obligation to notify the client of your impending departure and the need for your withdrawal as attorney of record. At that point, the client has the right to terminate his or her contractual relationship with the law firm and retain your services if the client desires. However, the client is not relieved of their contractual obligations with your former firm, and in the case of a contingent fee contract, remains liable for the entire contingent fee set forth in the contract. If you are not the attorney of record on any pending matters and the client s contract of employment is with your law firm rather than you individually, then you probably have no ethical duty to inform the client in writing of any impending departure. However, if you have been working with 6

11 the client, it is highly recommended that you inform the client in writing before your departure, keep a copy of the letter in the client s file, keep a copy for your own records, and give the law firm you are leaving a written report on the client and the status of their case. F. SITUATION: Meritorious Claims / Defenses A lawyer is prohibited from bringing or defending a proceeding, or asserting or controverting an issue unless the lawyer reasonably believes there is a basis for doing so that is not frivolous. Rule Frivolous means an assertion that is made primarily for the purpose of harassing or maliciously injuring a person. It also means an assertion for which the attorney is either unable to make a good faith argument that the action taken is consistent with existing law or that it may be supported by a good faith argument for an extension, modification, or reversal of existing law. A contention that contains a knowing false statement of fact is frivolous; facts that are not first fully substantiated are not. A lawyer shall not knowingly make a false statement of material fact or law to a tribunal, nor offer or use evidence that the lawyer knows to be false. Rule 303(a)(1); (5). A lawyer shall not knowingly fail to disclose an unprivileged fact to the tribunal which the lawyer reasonably believes should be known by that entity for it to make an informed decision in an ex parte proceeding. Rule 3.03(a)(3). A lawyer shall not knowingly fail to disclose to a tribunal authority in a controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by the opposing counsel. Rule 3.03(a)(4). G. SITUATION: Conflict of Interest A lawyer shall not represent opposing parties to the same litigation. Rule 1.06(a). In other situations, a lawyer shall not represent a person if the representation of that person: a) involves a substantially related matter in which that person s interests are materially and directly adverse to the interest of another client of the lawyer or the lawyer s firm; or b) reasonably appear to become adversely limited by the lawyer or law firm s responsibility to another client or to a third person or the lawyer s or law firm s own interest. Rule 1.06(b). H. SITUATION: Notifying Clients About the Grievance System Attorneys are required to notify their clients about the existence of the grievance system and how to file a complaint. Tex.Gov t. Code Ann., State Bar Act, There are four alternate methods of dissemination to comply with this requirement: 1) Place a sign in your office (a sample copy of the notice is attached at the back of this article as Appendix C); 2) Have State Bar of Texas brochures in your reception area or in your office (these brochures can be obtained by calling the State Bar Communications Office at ; 3) Include the necessary language in your fee contracts; and 4) Include the necessary language in your billing statement. Only one of these methods has to be used; not all four. I. SITUATION: Advertising Carefully read Section VII (Information About Legal Services) of the Texas Disciplinary Rules of Professional Conduct. With reference to public advertisements, submit to the Lawyer Advertisement and Solicitation Review Committee of the State Bar of Texas, and when possible, obtain pre-approval. When you send your ad and fee after your ad is published, and they believe you have violated the rules, they will file a grievance against you. A favorable advisory opinion from them before the ad is published is binding on the grievance committee; an unfavorable one is not binding. J. SITUATION: Help is Needed. If you are overwhelmed, unsure of office procedures, having problems with a client, or just need help on a particular issue, call the Professionalism Enhancement Program (PEP) for 7

12 help. The PEP committee may be able to resolve your problem before a grievance is filed by a client or clients, get a mentor to assist you, and/or refer you to resources. Call your local State Bar office for the time and place of PEP meetings or name of the committee coordinator. If you have a drug, alcohol, or emotional problem that is affecting your ability to practice law, know that you have lots of company and seek help. This can be done confidentially and without fear of being reported to the State Bar. Call Texas Lawyers Assistance Program (TLAP) at for assistance and/or referral to a group or individual in your geographic area. If you know or strongly suspect another attorney is having a substance abuse or emotional problem that is affecting their ability to practice law, you may also make a referral to TLAP or a local approved agency. They have persons who will contact the attorney and provide intervention if required. All steps of this process are completely confidential. Neither the State Bar nor the grievance committee are notified if help is requested or sought. III. WHAT TO DO AFTER YOU RECEIVE A GRIEVANCE 1. Appeal the Classification as a Complaint to the Board of Disciplinary Appeals. The Board of Disciplinary Appeals is comprised of twelve attorneys. Historically, the Board grants approximately nineteen percent (19%) of all Respondent s appeals. If your appeal is granted, the complaint is dismissed. Remember, however, that filing an appeal does not stay the grievance proceedings or extend your time period to respond to the grievance committee. 2. Call the State Bar. Talk to the Investigator who signed the letter from the Chief Disciplinary Counsel s Office enclosing a copy of the client s complaint. Ask whatever questions you may have about the procedure, what you need to include in the response, and what rule violations are being asserted in the grievance. If you need one, ask for a continuance to file your response. If you believe the complainant may pose a physical danger, request that security measures be taken. CAUTION: The investigator can only give you their opinion of what rule violations the committee will be considering. The committee may focus on other issues, and other issues may arise in the course of the investigatory hearing. 3. Continue Representing Your Client. If the client s case is not concluded and they have not fired you, you must continue to represent their interests or, if you can do so without prejudicing their case, withdraw as their attorney in accordance with the Rules of Civil Procedure. You may talk to your client about the grievance as long as there is no perception that you are trying to buy them off. Remember, even if a client withdraws a complaint, an investigatory hearing must still be held. However, if the issue has been resolved, it is always helpful when the client has written a letter stating that they are satisfied with the resolution, do not wish to proceed with their complaint, and are satisfied with your representation. 4. Determine if You Should Hire An Attorney. Whether you need an attorney to represent you is primarily a personal decision. Most attorney Respondents represent themselves. It is not going to influence the committee whether you have an attorney or represent yourself. However, it would be wise to hire an attorney if: a. the complaint alleges fraud, misappropriation of trust funds, or conduct that could give rise to criminal prosecution. b. you are not going to be able to control your anger or hurt feelings, or if you just cannot deal with the situation. c. you simply do not have the time to analyze the situation from an outsider s perspective, and prepare a professional written response. 8

13 d. you will not be able to answer only the questions asked at the investigatory hearing. 5. Respond Timely to the Complaint. It is very simple. You do not even have to read the rules; there is a conspicuous warning in the letter from the State Bar. Failure to timely file a written response to a Grievance Committee within thirty (30) days from the date of your notice from the State Bar is a violation of Rule 8.04(a)(8). It also sends a very negative message to the members of the Grievance Committee for three reasons. First, you can easily obtain a reasonable continuance from the State Bar. Second, it will appear that either you do not pay attention to your business - which may confirm some of the allegations against you - or that you do not respect the fact that there are responsibilities that go along with your privilege to practice law. Third, the committee members are all volunteers who spend many hours preparing for the hearings. Not only would they like to think that time is well spend, they sincerely want to have the information needed from both sides necessary to make an informed decision. Both the attorney and the public members of the committee respect the investment it takes to earn a law degree, and take their roles very seriously. They expect the same from Respondent attorneys. 6. Respond to the Complaint Read the Complaint. Break it down by allegation, if possible, and respond to each allegation. Do not make this a brief, but consider a similar organizational format. You should briefly summarize when and why you were hired, and include a copy of your employment contract. Make your response short, direct, and easy to read. You do not need to recite every fact and detail about the client s case. Stick to the relevant facts. If your response is longer than 3-4 pages, you probably need to reorganize or edit. Attach all documentary evidence supporting your response. Relevant pleadings, time records, billing statements, memorandums of telephone calls or events, settlement documents, a chronological sequence of events, and other similar documentation are particularly helpful. Again, stick to what is relevant to the complaint. Do not include your entire file. If there is someone who can corroborate your response, ask them to prepare a statement and include it with your response. Try to avoid sarcastic, degrading, or insulting comments about the Complainant. Do not divulge information about your client that has nothing to do with the complaint. Put your anger and hurt feelings on the bad burner. Be professional and courteous. Admit when you have made a mistake or have a problem with your office procedures, and tell the committee what steps you have taken to make sure the problem has been corrected. 7. The Investigatory Hearing. a. Attend the Hearing. The rules do not mandate attendance at the investigatory hearing by either the Complainant or the Respondent attorney. Both are merely invited to appear. Rule 2.11, Texas Rules of Disciplinary Procedure. However, most complaints are essentially swearing matches, and if only the Complainant appears, the Respondent attorney is at a distinct disadvantage. If a conflict arises, hand-deliver or fax a written request for continuance and state the basis of the request. It is up to their discretion, and your excuse may require independent verification. Hiring an attorney at the last minute is not a good excuse. b. Be on time. Several hearings may be set for the same time period (ie: between 1:30 and 2:30 p.m.), and there is no way to predict how long each hearing will take. Be early, but bring something to do if you have to wait. If you are not on time, the committee may start without you. c.. Bring your entire file. Have your file organized and ready if a question is asked that requires a reference to the file. d. Witnesses. Notify the State Bar office if you anticipate bringing a witness who will offer non-cumulative testimony so adjustments can be made to the docket. However, be aware that the committee has the discretion to decide if additional testimony is taken. Usually it is sufficient to 9

14 include a witness statement or affidavit with your written response. e. Do not Disseminate Additional Information at the Hearing. It is impossible for the committee to review additional information during the hearing or right before the hearing. Initially, try to include everything relevant in your response. If something is left out, and the committee needs the information, hopefully it will be in the file you bring to the hearing. If not, the hearing can be continued until the information is obtained. f. Know and Respond to Your Audience. The grievance committee acts as a judge. Dress and comport yourself as you would for court. Remember that one-third of the panel is comprised of public members. As a general rule, they do not react favorably to a Respondent attorney who is rude, obnoxious, arrogant, or dismissive in their responses to the committee. Additionally, it is unlikely that all the attorneys on the panel will have experience in the area of law involved in your case. If there are substantive or procedural issues involved in the complaint, be prepared to explain in terms that all of the committee members are likely to understand. g. Answer the Question Propounded to You and Only the Question Propounded to You. Under normal circumstances, the committee will have thoroughly reviewed the materials provided by both the Complainant and Respondent attorney before the hearing, and have a good idea of the factual basis for the complaint. Usually, questions are asked to clarify an issue. Occasionally, the panel chair will ask for some narrative so that each party will feel that they have been heard. Resist the temptation if you are not specifically asked a question that requires a narrative response. Resist the temptation to add information that was not requested in the question. Do not avoid answering a direct question. You will look like you are hiding something. h. Know When to Shut Up. If the panel does not ask any questions, tells you that they do not need to hear anything further, or appears to be cutting you off, it usually means they have already determined that the complaint has no merit. Resist the temptation to speak. Thank the panel for their time and service, and walk rapidly to your car. The author can vividly recall at least two occasions when an attorney treated the grievance committee as a confessional and made admissions of professional misconduct that had not been included in the complaint. i. Control Your Emotions, Particuarly Anger. Enough said, but can never be said enough times. lv. CONCLUSION The Chief Disciplinary Counsel s Office of the State Bar of Texas can be of enormous assistance in answering questions about ethical dilemmas or concerns that are not case specific. The telephone number for the Ethics Hotline is A staff attorney will give you an advisory opinion on ethical issues. Also, many local bar associations have ethics committees who offer the same service. A written ethics opinion may be requested by writing the Supreme Court s Professional Ethics Committee, c/o State Bar of Texas, P. O. Box 12487, Austin, Texas, A copy of all reported Ethics Opinions can be obtained from the Texas Center for Legal Ethics and Professionalism, or at Remember to use these resources if the need arises. The author wishes to thank and extend her appreciation to the following authors from whom massive amounts of this article has been utilized: Neff, Marilea & Thursby, Nancy, Practical Tips on the Attorney Grievance Process, State Bar of Texas (2001) Koning, Paul, Save Younself Some Grief During A Grievance Hearing - Be On Time, Be Prepared, and Check Your Attitude at the Door, Texas Lawyer (July 24, 2000) Larsen, Paula, Ethics of Starting Your Own Firm, 10

15 from Moving Up or Moving Out: The Economics of Making Partner or Opening Your Own Law Firm; Dallas Association of Young Lawyers (1995) McCurley, Mike, Overview of the Texas Disciplinary Rules of Professional Conduct, from The Complete Lawyer: Mastering Your Law Practice and Your Life (1993) Young, Steve, Texas Disciplinary Rules of Professional Conduct, from The Hearing You Never Want to Attend and The Suit You Don t Want Filed - A Seminar on Avoiding Professional Misconduct and Legal Malpractice; State Bar of Texas (1993) 11

16 Appendix A STATE BAR OF TEXAS Office of the Chief Disciplinary Counsel Dear (Attorney) : The State Bar of Texas received a grievance filed against you. The Office of the Chief Disciplinary Counsel reviewed the matter and determined that the information provided alleged professional misconduct on your part. Pursuant to the Rules, the matter has been classified as a Complaint, and an investigatory hearing will be scheduled to review this matter. Pursuant to Rule 2.09 of the Texas Rules of Disciplinary Procedure, you must furnish to this office a written response to the allegation within thirty (30) days of receipt of this letter. Your response should reply to the allegation contained in the Complaint, admit or deny each allegation, provide any material information or documentation, and explain why you think you have not committed professional misconduct. A general denial does not assist the panel in understanding your position, if any. It is solely within the discretion of the panel chair whether to consider any materials submitted by you subsequent to your deadline to respond to this notice. Venue before the investigatory panel is governed by Rule 2.10 of the Texas Rules of Disciplinary Procedure. This Complaint alleged misconduct, in whole or in part, in County; therefore, an investigatory hearing will be held by a panel of the District, Grievance Committee to determine Just Cause in this matter. Any requests for transfer of venue are waived if not filed within twenty (20) days after your receipt of this notice. Please be advised that the Chief Disciplinary Counsel may provide appropriate information, including the response to this Complaint, to law enforcement agencies, and the Supreme Court s Unauthorized Practice of Law Committee and its subcommittees. You are also hereby notified that, pursuant to Rules 8.01(b) and 8.04(a)(8) of the Texas Disciplinary Rules of Professional Conduct, failure to timely furnish a response, failure to furnish information requested by the Chief Disciplinary Counsel or a grievance committee, or the failure to assert grounds for failure to do so constitutes professional misconduct for which you can be disciplined upon the finding, at the hearing on the above-referenced matter, that there is Just Cause to believe you committed professional misconduct by failing to timely respond to the enclosed complaint. In the event you were administratively suspended at any time during the events described in the Complaint, the issue of your practicing while administrative suspended may be considered at the hearing of this Complaint. 12

17 THIS IS THE ONLY NOTICE YOU WILL RECEIVE REQUESTING A RESPONSE TO THESE ALLEGATIONS. If an attorney represents you in this matter, we must be notified in writing immediately. You have the right to appeal the classification of this Complaint to the Board of Disciplinary Appeals. An appeal must be submitted directly to the Board in writing, within thirty (30) days of receipt of this letter. Pursuant to Rule 2.09 of this letter. Pursuant to Rule 2.09 of the Texas Rules of Disciplinary Procedure, all proceeding shall immediately be dismissed if the determination of the Chief Disciplinary Counsel s Office is reversed and it is held that the enclosed allegations as stated do not constitute a Complaint. The pendency of an appeal does not stay the investigation and determination of Just Cause. Pursuant to Rule 2.15 of the Texas Rules of Disciplinary Procedure, all information brought to the attention of the investigatory panel must remain confidential and may not be disclosed to any person or entity (except the Chief Disciplinary Counsel) unless disclosure is ordered by the Court. It is not a breach of confidentiality to consult with an attorney or to interview witnesses. Sincerely, 13

18 Appendix B THE BOARD OF DISCIPLINARY APPEALS APPOINTED BY THE SUPREME COURT OF TEXAS RE: Mail or fax this form within 30 days to: Board of Disciplinary Appeals P. O. Box Austin, Texas FAX NO: Sign this form below. Do not send any information to the Board. We will obtain a copy of the complaint from the State Bar of Texas. You will usually receive a decision from the Board in 3 to 4 weeks. Thank you for participating in this process. I wish to appeal the screening decision for the above matter to the Board of Disciplinary Appeals. Date: (Signature) (Printed Name) Check one: Complainant Respondent: 14

19 Appendix C NOTICE TO CLIENTS The State Bar of Texas investigates and prosecutes professional misconduct committed by Texas Attorneys. Although not every complaint against or dispute with a lawyer involves professional misconduct, the State Bar s Office of the Chief Disciplinary Counsel will provide you with information about how to file a complaint. Please call toll-free for more information. 15