Attorney Discipline: Nowhere to Turn

By William H. Thedinga

"I felt like I had nowhere to turn," Alex Hamilton blurted. "I didn't know what to do. I just froze," he confessed to attorney Dan Warren.

Alex had been referred to Dan Warren by a mutual friend, Jana Schmidt. Jana had heard the panic in Alex's voice as he whispered about the grievance that had been filed against him. Jana knew that Warren was experienced in representing lawyers involved in disciplinary proceedings and she asked Warren to see Alex.

Although upset about the situation, Alex tried to calmly explain the background of the grievance. "I had a bad feeling about the client from the beginning," he hesitated, shifting in his seat. "I did not like the client. I wasn't sure about handling the case, but I took it. It was a messy, difficult divorce. I did a good job," Alex insisted. "It was a frustrating case and it took forever, but the final result was good. At least I thought so.

"At the end of the divorce proceeding, some funds were transferred to my trust account. They were from the sale of jointly owned real estate; and we had an agreement about their disposition. I split the funds according to the agreement and took my fees from my client's share," Alex explained. "I didn't think my client would have a problem with it. But he did. He started calling me about it. I talked to him several times about the bill, but then stopped taking his calls. He eventually filed a grievance with the Board of Attorneys Professional Responsibility."

Warren nodded. He'd heard similar stories.

"The grievance now has been referred to the district professional responsibility committee," Warren said, bringing Alex up to date. "The BAPR staff in Madison did an initial investigation of the grievance and sent the materials from its investigation to the local district committee." Warren held up a piece of paper. "The letter from BAPR to the committee indicates that one of the rule violations being investigated is failure to cooperate with the grievance investigation."

Warren raised a bushy eyebrow. "You apparently did not respond to several letters from BAPR," he admonished.

"I panicked," said Alex, his face reddening. "I had never been involved in a grievance before. I didn't know what to do. I was shocked and hurt - and mad!" Alex's eyes blazed. "I opened the first letter from BAPR, but I didn't open the next letter. I finally told Jana about it and she told me about you."

"Your reaction is not unusual," Warren soothed. "A grievance is a real shock to the system, a kick in the gut. You aren't the first attorney to freeze when the letter from BAPR arrives. One attorney told me that he felt like a deer in a car's headlights and simply couldn't move.

"But," Warren insisted, "even though you are in shock, you must respond to BAPR, and respond promptly. As a friend of mine put it, 'the red confidential stamp on the BAPR envelope means open me first.'

"Look," Warren said, "in a grievance investigation there are two rules: respond promptly and cooperate fully. Failure to respond to and cooperate with the BAPR investigator or the district committee investigator is a serious problem. It is a frustration and irritation to the investigator; and it can result in a separate disciplinary rule violation for failure to cooperate with the investigation. The district committee will want an explanation for your failure to respond to the letters. You don't need this added trouble," Warren advised.

"I know," Alex agreed. "But I just don't understand how the grievance procedure works. Like, what exactly is the district committee?"

"The district committee is made up of local attorneys and laypersons appointed by the State Bar president," Warren explained. "There are 16 district committees statewide; and BAPR refers about 10 percent of grievances to the committees. Grievances are referred to district committees when further factual investigation is necessary and where the input of local attorneys may be helpful," Warren continued, anticipating Alex's questions.

"The local committee investigates grievances in this county and several adjoining counties. The committee members understand the practice of law in this area. The advantages of the committee system are that grievances are investigated and evaluated by your peers and you have the opportunity to speak to the committee in person."

"That's fine," Alex said, "but where's my grievance in the process?"

"The next step with your grievance is to meet with the investigator from the district committee," Warren answered. "The investigator is one of the local attorneys who is a member of the committee. We'll meet with the investigator at her office. She's asked us to bring your file and trust account records.

"The investigator also will meet with the person who filed the grievance," Warren continued. "Then she'll prepare a preliminary written report to the committee. Neither the grievant nor the respondent attorney receive a copy of the preliminary report. The preliminary report can be terribly important in terms of the way the issues are framed for the district committee," Warren impressed. "That's why we want to present the facts and our analysis to the investigator as fully and completely as possible."

As the afternoon sun glinted through his office window, Warren continued his explanation of the district committee's role in investigating grievances against attorneys. He explained that after the preliminary report is prepared, the district committee schedules an investigative meeting at which the committee considers evidence related to the grievance. Both the grievant and the respondent attorney are present at the meeting and each may bring witnesses.

The investigative meeting is not a judicial hearing. The formal rules of evidence do not apply, and a court reporter normally is not used. The committee member who served as investigator usually does most of the questioning of the parties and any witnesses, but all committee members are allowed to ask questions. The parties are not allowed to question each other or the witnesses for each other, except if considered appropriate at the discretion of the person chairing the investigative meeting. All investigative meetings are confidential.

Following the investigative meeting, the committee prepares a final report of its investigation. Usually the committee investigator writes the report. The report is sent to BAPR; and BAPR forwards a copy to both the grievant and the respondent attorney. Both parties may furnish written comments on the committee's report.

The district committee also may make a recommendation to BAPR concerning disposition of the grievance and appropriate discipline. "The committee that I served on," Warren recollected, "always sent along a recommendation with its final report. The recommendation is not a part of the committee's final report and is not sent to the grievant or the respondent attorney.

"The report and the recommendation from the district committee can be very persuasive with BAPR. However, both the factual findings and the recommendation of the committee are advisory only. BAPR makes an independent determination about disposition of the grievance and appropriate discipline," Warren concluded.

"I feel better knowing what I'm facing," Alex said, stretching. "I had no idea what happens when a grievance is filed or referred to a district committee. I'm glad Jana insisted I contact you."

"A lot of attorneys don't understand the grievance process," Warren agreed. "I'm glad you called me, too; because it's so important for the lawyer to contact someone. A lawyer who handles a grievance without outside help is foolish.

"You saw for yourself how a grievance brings out strong reactions in a lawyer - anger, panic, defensiveness, denial - all of which seriously erode a lawyer's objectivity," Warren continued. "Objectivity and perspective are what an outside advisor offers."

"You know, whatever happens here could potentially affect the rest of my career," Alex said, rising from his chair and extending his hand.

"You're right," Warren agreed, shaking Alex's outstretched hand. "I'm glad you called me."

Epilogue

Warren's two rules are critical when responding to a grievance: 1) respond promptly; and 2) cooperate fully. A third rule is equally important: seek outside advice.

A grievance brings out strong reactions in a lawyer that seriously erode a lawyer's objectivity. Advice from someone else is crucial to overcoming the panic and the distortion caused by the emotions that surround a grievance investigation. An outside advisor's objectivity and perspective can be invaluable.

Outside help often is necessary to implement the other two rules. Outside help can give a needed push to respond promptly and to cooperate fully when one's instincts are to do just the opposite. At each stage of a grievance proceeding, an attorney must be as prepared as possible and must present the facts completely. Preparation is much easier with an advisor's help.

As threatening as it may seem, the grievance process is quite informal at the district committee level, and the process is fair and impartial. But it also is a process that takes the Rules of Professional Responsibility seriously and treats rule violations seriously as well.

An attorney involved in a grievance proceeding must understand the seriousness of the process and the challenges involved. If you receive notice of a grievance, contact someone for outside help. Contact someone right away.

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