Attorney Discipline: Demystifying the Grievance Process

By Gerald C. Sternberg

Editor's Note: Mr. Sternberg expresses his personal views and not those of the BAPR board.

For the great majority of lawyers, the grievance process is one with which they have little contact, but it is a process that strikes fear in the hearts of almost all lawyers. This article aims to demystify the grievance process; and the accompanying sidebar provides some pointers on how to avoid grievances.

Roadmap of a grievance

The Board of Attorneys Professional Responsibility (BAPR) is an arm of the Wisconsin Supreme Court. BAPR investigates and, if necessary, prosecutes attorney discipline and medical incapacity proceedings before the court without regard to how these matters are brought to its attention. ¹

The mandate is intentionally broad so that regardless of how a matter is brought to its attention - whether a client or an adversary complains, a lawyer is convicted of a crime that may bear on the lawyer's fitness or a court sends a decision to BAPR - the administrator can investigate the facts in an impartial, dispassionate manner, without regard to the lawyer's status or reputation in the legal profession. All lawyers are treated the same, whether they are sole practitioners or members of a large or medium-sized firm.

A grievance may potentially bring negative consequences to a lawyer's license and livelihood; however, the proportion of grievances that result in disciplinary action is small. BAPR's caseload has averaged between 1,300 and 1,400 grievances during each of the last several years. After investigation, in most years only about 100 lawyers have been disciplined, including lawyers privately reprimanded.

Given that in most grievance situations lawyers have not been disciplined, and that a grievance is merely an accusation and carries with it no presumption of any wrongdoing, the filing of a grievance should be viewed as a serious, but not devastating experience. While anyone can file a grievance, at least half are filed by clients.

BAPR's staff, which is located in two offices in Madison and Milwaukee, consists of lawyers, investigators and legal secretaries. The investigators, most of whom are lawyers, screen each grievance to ascertain whether it raises an issue of possible misconduct. Twenty to 25 percent of matters received by BAPR fall outside the Rules of Professional Conduct for Attorneys and are not investigated. Examples of such grievances are fee disputes that do not raise an issue of an unreasonable or clearly excessive fee; civil disputes between a lawyer and others, such as court reporters; and allegations that raise purely malpractice, not misconduct, issues.

Usually, the other 75 to 80 percent of grievances received raise issues of possible misconduct under the Rules. BAPR's first step in investigating possible misconduct is a letter to the subject lawyer. While not intended, that first letter historically has caused the heart palpitations and anxiety associated with the grievance process. The letter has two functions: 1) to notify the lawyer that a grievance has been filed; and 2) to obtain a clear, thorough response from the lawyer. Pursuant to SCR 22.07(2), the lawyer's response must be filed within 20 days of service of BAPR's letter.

The lawyer should view the response to the grievance as part of the duty to cooperate in a system of self-regulation. Failure to respond timely, or failure to respond fully or fairly, is grounds for a separate finding of misconduct, whether or not the underlying grievance has any merit. Given the high percentage of dismissed grievances each year, it is surprising that some lawyers do not cooperate or answer with less than full candor. If a response by the lawyer "is in careless disregard of the truth of the information ... provided, the lawyer has violated SCR 22.07(2). ² Care in responding to a grievance is essential to the truth-seeking process and is in everyone's best interest.

The response does not need to be on a particular form. However, the response should directly answer the complainant's allegations in an objective manner, setting forth the relevant facts, and wherever possible, providing substantiating or corroborative information or evidence. For example, if the complainant asserts that the lawyer has not communicated during the representation and that assertion is easily rebutted by letters from the lawyer, those letters should be included as exhibits to the response. In responding to a client grievance, the lawyer may reveal information relating to the representation that the lawyer reasonably believes is necessary to respond to the grievance, as provided in SCR 20:1.6 as an exception to the rule on confidentiality of client information. Obviously, the exception is limited, and information not necessary to respond to the grievance cannot be revealed.

A subject lawyer should not try to dissuade the complainant from pursuing the grievance. An attempt to influence the complainant to withdraw a grievance or compromise the grievance process can be met with discipline.³

On the positive side, grievances can lead to improved communication or serve as a "wake-up call to alert a lawyer to attend to a task or a representation that may have been neglected. However, lawyers ought to avoid letting matters get to the point where a grievance is filed in the first place, and that is the subject of the accompanying sidebar.

BAPR conducts the investigation in confidence, pursuant to SCR 22.24(1). Whether a lawyer should retain counsel at the investigative stage is a personal decision, but most lawyers do not. If a lawyer is the subject of formal charges by BAPR, or is asked to appear at the BAPR office or a committee interview or meeting, a lawyer should consider hiring counsel, particularly if the subject lawyer regards the matter as potentially resulting in discipline.

BAPR recently developed a new pilot mediation program for use in matters in which less serious misconduct is alleged. The program permits the parties to mediate a dispute as an alternative to an investigation. There are limited situations in which mediation would be appropriate; for example, if a client cannot obtain from the lawyer findings of fact, conclusions of law and a judgment of divorce in a case.

Upon receiving the lawyer's response, BAPR staff determines whether the response has explained the matter in a way that requires dismissal because the grievance has no merit or lacks sufficient evidence to warrant further investigation. About 25 percent of grievances are dismissed at this stage.

If the grievance and the lawyer's response leave remaining areas of inquiry, BAPR staff can further investigate or assign the grievance to a district professional responsibility committee (committee) for further investigation. At this point, staff may handle matters where the investigation can be concluded with a minimal amount of inquiry, or where the time of a full-time investigator should be committed to the project, for example, a trust account audit.

Matters are assigned to committees when it would be beneficial: 1) to have a field investigator meet with the complainant and the lawyer to evaluate facts; 2) to have the expertise of a practitioner in the relevant field of law; 3) to have the perspective of local practitioners; or 4) to ascertain whether conduct that resulted in a finding of frivolousness under section 814.025 of the Wisconsin Statutes also constitutes an ethical violation.

Referring a matter to a committee does not signify that the matter is more serious than otherwise; it simply indicates that this type of grievance can better be handled by field investigators from the district in which the lawyer practices. The committees function under the BAPR administrator's supervision using guidelines to operate with a measure of consistency and uniformity.

At the conclusion of the staff or committee investigation, the BAPR administrator reviews the totality of the information gathered to determine whether he believes there is clear and convincing evidence of misconduct. If the matter is dismissed, the complainant has the right to appeal to the board. Other than such appeals, matters presented to the board are ones for which the administrator is recommending disposition other than dismissal.

The board is composed of 12 persons (eight lawyers and four public members) from across the state and from a variety of practice areas. The board meets approximately every six weeks to consider grievances and decide whether a matter should be dismissed; the lawyer should be cautioned pursuant to SCR 22.09(1); a private or public reprimand should be issued, which can be done only with the lawyer's consent or by court order; or a complaint should be filed seeking suspension or revocation, which only the court can do after an opportunity for a hearing. Figure I illustrates the major reasons for public discipline in fiscal year 1995-96.

Conclusion

The grievance process is straightforward. BAPR, its staff and the 16 professional responsibility committees do a prompt, fair and thorough job of reviewing the approximately 1,400 grievances that are received each year. If an attorney receives a grievance, the best advice is to respond fully and promptly. The attorney will receive the kind of balanced treatment that one expects from an arm of the Wisconsin Supreme Court. The investigation is confidential, and if it results in a dismissal or dismissal with caution, the matter will be expunged within one year.

Endnotes

1 SCR 21.09(1).

2 Disciplinary Proceedings Against Bult, 142 Wis. 2d 885, 889, 419 N.W.2d 245 (1988).

3 Disciplinary Proceedings Against Arrieh,174 Wis. 2d 331, 496 N.W.2d 601 (1993).

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