A PRACTICAL EXPLANATION
OF THE GRIEVANCE PROCESS
INTRODUCTION
The purpose of this section of the website is to briefly explain
the Grievance process including complaints, hearings, and the way
that an actual grievance committee functions. My perspective will
be based on my experience as both a subject of a grievance and as
a participant for six years on a district grievance committee. The
intent of this article is to provide the Texas Practitioner with
an understanding of both the process and the requirements of the
grievance system. Please note that there are two sets of Rules which
must be reviewed to fully understand the system. The Texas Disciplinary
Rules of Professional Conduct (TDRPC) govern the conduct of the
lawyers and the Texas Rules of Disciplinary Procedure (TRDP) outline
the procedures utilized to process grievances.
I. THE GRIEVANCE COMPLAINT
Individuals (usually clients) initiate the grievance process by
filing a grievance with the State Bar of Texas (“SBOT”).
The SBOT forwards the grievance to the office of Chief Disciplinary
Counsel, where it is assigned to an investigator. The investigator
classifies the grievance as an inquiry or as a complaint. The investigator
is required to read the statements contained in the grievance as
if they were true. If the statement contained in the grievance states
a violation of a Texas Disciplinary Rule of Professional Conduct
(“TDRPC”), then it is classified as a complaint. Otherwise
it is dismissed (TRDP 2.09).The investigator provides the respondent
with a copy of the complaint. The respondent is required to respond
within thirty days in writing. It is important to note that an attorney
can appeal the classification of the grievance as a complaint and
in fact receives a form with the complaint that simply must be filled
out and forwarded back to The SBOT Office of Disciplinary Appeals.
Appealing the classification of the grievance does not halt the
proceeding (TRDP 2.09). The SBOT is required to hold a hearing on
any and all grievances classified as complaints. It is an additional
violation of the TDRPC to fail to respond to a complaint, although
SBOT investigators have discretion to grant extensions (TDRPC 8.04).
II. THE INVESTIGATORY PANEL
An investigatory panel of the grievance committee for the county
where the alleged professional misconduct occurred is assigned to
conduct the proceeding (TRDP 2.10). The hearing is to be conducted
within thirty days after receipt of respondents response to the
complaint (TRDP 2.11). The panel is composed of attorney members
and public members. The basic ratio is two attorneys for every public
member and as few as three members of a committee can hold a hearing
if the ratio of two attorneys per one public member is maintained
(TRDP 2.07). Motions can be made to disqualify members of the panel
who would be disqualified if a District Judge under similar circumstances
would also be disqualified (TRDP 2.06).The panel conducts an investigation
to determine whether “just cause” exists to believe
professional misconduct occurred. 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 either has committed an act or acts of professional
misconduct requiring that a Sanction be imposed, or suffers from
a Disability that requires either suspension as an attorney licensed
to practice law in the State of Texas or probation (TRDP 2.11).”The
investigation is conducted similar to a grand jury investigation.
Witnesses may be compelled by subpoena. The rules of evidence do
not apply. There is no cross examination. Failure of either the
respondent or complainant to appear does not halt the proceedings.
A quorum must be present and a majority (if a quorum is present)
is sufficient to conduct business of the panel (TRDP 2.07). If a
unanimous finding of no just cause is voted then the grievance is
dismissed. If a less than unanimous finding of no just causes occurs
the complainant may submit his or her complaint to a second investigatory
panel. If an investigatory panel determines just cause then it may
impose any sanction authorized by the TRDP except disbarment. Additionally
the panel may also impose a referral for rehabilitation (TRDP 2.12).
The consent of the respondent is required for any disciplinary action
imposed by the committee. The proceeding and findings are confidential
unless the respondent accepts a sanction of Public Reprimand. If
the investigatory panel and respondent are unable to negotiate a
sanction or referral to rehabilitation the matter proceeds pursuant
to the Texas Rules of Disciplinary Procedure.
III. POST INVESTIGATORY PANEL PROCEEDINGS
If the complaint is not dismissed, and if the attorney and the
panel do not agree on the resolution of the complaint, then the
matter is automatically assigned to an evidentiary panel of the
grievance committee (TRDP 2.13). The Respondent can elect district
court, rather than the evidentiary panel, by serving Chief Disciplinary
Counsel with a written election notice within fifteen days after
a receipt of notice that an agreement regarding the matter could
not be reached. Respondents' notice is required to be received by
Certified Mail. If Respondent timely elects district court than
the SBOT will file a lawsuit in district court (TRDP 2.14).The district
court proceeding will be a trial de novo with punishment determined
by the district Judge (TRDP 3.09). The evidentiary hearing is held
before members of the grievance committee that did not hear the
case at the prior level (TRDP 2.16).There are significant differences
between trial de novo in district court and the evidentiary hearing.
In district court the pleadings do not have to follow the findings
of the investigatory panel. The pleading are filed with the Supreme
Court of Texas which assigns the case to an active district court
Judge outside of the Respondents' Administrative Judicial Region.
Discovery follows the Texas Rules of Civil Procedure. The SBOT or
Respondent can request a jury, which can only determine issues related
to misconduct. The Judge always determines the sanctions and the
appellate route is through the Court of Appeals within the normal
time deadlines (TRDP 3.03, 3.04, 3.05, 3.06, 3.09).Evidentiary hearings
must follow the basis of the findings of the panel. The rules of
civil procedure and/or evidence do not apply in the same manner
as they would in district court. The Chairman of the panel is required
to admit all evidence necessary for a fair and complete hearing
generally in accord with Texas Rules of Civil Evidence (TRDP 2.16).
The Chairman has discretion and no ruling upon evidence shall be
reversed solely because it fails to strictly comply with the Texas
Rules of Civil Evidence. Both proceedings are public and there are
limitations to certain sanctions. For example, a private reprimand
is not available once the Respondent chooses to utilize the evidentiary
panel or district court (TRDP 2.17).
IV. PRACTICAL OBSERVATIONS AND SUGGESTIONS FOR LAWYERS FACING
THE GRIEVANCE PROCESS
I apologize for the dry tone of the first portion of this article,
but the grievance process is an extremely technical area of the
law that many lawyers will never have to experience. The basic fact
is that 90% of grievances are initiated against criminal law, family
law, and personal injury lawyers. Common sense will tell you that
Insurance Companies rarely file grievances against their defense
counsel. Large Corporations rarely file grievances against their
corporate lawyers. I think they just fire them.The involvement of
public members and the procedure for classifying grievances as complaints
arises from legislation adopted in response to public perception
that the lawyer grievance system was operated as a good old boy
network. The public perception of lawyers is not improving therefore
it is extremely unlikely that any relaxation of the requirements
of the grievance procedure will occur. Please understand that when
you fail to return phone calls; when you fail to keep clients reasonably
informed with regard to their proceedings; when you fail to keep
and provide adequate records regarding disbursement of fees; any
such complaint, from any source, will result in the potential for
a grievance hearing on whether professional misconduct occurred.
V. AVOIDING GRIEVANCES
I have seen a number of lists about the ten most common attorney
errors, which result in grievances. It is absolutely ludicrous,
but every single list that I have ever seen (whether composed by
an attorney protesting the grievance process or an attorney praising
the grievance process) always includes attorney failure to respond
to the grievance committee. It is almost unbelievable but in Texas
many lawyers face grievance committees for the sole offense of failure
to properly respond to grievance committee complaints.Failure to
respond is a violation of the TDRPC (TDRPC 8.04). Every list also
includes the rest of the litany of avoidable mistakes that result
in grievances being filed.
- Failure to return phone calls (TDRPC 1.03a, 1.03b);
- Failure to properly explain settlements to clients (TDRPC 1.04,
1.08f);
- Failure to clarify or even have written fee agreements (TDRPC
1.04);
- Failure to give clients copies of files and papers (TDRPC 1.15);
and
- Trust account violations (TDRPC 1.14).
I have stated this over and over again in the times that I have
discussed the grievance process with other lawyers. You know which
of your clients are most likely to be a problem. You knew it the
day you took their case and you have been unhappy about it every
since. In addition to all of the important things that you must
do, (including returning phone calls, maintaining a trust account,
utilizing written fee agreements, sending copies of important letters
and documentation to clients), make sure that you identify those
client most likely to file grievances and make sure that their files
are maintained properly at your office.
VI. RESPONDING TO GRIEVANCES
If you are unfortunate enough to receive a grievance, relax because
you are not alone. Make sure you read it and treat as a Pleading
and calendar your date for filing a response. Make absolutely sure
that you appeal the classification of the complaint to the SBOT
Board of Disciplinary Appeals (TRDP 7.01-7.12). The form to appeal
classification of the grievance as a complaint arrives with your
copy of the complaint. Frequently investigators for the State Bar
are overworked and miss technical distinctions. For example fee
disputes are regularly misclassified as complaints. Sometimes there
is no attorney/client relationship between the Complainant and the
attorney.
Appeal every classification of a complaint that you ever receive.
Respond to every classification that you ever receive. Prepare evidence
to send with your response such as affidavits from staff members
or other individuals. If there is evidence from court files or judgments
find it and include it with your response. Contact your State Bar
Investigator immediately after you file your response to make sure
that it has been received. Offer to provide additional information.
Make sure that you attend the hearing and behave like you would
before a Judge that you respect.Remember the Grievance Committee
is composed of lawyer and pubic members. They are volunteers. I
recommend deciding whether to retain counsel on a grievance by grievance
basis. There are a number of good lawyers who have worked for the
SBOT or on grievance panels with expertise in defending grievances.
Obviously in a worst case scenario where a panel finds just cause
to believe professional misconduct has occurred always consult and
retain an attorney before any time deadline expires.
VII.CONCLUSION
I have completed six years as a member of the Grievance Committee
and I am now a member of the Professionalism Enhancement Program.
This is a new mechanism that the State Bar has instituted. The PEP
program is designed to give Grievance Committees another tool to
utilize for lawyers who face grievances as a result of lack of knowledge,
disability and/or inexperience. The PEP committee can be utilized
to refer lawyers to a mentoring program or other type of training
program to correct problems that result in grievances. It can be
used in conjunction with or as a substitute for a sanction.
The real solution to understanding the grievance process is by
participating in it. I encourage each and everyone of you to contact
your State Bar Representative and let him or her know that you are
interested in serving on a Grievance Committee or a PEP Committee.
I personally have found it to be a rewarding and enlightening experience.
My interaction with the public members on the committee provided
valuable information with regard to the way that lawyers are perceived
even by those members of the public who participate in the political
and legal process.I have criticisms of the grievance system. I think
it is too easy for grievances to be filed and I frankly think the
subject matter of many grievances is picayune. However it is obviously
better to have a grievance system that is too tight then one that
is too loose. I do not think that there are going to be any substantial
changes in the system in the future. Therefore I again recommend
that all lawyers (particularly those doing criminal defense, family
law, or personal injury law), read the rules; keep your clients
notified of what is going on in their cases; and volunteer to participate
in the system.
There are a number of lawyers who specialize in handling grievances.
There are specific phone numbers available that relate to the grievance
process. I include the following list of toll-free numbers:
- Main office: 1-800-204-2222
- Advertising Review: 1-800-566-4616
- Attorney Occupation Tax Information: 1-800-583-8070
- Barratry Hotline: 1-800-633-6630
- Grievance Information: 1-800-932-1900
- Lawyer Referral Service: 1-800-252-9690
- Lawyers Assistance Program: 1-800-343-8527
- Lawyers Ethics Hotline: 1-800-532-3947
- Texas Board of Legal Specialization: 1-800-204-2222
- Texas Equal Access to Justice: 1-800-252-3401
- Texas Judge's Assistance Program: 1-800-219-6474
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