Guidance for Handling A SBOT Grievance

TEXAS LAWYERS' INSURANCE EXCHANGE

GUIDANCE FOR HANDLING A SBOT GRIEVANCE

By Brad L. Sklencar

Over 9,000 “writings” or grievances¹ are filed annually with the State Bar of Texas complaining of attorney misconduct. Last year, over 9,750 grievances were filed², of which 6,720 were classified as Inquiries (writings which, even if true, fail to allege professional misconduct or disability) and 3,033 were classified as Complaints (writings alleging professional misconduct or disability). With numbers like these, it is easy to imagine opening a letter like this from the office of the State Bar Chief Disciplinary Counsel (“CDC”): “The State Bar of Texas has received a complaint alleging professional misconduct on your part.” If you are one of the unlucky ones, DON’T PANIC. First, decide realistically whether you can handle the matter yourself; if not, retain a lawyer to represent you. If you do plan to handle the matter yourself, use this article for guidance.

You will have 30 days after receiving the Complaint notice letter to file a response with the District Grievance Committee. TRDP 2.09. Send your response by certified mail to the CDC’s office and the Regional Counsel’s office. The response should address clearly each of the allegations of professional misconduct made by the Complainant, and enclose all relevant documentation to support your actions, inactions, and/or defenses. A good practice is to address each and every allegation of professional misconduct with reference to your responsibilities under the Texas Disciplinary Rules of Professional Conduct (“TDRPC”)³. Unfortunately, the Complaint itself may be in handwritten form if made by the Complainant, and will not provide much help identifying which professional conduct rule was violated. Such specificity is not required by the Texas Rules of Disciplinary Procedure.

If you do not think the Complaint alleges any “professional misconduct,”⁴ you have 30 days to appeal the classification of the grievance as a Complaint to the Board of Disciplinary Appeals (“BODA”). TRDP 2.09. At this stage, BODA’s review is limited either to affirming or reversing the CDC’s determination that the grievance constitutes a Complaint and not an Inquiry. TRDP 7.08(C.). An appeal to BODA does not alleviate your need to file a response, and will not automatically stay any further investigation or action by an investigatory panel. Note that the failure to file a response or provide other information as required by the TRDP is in itself misconduct. TDRPC 8.04(a)(8). If BODA reverses the CDC’s determination and holds that the grievance does not constitute a Complaint, the proceedings will be dismissed.

Next, the Complaint will be assigned to an investigatory panel of the Grievance Committee in the District where the conduct occurred, in whole or in part, for a hearing and determination of whether there is “just cause” to believe you committed misconduct. Each investigatory panel is composed of at least two attorney members for each public member. TRDP 2.07. The CDC office will notify you of the names and addresses of the panel members assigned to the Complaint. TRDP 2.06. In practice, the notice may vary in form for each Region of the CDC’s office. You will have 10 days after receipt of the panel member notice (or after discovery of grounds in the exercise of reasonable diligence), to make written objection to disqualify any member of the assigned panel. Id.

An investigatory hearing is usually scheduled by the CDC within 30 days after receipt of your response. The investigatory panel may convene with or without you or the Complainant, but both you and the Complainant will be invited to appear before the panel at least once, and generally allowed to present your case. The investigatory panel has discretion to subpoena documents and witnesses and receive such evidence as it finds appropriate. TRDP 2.11, and 15.01. Your failure to appear at the investigatory panel hearing does not abate it or prevent them from proceeding without you. TRDP 2.11. Typically, cross-examination is not allowed, but the panel may permit you to submit questions for them to ask the Complainant. Always ask for the hearing to be recorded, which is your right; you may need the transcript for further proceedings or district court litigation. Id.

After gathering sufficient evidence, the investigatory panel members vote on “Just Cause,” which finding requires a panel majority. “Just Cause” may be found if a reasonably intelligent and prudent person believes, upon reasonable inquiry, 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 or probation. TRDP 1.06(P.). If no member of the investigatory panel votes for a “Just Cause” finding, the Complaint will be dismissed. TRDP 2.12. If any member of the first assigned panel votes in favor of “Just Cause,” but a majority vote is not obtained, the Complainant may resubmit the Complaint to a second investigatory panel for a de novo determination of “Just Cause.” If a majority of the second panel also fails to find “Just Cause,” the Complaint will be dismissed without prejudice; it may be refiled by the Complainant within 30 days, with additional evidence not previously presented. Id.

If a “Just Cause” finding is made, then with your consent the investigatory panel may impose any sanction available under the TRDP, except disbarment. Typically, the Regional Counsel of the CDC’s office will send a letterproposing an agreed result and sanction. This is your opportunity to negotiate with the Regional Counsel for an agreed sanction. If an agreement isreached, a written judgment will be sent to you, which must be signed and returned within 20 days from receipt of the judgment. If a negotiated result is not reached, or if you do not return the judgment timely, you will be notified by certified mail that the investigatory panel was unable to negotiate a sanction and the matter will proceed. Id.

Upon receiving notice of a just cause finding and the inability to negotiate a sanction, you may elect to have the complaint heard de novo in a district court of proper venue (with or without a jury), instead of an evidentiary panel of the District Grievance Committee. TRDP 2.14. This election must be submitted in writing no later than 15 days after receipt of the TRDP 2.13 written notification. Id. If you have been representing yourself, reconsider getting appropriate counsel at this point. Failure to make a timely election results in your case being transferred to an evidentiary panel for further proceedings. Id.

Specific rules govern both the evidentiary panel hearing and the de novo trial in district court. Your choice should be made carefully based upon the nature of the Complaint and possible sanctions to be imposed. For a variety of reasons, one may be more advantageous than the other. In making your election, or if you are negotiating an agreement, consider that the use of private reprimands has decreased by 22% over the past five years. If you proceed in an evidentiary panel proceeding, a private reprimand is no longer available. TRDP 2.17. If you elect district court, an active judge will be appointed, and if misconduct is found, the judge will decide in a separate public hearing which sanction would be appropriate. TRDP3.02, and 3.10.

Of the 3,033 grievances classified in Texas as Complaints from May 1, 1999 to April 30, 2000, investigatory panels acted on 2,388 of them, finding “Just Cause” in only 535. Of those cases, 521 resulted in imposition of sanctions or rehabilitation. Investigatory panels negotiated 227 cases to agreed sanctions, while the Commission for Lawyer Discipline obtained sanctions in 294 cases. Nearly 200 cases resulted either in disbarment, resignation, or suspension. This means just under 2,500 cases were dismissed at early stages of the disciplinary process, in evidentiary hearings or in district court trials. If you find yourself at the wrong end of a grievance, the effort put into your response may repay itself a thousand-fold, if the Complaint is dismissed in the early stages. Of course, it is always best to avoid trouble in the first place by paying due attention to your clients and their cases. The stakes are high, so read the rules carefully: respond fully and with proper documentation, and you just might be fortunate enough to get your case dismissed.

TLIE greatly appreciates the author’s contribution of this article. Mr. Sklencar may be contacted at Lotz & Associates, 700 N. St. Mary’s, Suite 1150, San Antonio, Texas 78205-3510. He is certified by the Texas Board of Legal Specialization in Labor and Employment Law and his practice includes attorney malpractice matters and disciplinary defense.

Texas Lawyers’ Insurance Exchange Legal Malpractice Advisory Issue No. 2, 2001

¹The Texas Rules of Disciplinary Procedure are found in Tex. Govt. Code Ann., State Bar Rules, Title 2, Subt. G App. Art. 10 §1 et seq.; Rule 2.09 provides that “every written statement, from whatever source,” shall be examined to determine if it constitutes an Inquiry or a Complaint. I will refer to these “writings” as grievances.

²Numerical data is obtained from the “2000 Attorney Disciplinary and Disability System Report,” released by the Commission for Lawyer Discipline.

³Tex. Govt. Code Ann., State Bar Rules, Title 2, Subt. G App. Art. 10 §1 et seq.

⁴TRDP 1.06 (Q.)