Tips for Drafting a Response to Your First Grievance (September 2013)
Material for Charleston County Family Court bar CLE
As everyone in family law knows, grievances are an expected but unwelcome part of the practice. Here’s my advice for handling your first grievance.
1. Don’t ignore it
It’s human nature to avoid the unpleasant and responding to a grievance is unpleasant. But ignoring the Office of Disciplinary Counsel (ODC) can lead to further trouble. Not convinced? Search “Treacy” on any collection of Supreme Court disciplinary opinions. In the Matter of Patrick E. Treacy, 77 S.C. 514, 290 S.E.2d 240 (1982) may be the most cited disciplinary opinion in all of South Carolina law. It stands for the proposition that ignoring a letter from ODC is itself a violation of the Rules of Professional Conduct.
Under the current Rules for Lawyer Disciplinary Enforcement (South Carolina Appellate Court Rule 413) a lawyer has fifteen days from receipt of a “notice of investigation” from the ODC to file a written response. Rule 19(b), Rules for Lawyer Disciplinary Enforcement. Failure to respond timely to the notice of investigation results in a “Treacy letter” being sent to the attorney. On request, the ODC will grant a reasonable extension to respond. However, ignoring that letter from the ODC leads to more trouble.
2. Read the letter from ODC and read the applicable rule of professional conduct
When I first started practicing–and had to carry my laptop to court on a forklift–the ODC would simply send you the letter from the complainant and ask you to respond. These complaints tended to be long-winded and often it was hard to know what misconduct one was accused of. The temptation was to write an even longer response that addressed every allegation, which often merely provided more ammunition for the complainant.
The new procedure is for the ODC to include in its cover letter the exact rule that the attorney is alleged to have violated. Read the letter and read the rule. Your response only needs to address the claim that you violated that particular rule.
3. Don’t spew
In film noir, the police interrogate the bad guy by shining a bright light at his face, whereupon the criminal is so intimidated he confesses. There’s something about being called dishonest or incompetent that causes most humans to over-reveal. Lawyers, despite our training, are not immune from this. Avoid the temptation to spew or get defensive. Merely respond to the allegations in the complaint and discuss your conduct in light of the rule of professional conduct at issue.
4. Don’t lie
This should be obvious. It’s the easiest way to turn a bad situation into a really bad situation. Don’t believe me? Read In re Lafaye, 399 S.C. 12, 731 S.E.2d 282 (2012); In re Steinmeyer, 395 S.C. 296, 718 S.E.2d 426 (2011) or In re Dickey, 395 S.C. 336, 718 S.E.2d 739 (2011).
5. Admit your mistakes
We’re all human and we all make mistakes. Few such mistakes rise to the level of a breach of the rules of professional conduct and even fewer result in public discipline. One is likely to achieve a better result in responding to a grievance if one admits one’s errors, rather than merely defends one’s actions.
The lone grievance filed against me that did not get dismissed involved behavior for which I was deeply ashamed (if a little bit proud). When responding to the grievance I acknowledged my mistake and tried to explain my behavior without justifying it. This response resulted in a letter of caution. Given the magnitude of my error, I would have accepted an admonition and was thankful the ODC didn’t recommend a public reprimand. Had I attempted to justify my misbehavior, I believe ODC’s recommended sanction would have been stronger.
The most recent grievance against me stemmed, in part, due to the complainant being incarcerated for a day when I forgot to obtain recision of a bench warrant I had sought against her after she came into compliance with the order that resulted in the bench warrant. Rather than pretend my (in)actions were what I intended, I acknowledged that I’d wished I’d remembered to get the bench warrant rescinded–it would have been hard to deny this given that I’d written the complainant a letter of apology soon after her release. I further noted that this complainant failed to remind me to rescind the bench warrant when she came into compliance, that it was her responsibility to obtain rescission of the bench warrant, that I took prompt steps to get the bench warrant rescinded as soon as I was notified of her arrest, and that for a six month period she was out of compliance with the bench warrant open and thus could have rightly been incarcerated previously. This was my attempt to show that though my behavior wasn’t perfect, it did not rise to the level of “engag[ing in conduct that is prejudicial to the administration of justice.” Rule 8.4(e), South Carolina Rules of Professional Conduct. The complaint was dismissed shortly after the ODC received my response.
6. Support your response with records from your file
If you have documents that support your response, include them as exhibits. This is the reason no client ever walks away with my file without my first making a copy. The first grievance I received came the day after the client showed up demanding her file. I told her she could have it after I made a copy. My response contained over 30 exhibits from the file in support–exhibits I would not have had access to if my client had the only copy of my file. That grievance was dismissed after the ODC reviewed my letter.
7. Put your response away for 24 hours
Your initial response is unlikely to be calm. After you prepare it put it away for 24 hours (the ODC calls this the “24 hour” rule). Then go back and review it. Make sure the response doesn’t show anger or “rundown” the complainant. Revise as necessary and proceed to the next step.
8. Get a second (or third) set of eyes
The ODC is bound by confidentiality rules in dealing with a grievance; the attorney being grieved is not. Get an attorney you trust to review your response, both to make sure the tone is appropriate and to suggest improvements. And an additional proof reading can only help.
9. Don’t panic
Being accused of professional malfeasance is never pleasant. However the majority get dismissed without any finding of misconduct. For the 2011-12 reporting year (the most recent one for which data is publicly available), 1,735 complaints were resolved. Of these 1,295 were dismissed without any finding, 1,136 of those without an investigative panel even being convened.
Of the 440 that were not dismissed, 246 resolved with an admonition or letter of caution, which means the attorney was found to have engaged in minor misconduct but the finding of misconduct did not become a public record. Only 154, less than 10%, were resolved with public discipline: Public Reprimand, 22; Suspension, 77; Disbarment, 55.
Lots of grievances get filed but most go away and even fewer result in public discipline. Following these rules may be the best hope of getting the grievance dismissed without further trouble.