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Bell/Gaerte: 3 things to know about responding to disciplinary grievances

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Bell Gaerte 3 thingsAccording to the Indiana Supreme Court’s Annual Report, 1,474 requests for investigation were submitted to the Supreme Court Disciplinary Commission by the public and 47 grievances were initiated by the commission between July 1, 2012, and June 30, 2013. While this may seem like a lot, the good news is that only 52 of these 1,521 grievances were reduced to formal charges in verified complaints.

These numbers seem to show that at some point, you may have the wonderful opportunity to respond to a disciplinary grievance. With that in mind, here are three things to know about responding to a disciplinary commission grievance:

1. Calm down and take your time

I realize this is easier said than done. As much as you will want to get this pleasurable experience over with as soon as possible, you also want to make certain that you are not making your situation worse. Generally speaking, it is common for the commission to grant at least one extension of time for a lawyer to respond to the grievance. Accuracy in your response, not speed, will be the commission’s and your goal.

Several attorneys have been prosecuted for violating Rule 8.1(a) of the Indiana Rules of Professional Conduct. This rule makes it a violation to knowingly issue a false statement of material fact to the commission in a grievance response. Take the time to investigate the allegation thoroughly and draft a deliberate response. Arguably, some of these attorneys may have avoided this charge if they had taken their time to respond to the grievance, acted more deliberately and written more accurately.

After you have paused to review your file thoroughly, take the grievance seriously and respond to it professionally. Don’t do what one lawyer did when he was accused of having a sexual relationship with his client. In his grievance response, he characterized the allegations as “nothing more than the raving of a lazy, promiscuous, greedy, psychotic b*tch.” Matter of E.G., 674 N.E.2d 551, 553 (Ind. 1996). This comment made it to the published decision and many respected commentators have speculated that this response was a “first draft” and that had the respondent taken more time to respond, he may have deleted this sentence.

2. Actually answer the grievance

Given that the disciplinary commission generally grants at least one extension of time to respond to a grievance, it may be surprising to learn that many attorneys do not respond to the grievances at all. It seems obvious, but apparently it bears advising that grievances don’t just go away and the Supreme Court Disciplinary Commission isn’t just going to close a file without a response from the attorney. The annual report cited above noted that 50 Petitions to Show Cause for Noncooperation were filed in the reported year. Several of these petitions resulted in what is called “Noncooperation Suspensions” and 11 of these suspensions became “Indefinite.”

3. Don’t attempt to limit your exposure

You may be dealing with an unhappy client right now and feel that a grievance is inevitable. If you find yourself in this situation, resist the temptation to obtain a promise from your client not to file a grievance. Such attempts in and of themselves subject you to discipline. Obtaining such a promise has been deemed by the Indiana Supreme Court as an attempt to obstruct the disciplinary process and a violation of the Indiana Rule of Professional Conduct 8.4(d). See Matter of C.B., 615 N.E.2d 106, 108 (Ind. 1993).

Most of you do not have “Respond to a Disciplinary Grievance” on your bucket list. Hopefully, you will never have an opportunity to utilize any information in this article. But if you have to respond to a disciplinary grievance from the commission, answer the grievance timely, deliberately and accurately. Doing so will increase the chances that the informal investigation will not result in a formal charge. As the old saying goes, “an ounce of prevention is worth a pound of cure.” This is especially true in this setting.•

__________

James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at jbell@bgdlegal.com or mgaerte@bgdlegal.com. The opinions expressed are those of the authors.

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  1. My mother got temporary guardianship of my children in 2012. my husband and I got divorced 2015 the judge ordered me to have full custody of all my children. Does this mean the temporary guardianship is over? I'm confused because my divorce papers say I have custody and he gets visits and i get to claim the kids every year on my taxes. So just wondered since I have in black and white that I have custody if I can go get my kids from my moms and not go to jail?

  2. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  3. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  4. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  5. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

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