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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. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  2. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  3. Low energy. Next!

  4. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  5. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

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