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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.•

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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. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  2. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  3. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  4. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  5. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

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