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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. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  2. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  3. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  4. A high ranking bureaucrat with Ind sup court is heading up an organization celebrating the formal N word!!! She must resign and denounce! http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

  5. ND2019, don't try to confuse the Left with facts. Their ideologies trump facts, trump due process, trump court rules, even trump federal statutes. I hold the proof if interested. Facts matter only to those who are not on an agenda-first mission.

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