In the year ending June 30, 2005, the Disciplinary Commission received 1,625 grievances. After screening, 668 grievances were opened for investigation including a demand for a written response. With 15,508 Indiana lawyers in active good-standing, if the grievances had been evenly distributed (which they aren’t), one in every twenty-three lawyers would have been required to respond. Put another way, at that rate, every lawyer will be called upon to respond to about two grievances in a fifty-year career. However, some lawyers receive more than their pro rata share, and some practice areas, such as criminal and domestic relations, are more prone to grievances than others.
Responding to a grievance that has been opened for investigation is mandatory. Failure to answer may result in suspension of the lawyer’s law license. The question remains: What are the do’s and don’ts of responding? Here are ten tips.
Take it seriously. Don’t be flip or cavalier. Budget time to fully attend to the matter. If you value your license, you will approach it as one of your highest priorities.
- Get current. Review Admission and Discipline Rule 23, governing lawyer discipline proceedings. This rule is available in the Indiana Rules of Court (West Publishing 2005), on-line at: Admission and Discipline Rule 23.
- Form. There is no specified form for a response. It need not be verified or under oath. But you still have a duty to be complete and truthful. The response should be signed. Responses submitted through counsel are often signed by counsel only, but the better practice is to have the respondent also sign. There are no captions or case numbers. Deliver your response to the Commission by hand or by some method that documents its receipt. Do not respond by facsimile transmission because it is difficult to read lengthy faxed materials.
- Be on time. A response is due within twenty days of your receipt of the grievance. But an extension may be granted. Requests may be made by telephone call but letters are preferred. If the case has been assigned to a bar association grievance committee, the request for an extension should be directed to the committee chair or the assigned bar investigator and not to the Commission. Extensions of up to thirty days are readily granted for good cause. Additional extensions are granted reluctantly and require a stronger showing. Lengthy or successive extension requests should be supported by detailed reasons and supporting documentation. Honor all deadlines.
- Be complete. A summary denial is not helpful to you or the Commission. Many grievants are uneducated or simply not adept at writing down their thoughts. It is concededly difficult to respond to such a grievance. Be fair in distilling the essence of the grievance and avoid being dismissive simply because it is not elegantly stated. In other words, based upon the background information you have, try your best to fairly understand what the grievant is trying to say and answer those points. If you are still in the dark about some aspects of the grievance, feel free to ask the Commission for further guidance. The focus of a preliminary investigation is primarily on facts, rather than legal merit. You are not foreclosed from addressing the legal merits of a grievance, but you should not do so at the expense of the facts. There is no page limit. Better to err on the side of completeness.
- Verify the facts. Never trust your memory on factual matters. Always pull your file and carefully re-familiarize yourself with it. Do not commit yourself to facts that you are not certain are true. If your assertions are qualified in any way, you should so state and give the reason why. If you need to seek information elsewhere to allow you to fully set forth the pertinent facts, you should do so.
- Documentation. Support your response with appropriate documentation, especially as to factual matters that are highly material or in dispute. Corroborative materials demonstrating that one version is more likely true than another are most helpful. If you don’t have direct knowledge of important facts, your response should direct the Commission to other individuals who possess direct knowledge or include sworn statements from third parties with relevant knowledge about disputed facts.
- Civility. Do not engage in ad hominem attacks or emotional diatribes. Highly emotional responses are not helpful. The fact that the grievant has personal or legal difficulties does not mean he or she does not have a right to diligent and competent representation. Where there are differing versions of material facts, it is desirable to point out factors that might reflect adversely on the credibility of the grievant. Your outrage about a grievance does not contribute to the Commission’s analysis of the merits
- Legal Representation. Consult with an objective advisor. The wisdom of the old adage that the lawyer who represents himself has a fool for a client lies in its insight into the fact that someone who is personally involved in a disputed matter can lose perspective and act out of passion rather than sound judgment. Should every responding lawyer hire counsel? Certainly not. You should carefully think about obtaining counsel every time you are asked to respond to a grievance. If you don’t hire counsel, it should be because you have consciously decided against it, not because you forgot to consider it. The more serious you think a grievance is, the more important it is for you to obtain independent advice. Also, if a matter is not dismissed after the preliminary investigation, revisit the question of seeking representation. The Commission staff welcomes representation, and the fact that a lawyer is represented is never taken as a sign of culpability. Even if you don’t hire counsel, you are well advised to have another lawyer review your response before submitting it.
- Cooperation. Invite further inquiry from the Commission and offer to make additional materials available to assist with the investigation.
- Ultimately, the life of a grievance hangs on its merit, so the responding lawyer can assist the Commission to keep the focus on the merits by being helpful and candid. It is, after all, your professional obligation to do so.