Responding to a Grievance, Part 1: What is a Grievance?
March 2, 2017
In this 3-part discussion, we explore grievances and how to respond to them. In Part 1, we explain what grievances are and how they come to be:
Simply put, a grievance is a complaint against a lawyer. It may involve a complaint of unethical conduct, but frequently it may also be the result of poor communications, poor billing, or poor management practices, (Ohio State Bar Association, How to File a Complaint).
Disciplinary regulation, often invoked by grievances against lawyers or judges, is specifically recognized in the Ohio Constitution Article IV §2(B)(1)(g). Twenty years ago the annual number of grievances against Ohio lawyers was described as “staggering” at 4,399. Current numbers have been reduced, but the complexity of some has been enhanced.
A grievance that raises disciplinary issues very often is followed by an investigation and then a prosecution resulting in sanctions against the lawyer. The Supreme Court has consistently described disciplinary proceedings as neither civil nor criminal. Rather, they are invoked to protect the public from misconduct by those licensed to practice law, to safeguard the integrity of the courts, and to a lesser extent properly enhance the public image of the profession. The disciplinary procedures initiated by the grievance are to be construed liberally for the protection of the public, the courts and the legal profession, and disciplinary matters are not subject to general statutes of limitation.
Grievances are filed with either the Disciplinary Counsel of the Supreme Court of Ohio (ODC) or one of 32 certified grievance committees (CGC). Then they are given an initial review, which is followed by a decision on whether to open a file on the grievance. Ohio has a unique system for exercising jurisdiction over grievances. On one hand, the Office of Disciplinary Counsel investigates allegations of misconduct, as well as allegations of mental illness of judges or attorneys, and may initiate complaints as a result of its investigations. Additionally, it has state-wide jurisdiction. On the other hand, certified grievance committees have the same functions, but a jurisdiction more geographically limited than ODC.
I know of no specific requirement stating that a grievance must be made in written form. Nonetheless, the investigatory bodies of ODC and CGCs require, as a matter of policy, a form that is filed in writing. As noted above, the filing of such a grievance commences an investigation.
Civil actions as a result of filing a grievance, e.g., defamation, abuse of process, etc. have been eliminated by the Ohio Supreme Court in the case of Hecht v. Levin, 66 Ohio State 3d 58 (1993). The Court’s rationale in that case was to promote the free flow of information in the disciplinary process and its quest to determine whether there exists probable cause.
The ODC and CGC can also double-up on a respondent in the sense that the committee may request assistance from ODC on the basis of complex and serious issues raised by the grievant or the investigation. In that circumstance, ODC will investigate the matter and report the results to the committee that requested the assistance.
Part 2 will look at grievance investigations and their timeframes.