What to Do if Disciplinary Counsel Comes Knocking

I frequently speak at CLE events on the topics of legal ethics and professionalism. Almost every time I speak, an audience member will ask, “What should I do if I get a letter of inquiry from Disciplinary Counsel telling me that someone has filed a grievance against me?”

The answer is simple, at least in principle: cooperate.

Ohio Rule of Professional Conduct 8.1(b) provides that, in connection with a disciplinary matter, “a lawyer shall not . . . in response to a demand for information from an admissions or disciplinary authority, fail to disclose a material fact or knowingly fail to respond.”

Further, under the Ohio Rules for Government of the Bar, the Board of Professional Conduct is required to consider all relevant factors in determining the appropriate sanction for a violation of the Rules of Professional Conduct. Specifically, Gov. Bar Rule V (Section 13) provides aggravating and mitigating factors that the Board may consider in determining the appropriate severity of a sanction. “A lack of cooperation in the disciplinary process” is among the aggravating factors, and “Full and free disclosure to the Board or cooperative attitude toward proceedings” is among the mitigating factors. Ohio Supreme Court case law confirms that the attorney’s approach to the disciplinary proceeding itself is an independent basis for imposing sanctions. A recent case provides a cautionary tale.

In Disciplinary Counsel v. Bunstine [http://www.supremecourt.ohio.gov/ROD/docs/pdf/0/2015/2015-Ohio-3729.pdf], Disciplinary Counsel alleged in a two-count complaint that Edward Bunstine of Chillicothe had violated the Rules of Professional Conduct. In the first count, ODC alleged that Bunstine violated ethics rules while representing a client in a criminal matter. In the second count, ODC charged Bunstine (under both Rule 8.1 and Gov. Bar. Rule V) with failing to cooperate in the ensuing disciplinary investigation.

Although the panel recommended that Bunstine be suspended for two years, the full Board recommended that Bunstine be indefinitely suspended from the practice (Bunstine had been disciplined previously for violations of the Rules of Professional Conduct).

The Ohio Supreme Court disagreed with both the panel and the Board. The Court found that Disciplinary Counsel had not proved by clear and convincing evidence that Bunstine had violated the ethics rules, because there was insufficient evidence that Bunstine had an attorney-client relationship with the criminal defendant. Accordingly, the court found no violations of the Rules related to Bunstine’s alleged representation of the defendant, and dismissed count one of the Complaint.

However, even though the Court absolved Bunstine of the underlying charges, it imposed a six month suspension of Bunstine’s law license because Bunstine had not fully cooperated with the disciplinary investigation.

Although Bunstine responded to ODC’s initial letter of inquiry about a grievance filed by a Ross County prosecutor, he failed to respond to ODC’s second and third letters of inquiry, “because he didn’t believe it was relevant and didn’t want to waste [his] time.” (internal quotation marks omitted). A majority of the Court found that Bunstine’s failure to respond to these letters violated Rule 8.1 and Gov. Bar Rule V. Interestingly, Justice O’Neill dissented on the grounds that public reprimand was the more appropriate sanction, and Justice Lanzinger dissented on the grounds that Bunstine should be indefinitely suspended.

The Justices may not have agreed on the severity of the sanction, but all agreed that a sanction was warranted solely for Bunstine’s failure to cooperate in a disciplinary action.

The Bunstine case makes clear that lawyers have to answer letters of inquiry, respond to disciplinary counsel’s requests for information, and other reasonable requests that are a natural part of the disciplinary process, even if they believe the grievance is frivolous or insupportable. The vast majority of grievances against attorneys do not result in discipline. Attorneys would be wise not to increase the risk of discipline simply for failing to cooperate with a disciplinary investigation.

ODC’s two-count complaint against Bunstine is here.

The Ohio Supreme Court’s decision suspending Bunstine is here.