Responding to a Grievance, Part 3: Recommendations for Responding
March 30, 2017
In this 3-part discussion, we explore grievances and how to respond to them. In Part 3, we give step-by-step recommendations for what to do after receiving a grievance:
First, open the envelope containing the grievance and the Letter of Inquiry. A response date is contained in the letter. While it is not an absolute drop-dead date, it should not be ignored on the basis of the scary return address on the envelope.
Read the grievance carefully, as well as any documents that may accompany it.
Expect to have a reaction of strong negative emotions directed toward the grievant, any adverse witnesses, and the Ohio Disciplinary System.
Seriously consider retention of counsel at this time, as sooner is generally better than later. The counsel may provide objectivity, tactical advice, and general attorney experience in investigations.
Contact the Committee’s Bar Counsel or the Assistant Disciplinary Counsel, as the case may be, if you desire an extension. Extensions are liberally granted for periods of weeks or longer. Do not fail to confirm the extension with an e-mail to the lawyer granting the extension.
Remember always that the task of the Committee or ODC is to determine whether there exists probable cause of misconduct, i.e., substantial, credible evidence of misconduct and contravention of the Rules of Professional Conduct or the Code of Judicial Conduct. The respondent’s task is to marshal facts and, if appropriate, documents that factually contravene a position of probable cause.
Do not be shocked or upset if additional information is requested after the first response. This is commonplace in professional responsibility investigations.
Submit a response that is clear, understandable, and streamlined. Very few responses need to be over 3-4 pages in length. As noted above, relevant documents can be included, but DO NOT submit boxes of documents or documents that are not explained in the text of the response.
Understand that an ODC attorney receiving the response has about 125-150 other cases. Therefore, it is a little self-defeating for the respondent to overly inquire or pester the investigating attorney. I recommend letting a period of three or more months to pass before making such an inquiry, and when it is made, it should, of course, be polite and professional.
Other Recommendations for Responding
Duty to Cooperate – Gov. Bar Rule V § (G) provides that the Board, ODC, or officers of a CGC will call upon any attorney or member of the judiciary “to assist in an investigation or testify in a hearing before the Board or a panel, including mediation and ADR resolution procedures, as to any matter that he or she would not be bound to claim privilege as an attorney at law.”
Several cases have found the respondent to not have engaged in misconduct under the Code or rules, but have also found the respondent not to have cooperated in the proceeding under §5(G). Cases have occurred where the respondent, charged with misconduct, has failed to cooperate, and where that failure to cooperate becomes an issue of misconduct, even while all other assertions of misconduct are dismissed.
In conclusion, after all of the rules, procedures, and complexities, it must be noted that the portion of grievances that result in a finding of probable cause and proceed as disciplinary cases before the Board is tiny. For many years it has hovered at a level of 1.5%. I have often stated that there is not another possibility/probability in our legal system that has a 1.5% chance of succeeding. So, Ohio attorneys should wade through the rules and the foregoing with a reasonable assurance that the numbers are with them.