"ETHICS 2000" PROPOSED RULE CHANGE
Sharren B. Rose
Chairperson, Wisconsin Board of Professional Responsibility
May 29, 1998
ABUSE OF DISCIPLINARY SYSTEM: GRIEVANCES FILED DURING PENDING LITIGATION BY LAWYER (OR ADVERSE PARTY) TO GAIN ADVANTAGE IN LITIGATION
During the pendency of a case, or preliminary to the filing of a case, a lawyer (or adverse party who may be directed by a lawyer) files or threatens to file a grievance against opposing counsel, sometimes meritorious, sometimes spurious or even malicious, in an attempt to gain advantage in the case.
Although, for most attorney conduct, civil sanctions would be available from the trial court hearing the case, the disciplinary system is preferred because complainants and witnesses have absolute immunity under Model Rule 12 (MRDE). If the matter were to be brought before the trial judge, the complaining attorney would be subject to civil sanctions if the matter was spurious or malicious. Hence, the preference for using the disciplinary system, so as to take advantage of the absolute immunity it affords.
Having been brought into the disciplinary system, the respondent lawyer must invest the time, energy, and expense and experience the stress that is involved, whether or not the grievance has merit. The respondent may be required to provide information concerning case strategy and/or information obtained in the course of representing the client in order to respond. The respondent may well be placed into the bind of needing to protect his/her professional reputation and license to the detriment of his/her client. In fact, Model Rule 1.7(b) may be implicated, requiring the respondent to withdraw from the representation, potentially based on allegations that will go nowhere and have been made to remove the lawyer form the case in circumstances where there is no legitimate basis for disqualification.
RECONSIDERATION OF POLICY/RULES/COMMENTS:
POLICY: The policy statement in Rule 12 (MRDE) assumes that complainants should be encouraged to file grievances and not fear any adverse consequences if the grievance is found to be non-meritorious. The policy assumes that only "the individual lawyer may suffer some hardship as the result of the occasional filing of a malicious complaint."
The policy appears to presume that the vast majority of grievances come from clients, lay persons, who may innocently file non-meritorious grievances. (This isn't about that type of grievance.) In fact, in Wisconsin, over the last 15 years, grievances filed by clients have comprised between 49% and 59% of all grievances. However, increasingly, grievances are being filed by other lawyers and adverse parties. Moreover, where the grievance is filed in the context of pending litigation, or preliminary thereto, it is not just the individual lawyer who shoulders the potential harm. That lawyer's CLIENT bears a great deal of the burden: in having his/her lawyer become obliged to re-direct time, energy, focus, and resources; in disclosure of case strategy and information obtained from the representation; in a "tainted" settlement; in having to change lawyers; etc.
In short, a worthy policy goal is having unintended results, harmful to the legal profession and to the public.
Change the Comments to Rule 11 (MRDE), which currently limit the grant of stays by disciplinary authorities to extraordinary circumstances. The Comments, and possibly Rule 11 itself, could be modified to presume that a stay should be granted where the grievant is opposing counsel or an adverse party in pending or contemplated litigation and/or the grievance relates to the pending litigation. The Rule could provide that the disciplinary process would go forward immediately only in extraordinary circumstances.
This change would result in no real harm to the public or the legal profession, because most case-related attorney misconduct can be brought to the attention of the trial court and civil sanctions can be ordered (a lesser standard of proof is required in most jurisdictions.) The only change is that use of the disciplinary process would await the finalization of the pending matter.
In addition, the Comments to Rule 12 (MRDE) and Model Rule 8.3(a) should be changed to provide that lawyers (acting as complainants or witnesses in the disciplinary process) are subject to the Rules of Professional Conduct with respect to the filing of grievances, representations made to disciplinary authorities, etc. This appears to be necessary to stop the misuse of the disciplinary process in the cases filed maliciously.