Facing a Request for Investigation: 10 Tips from the Trenches

Vol. 16 No. 8

By

Donald D. Campbell is with Collins Einhorn Farrell Ulanoff, PC in Southfield, Michigan, where he handles professional liability matters.

In 2012 approximately 200,000 requests for investigations will be filed with grievance authorities nationally across the 50 states, the District of Columbia, and the federal courts. Most grievances are filed by clients or former clients. But increasingly lawyers’ opposing parties, opposing counsel, and even witnesses or other persons who feel slighted or disrespected are requesting investigations. It has also become more common for grievance authorities to request investigations on their own when they come across information via media reports or even judicial opinions.

These simple tips will help guide you in responding to a request for investigation.


Five Dos


1. Open the Letter and Respond

A surprising number of lawyers who receive a letter from their state grievance authority simply fail to provide any response at all. In virtually every jurisdiction, failing to answer is misconduct and grounds for discipline. At one point, the Michigan Attorney Discipline Board determined that nearly 35 percent of all prosecutions involved some form of failure to answer. The Board noted that “just as every citizen has an unavoidable duty to respond to inquiries to the Internal Revenue Service, no matter how frightening or distasteful the prospect, the members of the bar have an unavoidable duty to answer requests for investigation.” Simply put, open the letter and respond.

2. Get an Extension

Deadlines for responses vary by jurisdiction. Some jurisdictions have rules that make service effective upon mailing. Be careful to determine from when your time for responding begins. An answer should contain a full and fair explanation of the facts and circumstances surrounding the request for investigation. Most grievance authorities grant requests for reasonable extensions as a matter of course. You can usually get an extension by simply calling the authority’s office. Document any extension that is given to you and then honor the new deadline.

3. Mind Your “Ps and Cs” (Privileges and Confidences)

A client’s investigation request almost always waives the client’s attorney-client privilege. But, this does not provide you carte blanche to use a client’s information against him or her. Making an answer that is “full and fair” usually involves reference to a client’s “confidences and secrets” that may be protected under your state’s version of ABA Model Rule 1.6. Many states have adopted the exception under Rule 1.6(b)(5), which is often referred to as the “self-defense exception.” Check your jurisdiction’s Commentary to Rule 1.6 because it may provide that a lawyer may defend himself or herself before formal charges are asserted. This may apply even when a non-client is making the allegation. However, nearly all jurisdictions allow disclosure of only those confidences and secrets that are “necessary” to defend the lawyer. Accordingly, a lawyer must avoid the unprofessional use of client confidences and secrets when answering an investigation request.

4. Attach Relevant Exhibits

Be judicious. You must attach documents that indicate your professionalism in handling the matter, but avoid throwing in the kitchen sink. In a fee dispute, include a copy of the retainer agreement. Also, key pleadings are often helpful exhibits in matters where the grievance’s issue has been litigated before a tribunal. Highlighting the exhibit’s relevant portions makes it easy for the grievance authority to review it. Check your local rules; some agencies require you to provide both an original and a copy when you file your answer. Depending on the rule in your state, if a copy is required, it usually goes to the person who filed the complaint.

5. Seal It with a K.I.S.S.

Follow the acronym for “Keep It Simple, Stupid.” Do not presume that the grievance authority is as knowledgeable as you on the subject matter underlying the grievance. Take time to explain any relevant legal nuances, but avoid lecturing. Like any good writer, give a road map at the outset of your answer and follow it. It is helpful if you provide an introduction and label the different sections of your answer. Answer the allegations directly and succinctly. Be aware whether a copy of what you submit goes to the person who filed the complaint; if so, keep that audience in mind as well.


Five Don’ts


1. Don’t challenge the Grievance Authority’s Right to File a Grievance

Generally speaking, grievance authorities have very extensive powers for requesting investigations. While what a lawyer can be disciplined for is limited, there are almost no limits on that for which a grievance authority can ask a lawyer to account

2. Avoid Ad Hominem Attacks on the Complainant

The temptation is often very great to take out pent-up frustrations with a saucy written assault directed against the person who filed the grievance. This temptation must be avoided. Too often the technique is used as an attempt to distract the grievance authority from its investigation. In addition, as noted above, in some jurisdictions the person who filed the grievance will receive a copy of the answer. Slinging insults may reignite a lost interest in the process or violate your jurisdiction’s civility rules. Even without a specific rule, the better course is to treat all persons with courtesy and respect.

3. Don’t Threaten to Sue a Complainant for Filing a Grievance

In many jurisdictions a person requesting an investigation enjoys absolute immunity from civil suit for statements and communications made to the grievance authority. This usually applies even if the grievance is filed by an opposing party, an ex-partner, an ex-spouse, or even an ex-mother-in-law. The good news is that generally jurisdictions extend that same immunity to lawyers answering the grievance.

4. It Is NOT a “Get Out of Representation Free Card”

When a client files a grievance, you continue as counsel unless you formally withdraw or, if the matter involves litigation, until the court permits you to withdraw. While the nature of a client’s grievance may provide grounds for withdrawal, see your jurisdiction’s version of Rule 1.16. Be aware that a grievance does not automatically terminate your representation or your responsibility to the client.

5. Don’t Miss a Deadline Set by the Grievance Commission

Sanctions for missing a deadline can be quite harsh. If you cannot meet a deadline, promptly advise the grievance authority staff handling your case and request a new (but reasonable) deadline.

Conclusion

Finally, before responding to a grievance, seek counsel. The procedures and process involved in lawyer discipline are increasingly formalistic and esoteric. This creates pitfalls for the honest but unwary attorney.

If you must represent yourself, following these basic tips will help you avoid the procedural errors that all too often undermine an otherwise professional response to a grievance.

 

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