ATTORNEY WRONGDOING - THE GRIEVANCE PROCESS …

[Pages:6]ATTORNEY WRONGDOING THE GRIEVANCE PROCESS

DAWN E. FOWLER RAGGIO & RAGGIO, PLLC 3316 OAK GROVE AVENUE

DALLAS, TEXAS 75204 214.880.7500

214.880.7506 (fax) def@

ADVANCED FAMILY LAW DRAFTING COURSE December 6-7, 2001 Houston, Texas CHAPTER 4.1

DAWN E. FOWLER Raggio & Raggio, P.L.L.C..

3316 Oak Grove Avenue Dallas, TX 75225 (214) 880-7500

def@

CONDENSED VITAE

Board Certified, Family Law, Texas Board of Legal Specialization. 1995

Education

B.S. in Criminal Justice, University of Texas, Arlington, 1975 J.D., Southern Methodist University, 1984 Mediation Training (general, family, CPS) Collaborative Law Training, 2001

Employment

1984-present: Raggio & Raggio, P.L.L.C. General family law practice

Memberships

State Bar of Texas, since 1984 Family Law Section College of the State Bar of Texas - since 1991 Charter Member (1992) - Pro Bono College District 6 Grievance Committee

Member 1993 - 1996; 2000 - 2001; 2001-2003 Panel Vice-Chairperson, 1994-1995 Panel Chairperson, 1996 Mentor Program - since 1998 Texas Family Law Practice Manual Committee (1999-2001)

Texas Academy of Family Law Specialists, 1996 Texas Bar Foundation, elected as a Fellow, 1990 Dallas Bar Foundation, elected as a Fellow, 1993 American Bar Association, since 1985 Dallas Women Lawyers Association, since 1985 Dallas Bar Association, since 1985

Secretary-Treasurer, 2001 Family Law Section, Board of Directors: 1990-1997; 1999-2001; Chairperson - 1996 Solo and Small Firm: Chairperson, 1990 Probate Section: Volunteer - Wills Project DVAP: Volunteer, advisor, trainer, speaker since 1987 Committees: Legal Aid; CLE; ADA; Attorney Referral; Legalline (Co-Chair, 2000); Fee Disputes Panel; Peer Assistance Home Project, 1997-2001

ATTORNEY WRONGDOING - THE GRIEVANCE PROCESS

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TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. THE GRIEVANCE PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

III. HOW TO AVOID THE GRIEVANCE PROCESS -- COMMON SITUATIONS AND PROPOSED

SOLUTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A. SITUATION: Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. Returning Telephone Calls. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2. Written Communication with the Client. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

3. Settlement Offers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

4. Communications with Person Represented by Another Attorney. . . . . . . . . . . . 4

5. Effective Interviews / Accepting and Continuing Employment. . . . . . . . . . . . . 4

B. SITUATION: Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

1. Fee Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2. Contingent Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

3. Non-Refundable Retainers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

4. Referral Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

C. SITUATION: Securing Client Funds and Property - Trust Accounts . . . . . . . . . . . . . 5

D. SITUATION: Securing Client Funds and Property - Returning Client Files . . . . . . . . 6

E. SITUATION: Leaving a Law Firm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

F. SITUATION: Meritorious Claims / Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

G. SITUATION: Conflict of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

H. SITUATION: Notifying Clients About the Grievance System . . . . . . . . . . . . . . . . . . . 7

I.

SITUATION: Advertising . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

J.

SITUATION: Help is Needed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

III. WHAT TO DO AFTER YOU RECEIVE A GRIEVANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 1. Appeal the Classification as a Complaint to the Board of Disciplinary Appeals. .............................................................. 8 2. Call the State Bar. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 3. Continue Representing Your Client. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 4. Determine if You Should Hire An Attorney. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 5. Respond Timely to the Complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 6. Respond to the Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 7. The Investigatory Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 a. Attend the Hearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 b. Be on time. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 c. Bring your entire file. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 d. Witnesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 e. Do not Disseminate Additional Information at the Hearing. . . . . . . . . . . . 10 f. Know and Respond to Your Audience . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 g. Answer the Question Propounded to You and Only the Question Propounded to You. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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h. Know When to Shut Up. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 i. Control Your Emotions, Particuarly Anger. . . . . . . . . . . . . . . . . . . . . . . 10

lV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Appendix A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Appendix B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Appendix C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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CHAPTER 4.1

I. INTRODUCTION Approximately ninety percent (90%) of all

complaints received by the State Bar of Texas are from clients with cases in the area of family law, personal injury, or criminal law.

If you practice family law, it is truly not a question of "if" but "when" a grievance will be filed against you.

The purpose of this article is to highlight the situations in which most complaints are made, precautions to take to try to avoid these situations, how the grievance process works, what to expect when you receive a grievance, and how to defend yourself.

II. THE GRIEVANCE PROCESS The Texas Disciplinary Rules of

Professional Conduct and Texas Rules of Disciplinary Procedure (hereinafter referred to as "Rule") can be found in your Texas Rules of Court and Texas Government Code, Chapter 81. One of the best ways to avoid a complaint is to read these rules at least once a year.

The Grievance Committee only hears matters that have been determined by the Chief Disciplinary Counsel's regional or field office to allege professional misconduct. Such matters are called "Complaints." Other communications concerning alleged attorney conduct that, even if true, do not allege professional misconduct or a disability, are called an "Inquiry." Over 9,000 grievances are received each year by the State Bar. The good news is that the majority are dismissed.

Anyone can file a grievance - clients, former clients, opposing counsel, judges, opposing parties, witnesses, etc, and the State Bar. For most rule violations, there is no "standing" requirement, no requirement that an attorney-client relationship exist, or a requirement that the client or another party was actually harmed. The person filing the grievance is called the "Complainant"; the attorney against whom the grievance is filed is called the "Respondent."

Grievances must be in writing. The State Bar has a form packet that is sent to anyone upon

request. When the original grievance is received, it is reviewed by an investigator of the State Bar to determine whether or not on its "four-corners" it alleges professional misconduct under the Texas Disciplinary Rules of Professional Conduct. In making this review, the investigator is required to assume that the allegations are truthful and accurate.

If a grievance factually alleges misconduct, the rules require that both the grievance be classified as a complaint and that a hearing actually be held (unless there is a successful appeal to the Board of Disciplinary Appeals [BODA] before the hearing is held). THERE IS NO DISCRETION. Under the rules, neither the State Bar nor any Grievance Committee has the authority to summarily dismiss complaints without a hearing even if the attorney's response disproves all of the Complainant's allegations of misconduct.

A copy of the complaint is sent along with a letter from the Chief Disciplinary Counsel's office instructing the attorney to respond within 30 days. See Appendix A.

The attorney can appeal the Chief Disciplinary Counsel's decision to classify the matter as a complaint. The appeal is directed to the Board of Disciplinary Appeals ("BODA"). An appeal does not suspend the investigation, and the grievance committee will hold an investigatory hearing pending the appeal. However, if misconduct is found at the investigatory level, no evidentiary panel can be assigned until the appeal is resolved. A successful appeal results in dismissal of the grievance. See Appendix B for a copy of the form to file to appeal.

The Committee acts through panels composed of 2/3 attorneys and 1/3 public members. There are investigatory and evidentiary panels. A panel member is disqualified to sit on a particular case if a district judge, in similar circumstances, would be disqualified. A majority of the panel is a quorum, but at least one public member for every two attorney members must be present at each hearing. To be eligible to vote, a member must hear all the evidence. A tie vote is considered a vote in favor of the attorney.

Every complaint is presented to an

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investigatory panel to determine whether there is

"Just Cause." "Just Cause" is defined as such cause

as is found to exist upon a reasonable inquiry that

would induce a reasonably intelligent and prudent

person to believe that an attorney has committed an

act or acts of professional misconduct requiring that

a sanction be imposed, or suffers from a disability

that requires either suspension or probation from the

practice of law. The investigatory panel must be

convened within 30 days of receiving the attorney's

written response to the complaint.

Prior to the investigatory hearing, all panel

members receive a copy of the complaint and the

attorney's response. The purpose of the hearing is

to obtain any information that may be needed to

clarify and/or understand the situation. It is not an

adversarial hearing, and the parties are not permitted

to question or cross-exam each other. The

investigatory proceeding may proceed without either

or both parties unless the panel concludes it must

have further evidence to make its determination.

Even though a complainant may withdraw the

complaint, the investigatory proceeding will occur.

The investigatory hearings, discussions, and

voting are strictly confidential and are not subject to

discovery or production. However, when there is a

finding of Just Cause, and a sanction other than a

private reprimand is agreed to by the attorney, then

all information that was brought to the panel's

attention may be made public upon proper request.

If the panel votes unanimously that there is

no Just Cause, the complaint is dismissed. The

Complainant may refile the complaint with

additional evidence at any time.

If the panel finds that there is no Just Cause,

but the vote is not unanimous, the Complainant may

request another investigatory hearing before

2.

different panel members. If the majority of the

second panel votes that there is no Just Cause, the

complaint is dismissed.

If the investigatory panel finds Just Cause,

an offer letter is sent to the attorney, and several

things may happen:

1. The attorney may agree to the

sanction proposed by the

3.

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CHAPTER 4.1

Committee. The sanction can range from a private reprimand to resignation in lieu of disbarment. The attorney can also be referred to PEP (Professional Enhancement Program).

NOTE: A private reprimand cannot be utilized if:

a. A private reprimand has ben imposed upon the attorney within the preceding five (5) year period for a violation of the same disciplinary rule. b. The attorney has previously received two or more private reprimands, whether or not for violation of the same disciplinary rule, within the preceding ten (10) years. c. The misconduct included theft, misapplication of fiduciary property, or the failure to return, after demand, a clearly unearned fee. d. The misconduct has resulted in substantial injury to the client, the public, the legal system or the profession. e. There is a likelihood of future misconduct by the attorney. f. The attorney's misconduct was an intentional violation of the Texas Disciplinary Rules of Professional Conduct. The attorney can try to negotiate another sanction. Many voted sanctions are negotiable and the attorney may respond with any counter-offer within ten (10) days. The counter-offer will be taken back to the investigatory panel that heard the case for acceptance or refusal. If negotiation of another sanction is

ATTORNEY WRONGDOING - THE GRIEVANCE PROCESS

CHAPTER 4.1

not successful, a judgment is sent to the attorney. If the attorney does not accept the judgment within twenty (20) days, one of two things will happen: a. Further proceedings are conducted before an evidentiary panel. At this point, no private reprimand is available. b. Rather than an evidentiary panel hearing, the attorney can elect to proceed with a trial de novo in the District Court. Again, no private reprimand is available.

NOTE: The 20-day time frame is jurisdictional and cannot be extended by agreement. Therefore, it is vital for an attorney who has successfully negotiated a sanction with the committee to sign the judgment within 20 days. For example, if a private reprimand is negotiated, but the judgment is not timely signed, the private reprimand is no longer available. Even if an agreement for a public sanction is negotiated, the committee loses its jurisdiction to negotiate if it is not timely signed, and the matter goes to the Commission for Lawyer Discipline for settlement. The Commission is not bound by the previously voted or negotiated sanction.

harm to the public, the Chief Disciplinary Counsel can seek an immediate interim suspension of the attorney by filing a petition in District Court.

2. The Chief Disciplinary Counsel or anyone else can petition for the appointment of a custodian for the attorney's files when the attorney has disappeared, become disabled, died, resigned, become inactive, or been disbarred or suspended.

3. If an investigatory panel finds that an attorney is suffering from a disability, this finding is forwarded to the Board of Disciplinary Appeals (BODA). A special disability committee reviews the finding, and if they agree, BODA immediately enters an order indefinitely suspending the attorney. The attorney may appeal the finding to the District Court.

NOTE: Disability is defined as any

physical, mental, or emotional condition

that, with or without a substantive rule

violation, results in the attorney's inability

to practice law, provide

client

services, complete contracts of

employment, or otherwise carry out his or

her professional responsibilities to clients,

courts, the profession, or the public.

As indicated, no substantive rule violation is required to find an attorney has a disability.

The disability process tolls the statute of limitations for disciplinary matters.

III. HOW TO AVOID THE GRIEVANCE PROCESS -- COMMON SITUATIONS AND PROPOSED SOLUTIONS.

NOTE: For information about the District Court or Evidentiary Panel process, refer to Rules 2.16 - 3.16, Texas Rules of Disciplinary Procedure.

Other things that can occur:

1. If the investigatory panel finds that an attorney poses a substantial threat of irreparable

A. SITUATION: Communications 1. Returning Telephone Calls.

According to the Chief Disciplinary Counsel's Office, the number one source of grievances arises from failure to return telephone calls. Rule 1.03 requires an attorney to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. Failure to return telephone calls is a rule violation. If you are unable

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to return a client's telephone call within 24 hours, have someone call the client and give them an approximate time frame within which you will be able to talk to them. If you have voice mail, customize your outgoing message to tell the caller you are in trial, out of town, or otherwise not available for a specific time frame. Send "vacation letters" to your clients as well as opposing counsel and the courts. Keep telephone logs which document who called you, when you returned the call, and a brief summary of the call.

2. Written Communication with the Client. The attorney has an affirmative duty to keep

the client informed. Rule 1.03. Copy the client with all correspondence received or sent in a case. Any matter that involves a client decision should be put in writing specifically stating the issue, the options, and any other information the client may need to make an informed decision. Memorialize all important office and/or telephone conversations in a writing that is placed in the client's file, and send a copy to your client. Keep your client informed of all developments in the client's case, and put it in writing. "The strongest memory is weaker than the palest ink." (author unknown)

3. Settlement Offers. An attorney must communicate any

settlement offer to the client in a civil case except where prior communications have made it clear that a particular proposal would be unacceptable to the client. Rule 1.02. (See number 2 above).

4. Communications with Person Represented by Another Attorney. Unless you have the consent of the other

lawyer, a lawyer is prohibited from communicating or causing or encouraging another person to communicate about the subject of the representation with a person, organization, or entity that the lawyer knows to be represented by another lawyer regarding the subject matter. Rule 4.02.

Additionally, the lawyer is prohibited from communicating with a person or organization the lawyer knows to be employed or retained for the

purpose of conferring with or advising another lawyer about the subject of the representation. Rule 4.02(b).

If the other side does not have an attorney, you may talk to them. However, you should not state you are disinterested, and should correct any misunderstandings about your role that may arise.

5. Effective Interviews / Accepting and Continuing Employment. Carefully listen to prospective clients to

determine if you should accept their case. Do you have the time? Does the client have the necessary funds? Are the client's expectations reasonable? If you know who will be representing the other party, what is your relationship with that attorney or what is their reputation? Would you be the third attorney on the same case? Is the case set for trial within the month? Are there things that just do not make sense? Look for the red flags.

Once you are in the case, periodically talk with the client to make sure they are "satisfied" with your representation and are maintaining realistic expectations. Watch their billing statements. If you are not getting paid, cannot work out a payment plan with your client, and can withdraw without prejudicing their case, you need to do so.

B. SITUATION: Fees 1. Fee Arrangements

Have a written fee contract in every case. The Texas Disciplinary Rules of Professional Conduct only require written fee contracts for a contingency fee. However, a large number of grievances arise over a misunderstanding about fees. Although the Grievance Committee does not hear fee disputes, almost inevitably the complaint will involve a failure to communicate on other issues as well as fees.

2. Contingent Fees. Contingent fees are permissible in all civil

cases. Although the comments to Rule 1.04 state that contingent fee arrangements in family law cases are rarely justified, the evolution of family law to include other civil claims has created situations not

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