Risk of a Bar Grievance is Significant

September 7, 2011
The Daily Report

During the 2010 bar year, 3,228 people requested a form from the State Bar of Georgia for the purpose of filing a grievance against a Georgia lawyer. For the 2011 bar year (May 1 through April 30), the number grew to 3,659 inquiries for purposes of a grievance.

In isolation, these numbers do not appear staggering. Yet, between 1996 and 2011, the total was 54,194. Georgia only has a little more than 41,000 attorneys who are members of the State Bar.

Of course, this does not mean that every member of the State Bar has been the subject of a bar complaint during the last 15 years. Indeed, of the 3,228 requesting a grievance from last year, only 2,059 actually filed a grievance with the Office of General Counsel at the State Bar. Still, almost 35,000 grievances have been filed against Georgia attorneys since 1996. The bottom line is that the risk of a bar grievance remains significant.

Unfortunately, the implications of a bar grievance are also significant. Many applications ask about disciplinary proceedings, including applications for pro hac vice admission, judgeships (through the
Georgia Judicial Nominating Commission), and legal malpractice insurance.

While 5 percent of grievances are dismissed without any attorney involvement, 95 percent are sent to the attorney for a response. In those cases, there is the stress of a bar complaint and the time required to gather the information and prepare a response.

The good news is that Paula J. Frederick, the general counsel of the State Bar of Georgia, and her office, get it. They fully appreciate the challenges of the modern law practice and have a keen eye for disgruntled clients who are just unhappy with their results. The bad news is that Frederick and her office get it. They fully recognize that bad attorneys exist and hence have developed a keen eye for spotting troublesome violations.

More often than not, the State Bar of Georgia hears from unhappy clients or other members of the bar long before a grievance against an attorney is actually filed. In most situations, the bar's Consumer Assistance Program (CAP) will be the first contact, often by phone, letter or an in-person visit.

Importantly, the Consumer Assistance Program is not part of the office of the general counsel, and the information that they receive is confidential even as to the general counsel's office. Many times, whatever issues exist are sorted out and solved through the CAP. Other times, the CAP cannot resolve the matter or, in some situations, violations of the bar rules appear.

The next step is a bar complaint, or more technically accurate, a grievance. Upon request, the bar sends a standard grievance form (accompanied by a pamphlet that describes how the bar's disciplinary procedures work). Grievances must be in writing and signed.

Within the office of the general counsel, the grievance counsel initially screens the grievance to determine if it is meritless or outside the bar's jurisdiction. With few exceptions (approximately 5 percent), the grievance is sent to the attorney for a response. Upon receipt, the attorney's response is sent to the complainant for a rebuttal. From there, the grievance counsel decides whether to dismiss the grievance or continue. A little more than half (51 percent) of grievances are dismissed.

Basically, there are several categories of grievances that may involve a genuine dispute, but do not fall within the disciplinary jurisdiction of the bar. These include:

• fee disputes (often referred to the Fee Arbitration Division of the bar if the parties agree);
• trial tactics (unless they involve allegations of abandonment, fraud, willful misrepresentation or disruptive courtroom behavior);
• malpractice claims (which are the subject of a pending legal malpractice action or do not involve an ethics violation such as simple mistake); and
• matters involving conduct that occurred more than four years ago (subject to some very limited circumstances that toll the matter for up to two years).

Since 1996, just under 6,000 (5,989) grievances have been actually sent to the Investigative Panel of the State Disciplinary Board for a formal investigation. In the last year, 284 were sent to the Investigative Panel for investigation. During this phase, the Investigative Panel decides whether to find "probable cause" to charge an attorney with an violation of the Georgia Rules of Professional Conduct.

One of most frequent questions that attorneys ask is: Should I hire my own lawyer if a bar complaint or grievance is filed against me?

In most situations, the answer is no. In fact, in some practice areas like criminal defense or domestic relations, hiring an attorney for every grievance or bar complaint would be cost-prohibitive. More often, it is completely unnecessary.

The most important thing to do is respond and be truthful. Ignoring a grievance will not make it go away and can make it worse. Submitting an untruthful or incomplete response likewise will only make it worse.

The best solution is to gather the information, prepare a response and make sure it is accurate and complete. If this cannot be done for any reason, then hire an attorney to help.

In recent years, about half of all matters referred to the Investigative Panel result in a determination of "probable cause" that a violation has occurred. Almost all determinations of probable cause result in disciplinary action against the attorney. In addition, many times additional violations are discovered during the course of an Investigative Panel investigation resulting in even more issues for the
attorney.

Three steps can help reduce the risk of a bar complaint and the stress, if one happens:

1. Use the resources of the State Bar of Georgia

The State Bar of Georgia and specifically the office of the general counsel has a wealth of resources available to help attorneys stay out of trouble. Here are several.

The Rules
The Georgia Rules of Professional Conduct can be found easily in two different places: (i) the current Bar Directory and Handbook; and (ii) the State Bar of Georgia website at www.gabar.org. Importantly, Georgia's Rules include both aspirational and mandatory standards. While every attorney should strive to reach the aspirational, the mandatory rules carry with them disciplinary penalties for
violations.

The Lawyer Assistance Program
For attorneys facing an impairment issue (such as addiction, depression or illness), the Lawyer Assistance Program provides help. In addition to navigating the ethics rules, the LAP provides resources for managing a law practice while an attorney regains control.

Fee Arbitration Program
Based on the most recent data, more than 40 percent of legal malpractice claims arise out of a fee dispute of some kind. Yet, not every fee dispute need end up in a legal malpractice claim. The FAP
provides a vehicle for third-party assistance to resolve fee disputes without litigation. The program is not mandatory, but it is helpful in resolving hundreds of fee disputes without litigation.

Law Practice Management Program
Sometimes attorneys, especially young attorneys just starting out, need help with the fundamentals of setting up and managing a law practice. In other situations, attorneys need help transitioning from
pre-Internet practice (together with email, voicemail and changing technologies) to a 21st century law practice. Either way, the LPMP is a useful tool in creating and managing a bar rule-compliant law practice.

Ethics Helpline
Georgia attorneys can seek guidance from one of the assistant general counsels through an Ethics Helpline. The telephone numbers are (404) 527-8741 and (800) 682-9806. Typically, calls are returned within 24 hours. On average, the Helpline gets about 22 calls per workday.

Formal advisory opinion
Attorneys also can seek a formal opinion from the Formal Advisory Opinion Board. To get a formal opinion, write to the chair of the Formal Advisory Opinion Board at the State Bar of Georgia, 104 Marietta St. N.W., Suite 100, Atlanta, Ga. 30303.

2. Ethics training

The State Bar of Georgia has a mandatory continuing legal education requirement of one hour of ethics every year. Larry Jones and the Institute of Continuing Legal Education in Georgia offer myriad programs ranging from the basics of the State Bar rules to the specific application of the bar rules to an area of practice. The most important thing is to stay abreast of changes in the ethics rules as well as new interpretations of those rules by the bar and the courts. As the Internet continues to emerge as a part of the average law practice, understanding and applying the rules as they adapt is important.

3. Respond appropriately

Upon learning of a bar complaint, attorneys should respond appropriately. At its essence, this includes: (i) treating the bar complaint seriously; (ii) responding timely; (iii) including everything relevant to the allegations; and (iv) being truthful and complete. Often it is helpful to have someone other than the attorney read the response.

In addition, many attorneys have disciplinary proceedings insurance coverage as part of their legal malpractice insurance. If so, the matter should be reported promptly.

From 1996 to 2010, only 2,251 attorneys had been disciplined notwithstanding over 50,000 inquiries from potential claimants. While it is unlikely that most attorneys, especially those in high-risk practices, can completely avoid having a bar complaint over their career, they can avoid discipline. How? Know the rules, use the resources that are available and understand how the process works.

Reprinted with permission from the September 7, 2011 issue of the Daily Report© 2011 ALM Media Properties, LLC.  Further duplication without permission is prohibited.  All rights reserved.

Print PDF