Texas Prosecutor, September-October 2018

Help! I got a grievance letter! What do I do?

The May-June 2018 issue of this journal featured an excellent article on the changes to the attorney grievance process. Having worked for the Chief Disciplinary Counsel’s (CDC) Office for almost eight years (a very long time ago, during the “good ol’ days” that were mentioned in the article), I was amazed at the number of telephone calls we fielded from attorneys who had received a complaint letter and did not know what to do about it. While I know it is easy to get busy, I hope everyone reading this article has also read (or will read) the earlier one.1 Before receiving that letter from the CDC’s Office (and inevitably, at least half of us will receive that letter over the course of our careers), it is good to have at least a working knowledge of the process.  

Brief overview
Any person can file a complaint with the CDC. There is no privity requirement that the person have an attorney-client relationship to file a complaint. The CDC has 30 days to classify the complaint as an inquiry, complaint, or discretional referral. Usually, at this point in the process, the CDC reviews the document from the complainant and using the “four corners” test, meaning that if the facts alleged within the four corners of the complaint are true, was a disciplinary rule violated?
    If a disciplinary rule was not violated, the grievance is dismissed as an inquiry and the complainant and respondent are notified in writing. With that letter, the respondent also gets a copy of the grievance. Also note that the complainant has the ability to appeal the adverse decision to the Board of Disciplinary Appeals (BODA).  
    If a disciplinary rule was allegedly violated, the CDC upgrades the document to a complaint and sends this information to the attorney for a response. If you receive this notice, you must respond to the complaint, though just because you are asked to respond does not mean that you committed professional misconduct. The CDC will then investigate the claim and can schedule an investigatory hearing.
    If a grievance is determined to be a discretionary referral, the CDC will notify the complainant and respondent of the referral to the State Bar’s Client Attorney Assistance Program (CAAP). Referrals to CAAP are usually for minor misconduct cases. Within 15 days, the CDC will determine whether the grievance should be dismissed as an inquiry or proceed as a complaint, and CAAP will notify the CDC the outcome of the referral within 60 days
    After an investigation and hearing, the results could be a sanction negotiated with the respondent, the CDC’s dismissing the complaint, or a finding of “just cause.” If the CDC determines that “just cause” exists, the attorney can choose the type of adversary hearing. Once given notice, the attorney must elect to proceed with an evidentiary panel or a trial in district court. If the attorney fails to make the election in writing within 20 days, the matter will proceed through the evidentiary panel process.2

An evidentiary hearing
An evidentiary hearing is before a different panel of the grievance committee than the one that previously heard the complaint. The CDC will serve on the respondent no more than 60 days after receipt of election a petition brought by the Commission for Lawyer Discipline (CFLD). The petition will include the name of the respondent, allegations necessary to establish venue, a description of the acts and conduct that gave rise to the alleged misconduct, a list of the specific rule allegedly violated, a demand for judgment that the respondent be disciplined, and any other matter that is required. The respondent is required to file a responsive pleading either admitting or denying each specific allegation (think federal court pleading) no later than 5 o’clock p.m. on the first Monday following the expiration of 20 days after service of the petition.  If the respondent fails to file an answer, a default judgment can be taken against him.
    Prior to a hearing, both sides may obtain written discovery from the other party. There is also subpoena power available to both the CFLD and respondent. At the hearing, the burden of proof is on the CFLD to prove the allegations in the petition by a preponderance of the evidence, and the evidentiary panel chair will conduct the hearing generally in accordance with the Texas Rules of Evidence. However, evidence is admitted at the discretion of the chair. Once the hearing is completed and the parties notified of the decision, any appeal is to BODA within 30 days.

Going to trial
If the attorney chooses district court trial, a private reprimand is no longer an available option for a sanction. As in the evidentiary panel process, the CFLD files a disciplinary petition with the Texas Supreme Court containing the same information as in the evidentiary petition. Upon receipt, the Supreme Court will appoint an active district judge who does not reside in the administrative judicial district in which the respondent resides to preside over the case. Once the CDC receives the appointment of the presiding judge, the disciplinary petition will be filed with the district clerk of the county of alleged venue. The case will then proceed as any other civil case with the issuance of citation, an answer, discovery, and a trial. Both parties have the right to a jury trial, though the complainant does not have a right to demand one. Disciplinary actions are civil in nature and the Texas Rules of Civil Procedure apply. The burden of proof is on the CFLD to prove the allegations in the petition by a preponderance of the evidence. Either the judge or the jury will determine whether the respondent’s conduct constitutes professional misconduct. If misconduct is found, the court determines an appropriate sanction.  

Grievance system statistics
When reviewing the statistics published by the State Bar of Texas for the last five years, I would point out the following trend. Overall, the number of grievances filed and the number of grievances dismissed as inquiries has decreased, even though the number of licensed Texas attorneys has increased. However, the number of grievances classified as a complaint, requiring a response from the attorney, has increased. The number of provisions in the Disciplinary Rules of Professional Conduct relating to integrity, tribunals, and non-clients have increased dramatically—and, yes, those rules are potentially related to prosecutors. Take heart in noting that more than half of the grievances received are not classified as complaints, and out of those classified as complaints, less than a fourth of those result in the attorney being disciplined.   

Potential rule violations for prosecutors
Grievances against prosecutors are becoming more common in Texas.3 Civil practitioners in prosecutor’s offices need to become familiar with the conflict of interest rules.4 At our civil conferences, we discuss them repeatedly, as a typical day for a civil practitioner is replete with conflict questions.  
    For both the criminal and civil attorneys, read over Section III of the disciplinary rules. This section relates to the integrity and tribunal rules that have increased in the last year. Rule 3.09 relates to the special responsibilities of a prosecutor. Remember, there is a difference between ethical misconduct versus Brady error, but there is also some overlap. The disciplinary rules require a showing that the prosecutor had actual knowledge of the evidence that was suppressed.5

I got the dreaded letter—what do I do now?
First, breathe and try not to have an anxiety attack or otherwise freak out. You will experience myriad emotions when you read the grievance. Your first instinct will be to fire off a response telling the committee about all of the good things you have done and all of the experience you have and everything the complainant said are vicious lies. As with any correspondence when you may be upset, put it aside for 24 hours and come back to it.  
    The letter from the CDC and grievance will not specify which rules you allegedly violated, so you will need to be calm and methodical when reviewing the complaint to ascertain which rules require a response. Further, it will be difficult to remain objective about something so serious that could take away your livelihood, so talk to another trusted attorney who will be honest about the issues in the grievance. Read the disciplinary rules and research any cases related to those potential rule violations. Additionally, research prior discipline for those violations to see what discipline you could be facing. You can find prior disciplines in the back of the Texas Bar Journal, or you can use this link to assess the State Bar of Texas website for recent disciplines: https://www.texasbar.com/AM/ Template.cfm?Section=Media_Resources&Template=/CM/HTMLDisplay.cfm&ContentID=29541. The new rules include more instruction to the tribunal as to the appropriate sanction for each rule violation as well as the respondent attorney’s mental state. Additionally, the tribunal now can consider aggravating and mitigating circumstances.6
    Next, calculate your response deadline. The response is the opportunity to tell your side of the story, and it is due 30 days after receipt of the notice from the CDC.7 Failure to file a response could result in additional disciplinary rule violations, which makes cooperation essential. 8
    Be candid. Answers to the allegations should be honest, written in a professional tone, and responsive to the allegations. Answers should include enough detail to demonstrate you have committed no misconduct.9 If you have documentation, provide it to the CDC. If you do not provide the documentation voluntarily, with the new rules, the CDC has subpoena authority.10 But respondent attorneys do not have the same ability to subpoena records.  
    Consult or hire counsel who works in the grievance system.11 It is very difficult to remain objective during this process when you’re going through so many emotions, so consult with an attorney who specializes in grievances. That attorney will be able to read the complaint and your response, and he may see other things that need addressing. Further, the attorney can tell you objectively what the grievance committee will be looking for in the response.

A word on expunctions
Lastly—as if the rest of this article has not made you question why you entered into the profession—what if the records you need to defend against a grievance have been expunged? There are a few ways to handle this issue. On the front end (say, in the midst of a contentious case), if you sense that a future grievance may be filed against you, make a note in the file and let your office’s expunction attorney know. Under the expunction statutes, the State can argue that the files are necessary to be maintained for a civil case. If the court makes that finding, then the expunction order can expressly maintain the files for that purpose.12
    On the back end, after a grievance is filed and you have received your notice to respond, you can argue that the defendant made the allegations material in the expunged file and therefore a matter of public record subject to discovery proceedings.13 Spoliation is the improper loss or destruction of relevant evidence.14 A party that does not reasonably preserve discoverable evidence can impair the opposing party’s ability to present its claims or defenses. In the case of an expunction, the defendant would be requesting the State to destroy all of its files in his case, thereby hindering a later ability to respond to a civil claim.15

Conclusion
I hope this article has given you some practical advice and pointers to consider if you receive notice of a grievance from the CDC. I would encourage you to get involved in the process and apply to be on a grievance committee. Each member serves for a specified term, and when the term has expired, the State Bar Directors in your area will be seeking new members to fill those vacancies, so polish off the résumé and go to the Bar’s website, www.texasbar.com, to locate the directors in your area. The best time to send your résumé is in January or February.

Endnotes

1  Read it here: https://www.tdcaa.com/journal/changes-attorney-grievance-process.

2  Tex. Disciplinary R. Prof’l Conduct 2.15.

3  Laura Bayouth Popps, Prosecutorial Misconduct and the Role of Discipline, Texas Bar Journal, July 2017.

4  Tex. Disciplinary R. Prof’l Conduct 1.06, 1.07, 1.08, and 1.12.

5  Tex. Disciplinary R. Prof’l Conduct 3.09(d).

6  Tex. Disciplinary R. Prof’l Conduct 15.09.

7  Tex. Disciplinary R. Prof’l Conduct 2.10(B).

8  Tex. Disciplinary R. Prof’l Conduct 8.01(b) or 8.04(a)(8).

9  TYLA Pocket Guide:  Grievance and Malpractice 101 (2013).

10  Tex. Disciplinary R. Prof’l Conduct P 2.12.   

11  “He who represents himself has a fool for a client.” Abraham Lincoln.

12  Tex. Code Crim. Proc. Art. 55.02 §4(a-2)(2).

13  W.V. v. State, 669 S.W.2d 376 (Tex. App.—Dallas 1984, no writ).

14  See Brookshire Bros. v. Aldridge, 438 S.W.3d 9, 13 (Tex. 2014); Wal-Mart Stores v. Johnson, 106 S.W.3d 718, 721 (Tex. 2003); Cresthaven Nursing Residence v. Freeman, 134 S.W.3d 214, 225 (Tex. App.—Amarillo 2003, no pet.); see also Miner Dederick Constr., LLP v. Gulf Chem & Metallurgical Corp., 403 S.W.3d 451, 467 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).

15  Brookshire Bros., 438 S.W.3d at 16; see Johnson, 106 S.W.3d 721.