Practical Disciplinary Advice for Lawyers
Patrick B. Cavanaugh
Kitch Drutchas Wagner Valitutti & Sherbrook .
Patrick B. Cavanaugh
Kitch Drutchas Wagner Valitutti & Sherbrook.
Most attorneys in Ohio have little or no experience with the disciplinary process. And that’s a good thing. The 2012 statistics from the Board of Commissioners on Grievances & Discipline show more than 44,000 active registered lawyers and 4,280 total grievances filed that year. Statistically, this is about 1 grievance for every 10 attorneys, suggesting about a 1 in 10 chance of being grieved.
Fortunately for those lawyers who are grieved, more than 50 percent of grievances will be dismissed on intake or after an initial review. Although statistically it appears there is a 1 in 10 chance, some attorneys are repeatedly grieved. About 20 percent of attorneys who are disciplined have prior discipline as an aggravating factor.
If you are grieved, the following are important tips:1. Better Late Than Never
Some attorneys respond to a grievance by burying their heads in the sand. Sometimes this reaction is related to mental health or substance abuse problems. Whatever the cause, it is important to respond. All attorneys and judges have an affirmative duty to cooperate with disciplinary investigations and hearings. Gov.BarR. V(4)(G). Further, the Rules of Professional Conduct require a response, whether the information sought relates to the lawyer’s own disciplinary proceeding, or that of a fellow attorney. Prof.Cond.R. 8.1(b). Even when default proceedings have begun, it is still worthwhile to file a late answer to the disciplinary complaint, or if necessary file a motion for leave to answer. Ignoring a grievance completely is a sure way to end up with an indefinite suspension from the practice of law.
Frankly, some grievances aren’t that serious, but completely failing to cooperate can make it much more so. One of the harshest sanctions the Ohio Supreme Court issues is an indefinite suspension. That’s why it’s important to remember a late response is better than no response.2. Hire Somebody Competent
Often an attorney decides to represent him or herself in a grievance. Sometimes this works, and other times, not so much. The disciplinary process is unique. Each case goes through two probable cause determinations and two separate levels of review before eventually going to the Supreme Court. An attorney defending a disciplinary matter should be familiar with this.
Also, an experienced attorney will have a good sense where the case is headed. For example, is the respondent likely to be given a public reprimand, a stayed suspension, or an indefinite suspension?3. Show How You Have Reformed Your Ways
The top five reasons an attorney is disciplined are:
1. Neglect (You’ve hired me but I haven’t done anything and won’t return your calls).
2. Improper handling of funds in IOLTA account (I don’t know how an IOLTA account works and/or I have stolen your money).
3. Excessive fees (I’ve charged you a lot of money for what was actually required).
4. Dishonest conduct/conduct adversely reflecting on lawyer’s fitness to practice (I’ve lied and/or I have done something illegal).
5. Failure to promptly turn over client file (You can fire me but I won’t give you the file).
These reasons have remained remarkably constant.
Frequently curing the neglect is all that the grievant wants. It is not unusual that a grievance investigation fizzles out after the attorney fixes the neglect or performs the task that was ignored. However, even in more serious matters respondent attorneys will want to show they have made efforts to correct the problems that have gotten them into trouble. Restitution or rectified consequences are mitigating factors considered in every disciplinary proceeding. Sometimes a respondent needs to bring law office management skills up to speed, or to mentor with someone who can show him or her how to manage an IOLTA account. Many minor problems underlying grievances can be corrected, leading to improvements in the lawyer’s practice.
Odds are you won’t face a disciplinary proceeding, but if it happens, do not ignore it or turn your defense over to an amateur. Try to be objective and consider the process a learning experience, one by which you may actually improve your practice.
Cavanaugh serves as chair of the Toledo Bar Association Grievance Committee, which is certified by the Supreme Court.
This article originally appeared in the January 2014 edition of the Toledo Bar’s newsletter. Reprinted with permission.