Overview of the Texas Grievance System: Ten Questions

Grievances can be a fact of professional life in almost any area of legal practice, although, historically, most grievances arise out of criminal law, personal injury, and family law practices. When a lawyer receives a notice of a grievance complaint from the State Bar, there are several issues to consider about how best to proceed. The Texas Rules of Disciplinary Procedure are the applicable procedural rules governing how a grievance is handled. Some key questions for respondent attorneys are:

1. I just received a letter from the Office of the Chief Disciplinary Counsel telling me that I have to respond to a grievance that was included with the State Bar’s letter? Are they kidding? No, you really do have to respond in writing within 30 days of your receipt of the State Bar notice—even if you think that the grievance is frivolous. See Rule 2.10, Texas Rules of Disciplinary Procedure. If you anticipate that you need more than 30 days to prepare an appropriate written response, you should promptly contact the State Bar attorney or investigator who signed the notice and ask about an extension of time to respond. An extension of additional 30 days to respond is typical, but not guaranteed, especially if you wait too long to ask for an extension. There is a form State Bar letter agreement for a time extension that you must sign and promptly return to the Chief Disciplinary Counsel’s Office so don’t forget to follow-up if you do not receive this form from the State Bar (usually by fax) after you request an extension.

2. That grievance is frivolous. What if I don’t respond? A common error for lawyers who receive a grievance complaint notice is not responding to the State Bar at all. A failure to timely respond to a grievance is also professional misconduct - in fact, failing to respond is a separate basis for professional discipline even if the grievance allegations wouldn’t have resulted in discipline. Unfortunately, some lawyers “freeze up” when they receive a grievance notice from the Bar and don’t respond at all. Not responding only makes the situation worse, especially if, for example, the grievance alleges “neglect” of a client or a “failure to communicate” with a client (i.e., not responding makes the underlying “neglect” and “communication” allegations more plausible to the Bar). See Rule 8.04(a)(8), Texas Disciplinary Rules of Professional Conduct.

3. Should I hire an attorney to represent me in the grievance system? As with any legal matter, it is best to receive professional advice from a lawyer who practices in the area of legal ethics and disciplinary procedures. There are a relatively small number of Texas lawyers who devote a significant percentage of their law practice to legal ethics and/or grievance defense cases. These lawyers may or may not also represent lawyer clients in legal malpractice matters as well. Either way, if you can afford even a limited consultation with an experienced legal ethics lawyer regarding the nature of the complaint, and your required written response to the Office of the Chief Disciplinary Counsel, that is the best course of action. Although some lawyers probably do well representing themselves in the grievance system, there are also lawyers who make their situation much worse by serving as their own defense counsel. Even a little legal—and objective—advice can be hugely helpful to a respondent lawyer. For example, the State Bar notice of a grievance does not specify which disciplinary rules might be implicated by the complainant’s allegations. Therefore, getting some professional help identifying the potentially applicable disciplinary rules is very useful. Finally, if the respondent lawyer has some disciplinary vulnerability, there is no benefit to learning that later in the process. Acknowledging—rather than needlessly denying—a problem can be an important consideration.

4. Is there a form for responding to a grievance? No, a well-written letter to the State Bar attorney or investigator who signed the notice letter to you is fine. Many grievance responses don’t require a lengthy response; however, respondents are required to answer truthfully and factually to all allegations. Ignoring or denying obvious allegations and facts is not a great strategy. Transmit your response to the grievance complaint so that the Chief Disciplinary Counsel’s Office receives it no later than the deadline (i.e., no “mailbox rule” here). Respondent attorneys are also required to mail a copy of their response to the complainant.

5. Can the complainant respond to my response to the grievance? Yes, the State Bar will inform the complainant that he or she can provide a written reply to the attorney’s response. And, the respondent attorney can reply to the complainant’s reply.

6. What happens next after the State Bar considers all of the responses and replies, if any? The Chief Disciplinary Counsel’s staff may conduct a further investigation of the allegations during the 60 day period between when the respondent attorney’s response is received by the Bar and the mandatory deadline two months later for the Bar’s “just cause” decision (the Bar could also begin its investigation earlier than the respondent attorney’s written response, but this would be very unusual). See Rule 2.12, Texas Rules of Disciplinary Procedure. If the Chief Disciplinary Counsel’s Office determines that there is “just cause” to believe that professional misconduct occurred, then the disciplinary case will proceed further under the Texas Rules of Disciplinary Procedure, as discussed below, beginning with Rule 2.14, Texas Rules of Disciplinary Procedure. If the Chief Disciplinary Counsel’s Office determines that there is not “just cause” to proceed, then the Bar submits its dismissal recommendation, along with copies of the grievance complaint, the respondent attorney’s response, any reply by the complainant and any further reply by the attorney, to a summary disposition panel, also as discussed below. See Rule 2.13, Texas Rules of Disciplinary Procedure.

7. The grievance complaint against me has been recommended for dismissal to a summary disposition panel. What do I need to do or what can I do next? Nothing really. The meeting of the summary disposition panel is not a hearing and no one is permitted to attend, except the panel members (one public member for every two attorney members—usually a three person panel only) and the State Bar staff. Instead, the panel members consider the documents provided by the Chief Disciplinary Counsel’s Office and its dismissal recommendation (usually presented by the Bar attorney who reviewed the case and made the “no just cause” determination). The panel votes on the Bar’s recommendation. If the panel affirms the dismissal recommendation, then the grievance is dismissed and that decision is not appealable by the complainant. If the panel reverses the dismissal recommendation, then the Chief Disciplinary Counsel’s Office must proceed with the case under the Texas Rules of Disciplinary Procedure, beginning with Rule 2.14; however, the Chief Disciplinary Counsel’s Office may ultimately recommend to its client, the Texas Commission for Lawyer Discipline, that the complaint not be prosecuted.

8. What happens if the Chief Disciplinary Counsel’s Office finds “just cause” to believe that I committed professional conduct? The Bar will send a written notice to the respondent attorney informing him or her that “just cause” has been found and presenting the respondent with an important choice: whether to have the disciplinary case proceed in state district court or before an evidentiary panel of the local grievance committee where the lawyer principally practices. This is called the “election” decision because the respondent lawyer can “elect” between state district court and evidentiary panel proceedings. There are important differences between the two proceedings that are best discussed with an experienced grievance defense counsel to help you determine which route is best for you; however, if the respondent attorney doesn’t affirmatively choose the state district court route, the disciplinary case will automatically proceed before an evidentiary panel of the local grievance committee. See Rule 2.15, Texas Rules of Disciplinary Procedure.

9. What if the complainant is not and never has been a client of mine? Can he or she still file a grievance? Yes, there is no “standing” requirement in the grievance system. Therefore, anyone—even a person without personal knowledge of the underlying allegations or events—can file a grievance in Texas. Nevertheless, clients or former clients of the respondent attorney file the vast majority of grievances. Additionally, the Chief Disciplinary Counsel’s Office can initiate a grievance complaint against a lawyer.

10. What happens after I choose between state district court and an evidentiary panel for my disciplinary case?  The Texas Rules of Disciplinary Procedure continue to govern the disciplinary proceeding. Just as with the Texas Rules of Civil Procedure, it is important to read the Rules and carefully observe the various requirements and deadlines. Begin with Rule 2.15, Texas Rules of Disciplinary Procedure and continue through Rule 3.16 for important requirements about disciplinary proceedings before State Bar evidentiary panels and state district courts.