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January 17, 2014

Friday 5: Things to Know About Responding to a Grievance

by contributor
confidential letter
What should a lawyer do if he or she receives a confidential envelope from the WSBA with a grievance inside?

confidential letterThe WSBA Office of Disciplinary Counsel opens approximately 2,200 grievance files against Washington lawyers each year. ODC notifies lawyers about grievances by mail. So what should a lawyer do if he or she receives a confidential envelope from the WSBA with a grievance inside? Although there are many considerations and this is not an all-inclusive list, here are five recommendations that most lawyers will find useful:

  1. Open the envelope. Don’t ignore the envelope from WSBA marked “Confidential.” When disciplinary counsel screens grievances, disciplinary counsel will either dismiss the grievance or require the lawyer to respond. Open the envelope to find out what the letter says.
  2. If disciplinary counsel requires a preliminary written response, plan to provide a timely response. Furnishing a prompt response is a professional duty. See Rule 8.4 of the Rules of Professional Conduct; Rules 1.5 and 5.3 of the Rules for Enforcement of Lawyer Conduct. Under ELC 5.3(h), if there’s no response within 30 days, disciplinary counsel will remind a lawyer that after another 10 days, disciplinary counsel can serve a subpoena for deposition, which can be conducted at the lawyer’s expense at any location in Washington. If a lawyer fails to comply with a subpoena, disciplinary counsel can petition the Supreme Court for an order suspending the lawyer from practice until there’s cooperation. And failure to cooperate fully and promptly with an investigation can be independent grounds for discipline. See ELC 5.3(h)(3). By contrast, if a lawyer responds to a grievance, the information provided might help disciplinary counsel determine that the grievance should be dismissed.
  3. Read the frequently asked questions and answers on wsba.org about responding to a grievance. On the WSBA website, you will find important information about the lawyer discipline system, the grievance process, and guidelines for a lawyer’s response. This will provide a framework for understanding the rules and procedures.
  4. Review the RPC, prepare, and submit a response. Read the RPC applicable to the grievant’s allegations. A lawyer might want to discuss his or her response with a trusted colleague, and consider consulting with or hiring counsel. In response, focus on the issue(s) raised by the grievant, document the answer, and provide disciplinary counsel with the context.  Clearly identify any information that should be withheld from the grievant for reasons in ELC 5.1(c)(3), which include information protected by RPC 1.6 or RPC 1.9 to which the grievant is not privy and information of a personal and private nature. Be thorough and accurate.
  5. Keep a copy of all information related to the grievance indefinitely. If disciplinary counsel dismisses the grievance, the grievant has a right to appeal the dismissal and a lawyer might want to — or be required to — provide additional information. ODC typically destroys grievance files three years after the first dismissal date, and ODC will have no record of the grievance if, in the future, the grievant complains again.

If the lawyer can provide disciplinary counsel with a record of the previously dismissed grievance, this might accelerate the resolution of a new complaint.

For additional information, see the Rules for Enforcement of Lawyer Conduct (ELC). Note that the Supreme Court adopted substantial amendments to the ELC effective Jan. 1, 2014.

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