A Peek Behind the Curtain: the Texas Attorney Grievance Process in a Nutshell
The attorney grievance process is not something most lawyers want to think about. But chances are, even if you have never personally been involved in the grievance process, you know someone who has. Or maybe you’re a little curious about what goes on “behind the scenes” of the attorney discipline system. Either way, given the potential ramifications of a grievance to a lawyer’s livelihood, and the unique procedures and deadlines entailed, it is important to know what to expect should you ever receive that dreaded certified letter from the Office of Chief Disciplinary Counsel.
WHO CAN FILE A GRIEVANCE?
Anyone who has knowledge of attorney misconduct, including clients, members of the public, lawyers, judges, etc., have the right to file a grievance against a Texas attorney. There is no “standing” or “privity” requirement.
THE FIRST STAGE: CLASSIFICATION
Once a grievance is filed, the Chief Disciplinary Counsel (“CDC”) has 30 days to “classify” the grievance, meaning it must determine whether the grievance, on its face, alleges professional misconduct or a disability. If the grievance does allege professional misconduct or a disability, it will be upgraded to complaint status. If it does not, it will be dismissed as an Inquiry. Grievances alleging minor misconduct may also be referred, at CDC’s discretion, to the Client Attorney Assistance Program, which will attempt to resolve the issue between client and attorney outside of the grievance process.
If the grievance is dismissed as an Inquiry, the Complainant has the right to appeal the decision to the Board of Disciplinary Appeals (“BODA”). If BODA affirms the dismissal, the Complainant may amend the grievance one time by providing new or additional information. If the amended grievance is dismissed, the Complainant may again appeal that determination to BODA.
Approximately 70% of grievances are dismissed at the classification stage.
Common reasons why a grievance might be dismissed at classification are:
The grievance alleges something other than professional misconduct or a disability. E.g., it complains about the outcome of a case or that the attorney was “rude.”
The grievance is barred by the 4-year statute of limitations.
The Respondent attorney has died, been disbarred, or resigned.
The grievance concerns a person who is not a licensed Texas attorney.
The grievance is a duplicate of, or identical to, a pending grievance.
THE SECOND STAGE: INVESTIGATION
If a grievance is upgraded to complaint status, the Respondent will be notified, provided a copy of the grievance, and given 30 days to file a written response to the allegations. CDC has 60 days from the date the attorney’s response is due to make a determination of “Just Cause,” although that time is extended if CDC sets the case for an Investigatory Hearing or issues Investigatory Subpoenas.
Whereas the classification stage is limited to ascertaining whether a rule violation has been properly alleged, the investigation process seeks to determine whether there is sufficient evidentiary support for the allegations to warrant a finding of “Just Cause.” As part of its investigation, CDC may interview witnesses, subpoena bank records or other relevant documentation, and review court records, correspondence, files, settlement checks, etc.
This is a critical stage of the process and should not be taken lightly. Every effort should be made to properly and fully rebut the allegations and avoid a Just Cause finding, as once a case enters formal litigation, it will be much more difficult to obtain a dismissal and may entail costly and burdensome litigation.
INVESTIGATORY HEARINGS & SUBPOENA POWER
Effective June 1, 2018, amendments to the Texas Rules of Disciplinary Procedure instituted some important changes to the grievance process. Now, during the investigation stage, CDC may issue subpoenas for documents, electronic information or tangible things and/or to compel the attendance of witnesses (including the respondent attorney) at an Investigatory Hearing.
Investigatory Hearings are somewhat informal hearings aimed at facilitating the investigation and allowing for possible early settlement of the case. These hearings are presided over by a panel of local grievance committee members. The Respondent, the Complainant, and potentially other witnesses may appear and provide testimony or answer questions of the panel. An Investigatory Hearing may result in a negotiated sanction, a finding of Just Cause, or a dismissal of the complaint.
THE FINAL STAGE: FORMAL LITIGATION
If the investigation results in a finding of Just Cause without a negotiated sanction, the case will proceed into litigation, at which point the Respondent can choose to have the case heard before a grievance committee or in district court. Formal discovery ensues and settlement negotiations may take place. If no settlement is reached, the case will be set for trial.
Trial proceedings before a grievance committee are confidential unless and until a public sanction is issued (at which point certain information becomes public). In addition, proceedings before a grievance committee can result in a private reprimand, an option that is not available in district court. Other possible sanctions available in either domain include a public reprimand, a probated suspension, an active suspension, a combination of probated and active suspension, or disbarment.
Some cases that enter formal litigation are diverted to the Grievance Referral Program, a program designed to assist lawyers who have impairment or performance issues and who enter the disciplinary system as a result of minor misconduct. In exchange for a dismissal of the underlying complaint, the Respondent attorney agrees to complete a remedial program individually tailored to the lawyer’s needs.
OTHER STATISTICS
The most frequently sanctioned misconduct is lack of communication with the client.
In the 2019-2020 Bar year, civil practitioners received the highest number of sanctions, followed by family law and criminal law practitioners.
In the 2019-2020 Bar year, 7505 grievances were filed, and a little over 300 sanctions were imposed. The number of sanctions imposed was lower than usual due to the impact of Covid-19 on disciplinary litigation.
The vast majority of grievance cases entering formal litigation proceed through the evidentiary process. Roughly 10% or less of Respondents opt to have their case heard in district court.
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CONCLUSION
The attorney grievance process is cloaked in secrecy, and can be quite intimidating if you are unfamiliar with the process or what to expect. But by educating yourself on the procedures, being responsive and complying with deadlines, you greatly increase the odds of a successful outcome.