Responding to a Grievance
Can a lawyer submit a preliminary response by email?
Should a lawyer submit original documents with a written preliminary response?
Should a lawyer submit an electronic recording with a written preliminary response?
How much time can a lawyer expect to have for submitting a preliminary response?
Can a lawyer ask disciplinary counsel not to send the preliminary response, or portions of the response, to the grievant?
What is the best way for a lawyer to ask disciplinary counsel to send a redacted response?
Can a lawyer assert any privileges to a response?
Can ODC refer a lawyer’s response to other authorities?
Can a lawyer choose to be represented by counsel for a preliminary response?
Can a lawyer charge a client for the time it takes to respond to a grievance?
Can a lawyer sue a grievant for statements in the grievance that the lawyer considers harmful or illegal?
Is a lawyer’s response to a grievance public information?
If ODC dismisses a grievance and the grievant requests review, how should a lawyer respond?
Yes. If the response is less than 100 pages a lawyer can respond by sending a response as an email attachment to firstname.lastname@example.org. The attachment can be PDF, Excel, or Word compatible up to 10 megabytes total. We do not accept files in JPG of GIF formats.
No. We will scan and then destroy the documents that a lawyer submits.
No. We generally do not accept cassette tapes, disks, flash drives, or other electronic recordings unless a lawyer provides a written transcript.
Generally, disciplinary counsel will not extend deadlines for a lawyer to submit a preliminary written response. Under ELC 5.3, a lawyer has a duty to furnish a prompt response to a request by disciplinary counsel for information relevant to grievances. If disciplinary counsel does not receive a lawyer’s preliminary written response to a grievance within 30 days of asking for it, disciplinary counsel will send a letter giving the lawyer 10 more days to respond.
Yes. Under ELC 5.1(c)(3), disciplinary counsel may withhold all or a portion of a response from the grievant if the response refers to information protected by RPC 1.6 or RPC 1.9 to which the grievant is not privy, information of a personal and private nature about the respondent or others, or if the interests of justice would be better served by not releasing the response.
To make sure disciplinary counsel sees a request for redaction and redacts the appropriate information, submit two responses – a redacted response that is clearly marked as appropriate for transmittal to the grievant and a separate un-redacted response that clearly indicates it is to be withheld from the grievant. Disciplinary counsel reviews a high volume of correspondence and it is otherwise easy to miss a request to withhold information, particularly if it’s in a footnote, in the middle of a paragraph, or in the last line of a response. Make sure any request for redaction is clear and obvious.
Yes. Under ELC 5.4, a lawyer’s duty to cooperate is subject to the lawyer’s privilege against self-incrimination, where applicable. Although a lawyer may not assert the attorney-client privilege or other prohibitions on revealing information relating to the representation of a client as a basis for refusing to provide information, nothing in the ELC waives or requires waiver of any lawyer’s own privilege or other protection as a client against the disclosure of confidences or secrets.
Yes. With some exception, ODC can release information from its files to authorities in any jurisdiction authorized to investigate alleged criminal or unlawful activity, judicial or lawyer misconduct, or disability. See ELC 3.4(h).
Yes. Under ELC 2.13, a lawyer may be represented by counsel.
No. Generally, under ELC 2.13, a lawyer may not seek to charge a grievant a fee or recover costs from a grievant for responding to a grievance.
No. Under ELC 2.12, communications to disciplinary counsel acting under authority of the ELC are absolutely privileged and no resulting lawsuit may be filed against a grievant providing information.
ODC will keep a lawyer’s response to a grievance confidential at the time it is submitted, although it might become public depending on the disposition of the grievance. Nevertheless, ODC cannot restrict a lawyer’s ability or a grievant’s ability to communicate about the grievance or the lawyer’s response to the grievance to third parties. See ELC 3.2.
A lawyer is not required to respond if the grievant requests review. If a lawyer chooses to respond, ODC will transmit the response to the grievant and review committee. If a lawyer asks to withhold information from the grievant, ODC will transmit the response to the review committee and notify the review committee that it contains a request to withhold. In those circumstances, the review committee will generally refer the grievance back to ODC for further consideration. Accordingly, a lawyer should carefully evaluate whether to submit information accompanied by a request that it be withheld from the grievant.
This form with relevant ELC information may be helpful.
© 2015 Washington State Bar Association, all rights reserved.