May 2007

Ethics and the Law

What You Should Know About Grievances Against Lawyers

by Felice P. Congalton

This article intends to give you the basics and to correct misconceptions about the processing of grievances against lawyers in Washington. The Washington State Supreme Court has exclusive respon-sibility for lawyer discipline. Rule 2.2 of the Rules for Enforcement of Lawyer Conduct (ELC) delegates authority to the Washington State Bar Asso-ciation (WSBA) for administration of the lawyer discipline system. The WSBA’s Office of Disciplinary Counsel receives and investigates grievances against lawyers to determine whether a lawyer’s conduct should have an impact on his or her license to practice law.

Before a grievance is filed

WSBA Consumer Affairs staff members in the Office of Disciplinary Counsel handle more than 10,000 telephone calls each year. Approximately 4,000 of these calls are inquiries about a lawyer’s public discipline history. Other calls are potential grievances against lawyers by their clients. Many of these potential grievances are resolved when Consumer Affairs staff members suggest alternatives like media-tion and fee arbitration and discuss the consequences of filing a grievance.

Consumer Affairs staff members also act as mediators be-tween lawyers and clients when entitlement to a client file is in dispute or when a lawyer fails to communicate with a client. In file disputes, a staff member provides ethical rules and WSBA Formal Opinion 181 to the lawyer who has custody of the file and suggests a resolution. In non-communication matters, a staff member contacts the lawyer to encourage a response to the client’s concerns. Rule 1.4 of the Rules of Professional Conduct requires a lawyer to keep a client reasonably informed about the status of a matter. Last year, more than 300 file disputes and more than 350 non-communication matters were mediated.

Grievances

Approximately 2,000 written grievances are filed against Wash-ington lawyers each year. Under the ELC, anyone can file a grievance against any lawyer. There is no requirement of “standing.” Grievances are most often filed by clients, former clients, and opposing parties. Additionally, the WSBA can open a grievance file in its own name based on public information, including newspaper articles and court decisions. Grievances primarily involve lack of diligence, competence, or communication. There is no time limit for filing a grievance, although timeliness may be considered in evaluation of a grievance. There is no filing fee. A grievance need not be submitted on a grievance form, but grievances are not accepted electronically.

Grievances dismissed without a lawyer’s response

When the WSBA receives a grievance, the goal is to address the matter as soon as possible with fairness to the lawyer and to the grievant. Under the WSBA Board of Governors’ aspirational timelines, a file remains in the screening (intake) phase no more than 60 days. A majority of grievances are dismissed in that phase.

Shortly after a grievance is received, a file is opened and a file number is assigned. Then, disciplinary counsel reviews the grievance. Often, a grievance is dismissed after the first review without disciplinary counsel’s request for a response from the lawyer. For example, grievances that are prima-rily file disputes and non-communication matters are dismissed with a letter to the grievant indicating that Consumer Affairs will follow up. Grievances with insufficient allegations of misconduct are dismissed after the first review. In these instances the first, and possibly only, notification that a lawyer receives about the grievance is a copy of the dismissal letter with a copy of the grievance attached.

Grievances are confidential. If a grievance is dismissed, no one calling the WSBA can discover that a grievance was filed. Generally, the grievance file and an electronic record of the grievance file are destroyed three years after the initial dismissal date.

Grievances requiring response

If a grievance is not dismissed after the first review, the lawyer receives a copy of a letter addressed to the grievant acknowledging receipt of the grievance. The letter notifies the lawyer that he or she must provide a preliminary written response. ELC 5.3(e) sets out a lawyer’s obligation to respond promptly. In most instances, the lawyer’s response is transmitted to the grievant and the grievant has an opportunity to reply.

Then, disciplinary counsel reviews the grievance, the lawyer’s response, and the grievant’s reply and decides whether the griev-ance should be dismissed or assigned to investigation. If the grievance is dismissed, the grievant receives a letter, with a copy to the lawyer, outlining the reasons for dismissal and explaining the appeal process.

After the dismissal letter

Within 45 days of dismissal, the grievant can ask a review committee of the Disciplinary Board to review the dismissal. The Disciplinary Board is a volunteer body with lawyers appointed by the WSBA Board of Governors and nonlawyers appointed by the Washington State Supreme Court. Review committees have two lawyer members and one nonlawyer member. There is no appeal if a review committee dismisses a grievance, but a review committee can, among other things, order more investigation.

If a grievance is investigated

If a grievance is assigned to investigation, or a review committee orders more investigation, the lawyer and the grievant are notified of the name of the disciplinary counsel handling the file. Under the WSBA Board of Governors’ aspirational timelines, most files remain in the investigation phase no more than 120 days. Many grievances assigned to investigation are dismissed eventually by disciplinary counsel and may be considered by a review committee as described above. Some grievances involving less serious misconduct result in a lawyer’s referral to diversion from discipline under ELC Title 6. If, after investi-gation, disciplinary counsel recommends an advisory letter, an admonition, or a hearing, the lawyer receives a letter with disciplinary counsel’s analysis of the ethical violations. A review committee then considers the matter.

If a lawyer does not respond to a grievance

If a lawyer does not respond to disciplinary counsel’s request for information, the lawyer receives a letter by certified mail remind-ing him or her of the requirements of the ELC and cautioning that a deposition may be scheduled for failure to respond. If a deposition is scheduled, the lawyer is liable for the costs of the deposition and attorney fees of $500. Failure to respond is, in itself, grounds for discipline and may also subject a lawyer to interim suspension.

For more information

An information sheet on the grievance process is mailed to every grievant and respondent lawyer at the beginning of the grievance process. The information sheet “Lawyer Discipline in Washington” is available on the WSBA website, www.wsba.org, or by calling the WSBA at 206-727-8207 or 800-945-9722, ext. 8207. 

Felice P. Congalton is WSBA senior disciplinary counsel/intake manager. She has been employed by the WSBA since 1995.