| Effective January 1, 2004, the local grievance panels may
dismiss complaints upon a finding of no probable cause of misconduct,
so long as the complaint does not allege a crime. P.B. 2 -29.
The decision of the grievance panel is final. 2-32(i). For the
first time since the grievance process was overhauled in 1986,
the grievance panels have actual authority in the grievance
process. Between 1986 and 2004, the grievance panels had a limited
investigatory role as all complaints were reviewed de novo
by the statewide grievance committee.
The new authority given to the grievance panels should expedite
the grievance system. For the individual respondent, the opportunity
for an early dismissal should encourage the respondent to
prepare the response with care and diligence. What does the
respondent need to know and do to prepare for the grievance
panel?
First, pursuant to - 2-32, the respondent must, within thirty
days of the date that the notification is mailed,
file:
- A biographical profile on a form provided by the statewide
bar counsel; and
- 2. A written response to the allegations in the complaint.
The response is then sent to the grievance panel to which
the complaint has been referred. The failure to file a timely
response is misconduct by itself. While the attorney respondent
will have an opportunity to show good cause for this - the
lawyer will have already missed an opportunity for dismissal
by the grievance panel. If there is good cause for not filing
within the deadline, make a timely request for an extension
of time under -2-32.
The written response is also the one and only opportunity
to be heard and to resolve the grievance early and successfully.
But be warned, it is also one of the best ways to guarantee
a finding of probable cause, depending upon the content and
caliber of the response. The grievance panel is not limited
to the allegations of the complaint, but may consider all
the information before in it in determining whether or not
there is misconduct. The response, which will become part
of the grievance file, should be given due consideration.
This is particularly critical given the short time, 30 days
from mailing of the notification, in which to prepare the
response.
The response should be just that: responsive. First, read
the complaint carefully. The respondent should not endeavor
to give an explanation of the entire relationship with the
complainant. A careful review of the complaint generally will
show that the focus of the complainant’s wrath is very
narrow. Second, read the Connecticut Rules of Professional
Conduct. The Rules were adopted in 1986 and are considerably
different from the Code of Professional Responsibility. One
of the first questions is whether the complaint arises from
an attorney-client relationship or some other connection (e.g.,
opposing party, family relation to a client, or a personal
contact). Many of the Rules of Professional Conduct only apply
to the attorney-client relationship.
The response should be simple and focused. It should set
forth concisely the facts which support the respondent’s
position or correct facts which are erroneously alleged in
the complaint. A word of caution it is not necessary to respond
to every fact, only those necessary to address the issues.
Filing a response which addresses facts or issues beyond those
raised by the complainant may inadvertently raise additional
grounds for the grievance. Do not use the response as an avenue
to express the difficulty of the relationship between the
complainant and respondent. That is evident by the very existence
of the grievance. Do not use the response as an opportunity
to characterize or personally criticize the complainant. It
is inappropriate and distracting.
A discussion of the necessary facts and a brief explanation
as to the ethical propriety of the lawyer’s conduct
is often sufficient for the response. If a client disputes
a fee arrangement, the response should discuss how the attorney’s
conduct complied with Rule 1.5. In other instances, the response
may require a brief discussion of the law to explain the propriety
of the conduct. The lawyers who serve on the grievance panels
have varied practices; neither they, nor the lay panelists,
are familiar with all areas of the law. Any discussion of
law should be limited to the narrow or unique procedure which
in itself authorizes the conduct.
A selection of exhibits which support the facts should be
attached to the response. It is not necessary to provide the
contents of the entire file, nor is it necessarily prudent
to provide nothing. Select exhibits with care and frugality.
For example, if a dispute concerns property of a client or
third party, a potential violation of Rule 1.15, attach selected
accountings, letters, or billing statements, which may demonstrate
where or with whom the property was held.
If the matter is not dismissed by the grievance panel, it
will be because there is an allegation of criminal conduct
or a probable cause finding of misconduct. The next step in
the grievance process is a hearing before the reviewing committee.
The probable cause finding is public. Alternatively, upon
the probable cause finding, the respondent may conditionally
admit misconduct and discuss and negotiate a sanction with
the newly created office of the disciplinary counsel. P.B.
2-82. These two distasteful avenues may be avoided by a thoughtful
and well drafted initial response to the complaint.
|
