Attorney Grievance Commission Inquiries
by Alvin I. Frederick, Esq., Eccleston and Wolf

About six years ago I wrote a piece entitled "Is that Letter for Me" dealing with how attorneys should respond to inquiries from the Attorney Grievance Commission. Since then, there has been one major innovation and a significant rules change that warrant updating the article.

One out of Ten

Statistically one out of every ten lawyers in the State of Maryland will receive an inquiry from the Attorney Grievance Commission this year. Most of those will be screened and dismissed by the Bar Counsel within 30 days of filing.

Check the Policy

Most professional malpractice insurance policies now provide a defense for disciplinary matters. In most cases the defense is provided without triggering a deductible. The policies put a financial cap on the defense obligation allowed, but the cap is significant. Accordingly, the first thing anyone getting a letter from Bar Counsel should do is to check their professional malpractice policy. If there is coverage, promptly notify the carrier and request counsel be assigned. Do not delay. The new rules have severe time constraints. Bar Counsel no longer has the luxury of granting long extensions. Because there are significant time constraints on Bar Counsel, only limited extensions will be allowed.

Check the Re

Bar Counsel's letter to you will feature a Re line which will contain a series of numbers, i.e., BC Docket 2002-351-22-13 or 2002-0-22-13. The number after the year has significance.

An "O" indicates that the complaint has not as yet been docketed. This means that a well crafted response to the inquiry may convince Bar Counsel to dismiss the matter. As indicated approximately 75% of all complaints are screened out in this process. Well crafted does not mean an attack on the complainant, the system or anyone else. It does mean a reasoned, lawyerly explanation for why the conduct complained of is not subject to discipline.

I have re-drafted my original article, with updated citations, because I still believe it sets appropriate parameters for an initial response to Bar Counsel.

In calmly reviewing your mail you notice that one envelope is marked "Private and Confidential." It is not, however, until you notice that "Attorney Grievance Commission" is boldly printed above the return
address that the first hint of anxiety shoots through your system. In racing through the letter of inquiry, concern, anger and confusion probably compete for your center stage.

However, after these emotions begin to subside, a number of questions immediately arise. Who was it that caused this to occur? Why did this occur? Is there a legitimate problem which caused the complaint to be filed? What do I do now?

The Attorney Grievance Commission receives notice of all complaints, be they civil or criminal, filed against attorneys in our state. Accordingly, if an attorney has been sued, the Commission knows or will know about the claim and the chances of an inquiry are greatly enhanced. In the alternative, there may be no pending lawsuit and the inquiry letter may be your first notice of a potential problem. In either event, it is helpful to keep in mind that the Attorney Grievance Commission is charged with the duty and
responsibility of assisting the Court of Appeals in regulating the practice of law. Rule 16-711

The vast majority of lawyers in our state are highly skilled, competent and ethical. Unfortunately, there are a few lawyers who fail to meet the minimum standards required for our profession. It is Bar Counsel's duty to bring those individuals to the attention of their peers and the Court of Appeals. Maryland Rules 16-701 and 16-712. However, in order to identify the relative few attorneys whose conduct is deserving of some form of sanction, the Commission must investigate all colorable complaints. Hence, the inquiry letter from Bar Counsel is simply the Attorney Grievance Commission
doing its job.

Lawyers who receive an initial letter of inquiry from the Bar Counsel are immediately placed in a difficult position. Should a response be framed immediately? Should someone be consulted who is experienced in dealing with the Attorney Grievance Commission? Does the attorney-client privilege hamper the response to be made? What are my options if the complaint is wholly without basis, outrageous and false? What is the procedure followed by the Commission?

Starting off on the right foot

It is strongly suggested that the initial correspondence, and indeed all correspondence, from the Attorney Grievance Commission be dealt with in a timely fashion. Bar Counsel is required by court rule to investigate all complaints against attorneys. Rule 16-731(b). Nothing is worse than ignoring an inquiry or responding in an inappropriate or untimely fashion. Experience has shown that the office of Bar Counsel is exceedingly reasonable in permitting extensions to respond, so long as the extensions are timely requested, reasonable in length, and based on some legitimate need. As indicated, significant time constraints now exist. Extensions may be forthcoming but they need to be requested in writing, with a good reason (e.g., waiting for an insurer to assign counsel is a good reason). The consequence of either not responding to Bar Counsel, or responding late may be worse than the original complaint merits. See Attorney Grievance Commission v. Oswinkle, 364 Md. 182 (2001).

Should a lawyer who receives an inquiry from the Attorney Grievance Commission retain a lawyer to respond? In many instances, a direct, factually-based response may be well sufficient to cause dismissal of a complaint against a lawyer. For example, it is not uncommon for laypersons to complain about attorneys' fees. In most instances, these complaints are, in reality, civil and not ethical in nature. A short, simple response, assuming no prior history of similar complaints, is in many cases sufficient, and consulting counsel is unnecessary. It is however, suggested that a lawyer acting on his/her behalf in responding always do at least two things:

• Wait at least one full day and night before sending a response, and
  
  
• Have some other lawyer -- a friend, partner or colleague -- read the response. Of course, if insurance will provide experienced counsel at no initial cost to the lawyer responding, retaining a lawyer to help craft the initial response may be the best course of action.

Taking time to cool your heals

Why wait? It is not uncommon for anger to be the most prevalent emotion an attorney feels while responding to a baseless, frivolous complaint. Usually after a brief period of reflection, a lawyer's customary objective attitude returns and the tone and content of the response will be more appropriate. Bear in mind that Bar Counsel is not necessarily the adversary. Bar Counsel has a duty to inquire and should be treated with courtesy and professionalism. Displaying anger because Bar Counsel is doing its job will only injure your chances of a prompt and successful conclusion. The new rules portend a kinder, gentler approach to attorney discipline. The committee note to Rule 16-743 provides:

Committee note.
If a Peer Review Panel concludes that the complaint has a substantial basis indicating the need for some remedy, some behavioral or operational changes on the part of the lawyer, or some discipline short of suspension or disbarment, part of the peer review process can be an attempt through both evaluative and facilitative dialogue,
(A) to effectuate directly or suggest a mechanism for effecting an amicable resolution of the existing dispute between the lawyer and the complainant,
and (B) to encourage the lawyer to recognize any deficiencies on his or her part that led to the problem and take appropriate remedial steps to address those deficiencies. The goal, in this setting, is not to punish or stigmatize the lawyer or to create a fear that any admission of deficiency will result in substantial harm, but rather to create an ambience for a constructive solution. The objective views of two fellow lawyers and a lay person, express in the form of advice and opinion rather than in the form of adjudication, may assist the lawyer (and the complainant) to retreat from confrontational positions and look at the problem more realistically.

Considering the Committee which drafted the rule and note consisted of two of the seven judges of the Court of Appeals, the import of the note is not to be understated.

Why have another lawyer read the response prior to its being sent? Because it is very hard to be a lawyer and a client simultaneously. It is far easier to prepare a rational and complete response if someone you trust provides objective, useful and helpful suggestions.

Putting yourself in the hands of an attorney you trust

If the decision is to hire an attorney, should you limit your choices to those lawyers who regularly practice before the Commission? As with any area of the law, those individuals who have experience may be more efficient and should be more effective. However, with your own career and privilege to practice law on the line, the objective is to be presented by the one in whom confidence is reposed, and from whom advice will be readily accepted, regardless of prior experience in the defense of Attorney Grievance matters.

Moreover, some complaints are so weak as not to mandate the retention of someone versed in the intricacies of this area of the law. In those cases, an objective sounding board is the real need. However, with any serious case, counsel well-versed in this area of the law will provide you with the best chance of a successful conclusion.

Defending yourself in the light of attorney-client privilege

May an attorney disclose information that would otherwise be protected from disclosure by the attorney-client privilege in defending one's own interests to the Attorney Grievance Commission? Notwithstanding the fact that the attorney-client privilege belongs to the client, and may not ordinarily be waived by the attorney, the answer is unequivocally yes. Rule 1.6(b)(3) explicitly permits disclosure. Response to an inquiry from the Attorney Grievance Commission is without question a matter for the attorney to defend. It should be cautioned, however, that Rule 1.6(b)(3) is not carte blanche for an attorney to disclose everything he/she knows about the client that is derogatory or less than flattering. Rather, the intent is to enable an unfettered defense of the attorney as opposed to an attack upon the client. While no court has specifically spoken to this narrow issue in Maryland, caution and common sense dictate limiting disclosure to the extent necessary and reasonable to defend the attorney's position.

Striking back against unfounded complaints

In most instances, after a well-framed response is forwarded to the Commission, the inquiry may well be dismissed. At that point, many attorneys want to know what options they possess in striking back at the individual who filed the unfounded complaint. The short answer is probably none.

Rule 16-723 provides that all proceedings before the Attorney Grievance Commission are private and confidential and my not be disclosed unless there is some record of those proceedings before the Court of Appeals in Maryland. The Court of Appeals in Attorney Grievance Commission v. Strathen, 287 Md. 111 (1980) recognized that the privilege of confidentiality is intended to benefit the accused attorney, and therefore may be waived by that attorney.

Rule 16-723(b) provides certain exceptions to confidentiality as well. Thus, the complaint is protected, at a minimum, by a qualified privilege to report suspected improper activity to the appropriate agency. Indeed, some might argue that the privilege is absolute in that the Attorney Grievance Commission is at a minimum a quasi judicial entity such that judicial privilege may apply.

Lastly, in our society attorneys are not favored litigants. Experience has shown juries are not usually sympathetic to the plight of lawyers, especially in defamation or misuse of civil process actions. While this view may, in the future, change, it is unfortunately a current fact of life.

The procedure involved in Attorney Grievance matters is set forth in the Rule 16-700 et seq. Generally before an action is filed in the Court of Appeals, at least in most circumstances, lawyers are given the opportunity to respond to the Commission, to be heard by their peers and the public in a non-evidentiary proceeding. If charges are filed, there is a full hearing before a judge who is designated by the Court of Appeals to act as fact finder and to make recommendations. Finally there is an opportunity for full argument before the Court of Appeals in Maryland.

Doing unto others

One last observation related to civility and professionalism. For a variety of reasons, some attorneys view the Attorney Grievance Commission and Bar Counsel as storm troopers charged with some vile mission. In reality, these individuals are attorneys who are simply doing their jobs.

The job they are doing benefits all competent and ethical lawyers by increasing the public's confidence that the legal profession takes the Rules of Professional Conduct seriously. When bad apples are not tossed out of the basket, the public's perception of our profession is damaged. It should be remembered that Bar Counsel can be persuaded, as can any potential adversary, by cogent arguments based on reasonable interpretation of law and fair support by the facts.

Courtesy and professionalism travel in both directions. Attacking Bar Counsel for doing its job will only inhibit your ability to make your case in a non-adversarial atmosphere. One who has been treated courteously and professionally generally responds in kind. And in the end analysis, that's what every attorney wants.

Why not invest 30 minutes and re-read the Rules of Professional Conduct for Maryland Lawyers and the new procedural rules for disciplinary proceedings? It will be time well spent.

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