Responding to or Defending a Grievance before the North Carolina State Bar
No attorney ever wants to get a certified letter from the North Carolina State Bar. If you received a letter from the State Bar or one of its local bars concerning a grievance, you may be uncertain about what to do next, what the procedures are and what are the possible results.
You also may be trying to decide whether, as an attorney, you need independent representation in responding to or defending a grievance. Our firm routinely represents fellow attorneys like you in responding to and defending grievances. Representation at the grievance stage is significantly less expensive than in a formal evidentiary hearing. The investment in protecting your law license and livelihood generally is more cost-effective in the earlier stages. Additionally, our firm’s best opportunity to assist you in obtaining a favorable or acceptable outcome is in these early stages.
In the sections below, we attempt to address some of your questions and explain the general grievance process, procedures and possible results.
State Bar Grievance Committee and Local Judicial District Grievance Committees
As background, the State Bar’s Grievance Committee is responsible for making all decisions on grievances and alleged violations of the North Carolina Rules of Professional Conduct. The Grievance Committee has forty-five members: the vast majority of Committee members are practicing lawyers elected by their peers from each judicial district who serve along with three public, non-lawyer members.
The Grievance Committee is divided into three advisory subcommittees. Each subcommittee has direct responsibility for reviewing approximately 1/3 of the total grievances and recommending appropriate resolutions to the full Grievance Committee. The full Committee votes upon the subcommittees’ recommended resolutions. The State Bar’s legal department, the Office of Counsel, serves as counsel to the Grievance Committee and has over ten staff attorneys. Specific staff attorneys with the Office of Counsel are assigned to each of the three subcommittees.
In addition to the State Bar’s Grievance Committee, several local district bars have established judicial district grievance committees, generally in larger metropolitan areas. The district committees investigate some of the grievances filed against lawyers who practice in those particular districts. Some grievances are filed directly with the district committees and others are referred to the districts after they are filed with the State Bar. The district committees submit reports to the Office of Counsel detailing their investigations and recommending whether the Grievance Committee should or should not find probable cause to believe the respondent lawyers violated one or more Rules. District committees only make recommendations and do not impose discipline or dismiss grievances.
Responding to a Grievance and State Bar Investigation
If you received a Letter of Notice and accompanying Substance of Grievance from the State Bar office in Raleigh, this generally means the following has occurred: A staff attorney has reviewed the grievance and determined that the allegations, if true, state a violation of the Rules of Professional Conduct and evidence available with the grievance does not conclusively disprove those allegations. For litigators, this initial analysis is analogous to a Rule 12(b)(6) motion to dismiss standard. The staff attorney must assume the truth of the allegations initially, unless evidence then available conclusively disproves them. In other words, at this stage, the State Bar has not made or attempted to make any findings or conclusions concerning the truth or veracity of those allegations.
The deadline to submit a written response is within 15 days from receipt of the Letter of Notice by certified mail. It is important that you know the date that the letter was received. The State Bar typically grants an initial extension of time to respond upon request. For matters received directly from the State Bar in Raleigh (as opposed to a local bar committee), a Substance of Grievance should be included with a Letter of Notice. This substance represents a summary of the allegations the responsible staff attorney thought was relevant in the grievance. Although you typically can obtain a copy of the original grievance, unless it was filed confidentially pursuant to an obligation to report, a staff attorney already has made determinations about what allegations s/he thought were pertinent.
In drafting a response to a grievance, it is important for you to include all information and documentation necessary to fairly and fully respond to the allegations. However, it is equally important for you to include only the pertinent information and documentation. We help our attorney clients make these judgments and determinations from an objective standpoint and with knowledge and experience of the process in defending grievance matters. We also can help shoulder the practical and emotional burden of defending against a grievance.
After receiving the initial response, the responsible staff attorney may request additional follow-up information from the respondent attorney. The State Bar Office of Counsel also has a staff of over ten investigators to whom the matter can be referred to collect additional information. Whether additional information and investigation is necessary and how much needs to be collected varies tremendously depending on the types of cases. For example, allegations involving the attorney’s trust account typically involve significant investigation and the involvement of at least one of the Bar’s investigators.
Grievance Committee Decisions and Possible Discipline and other Outcomes
After the responsible staff attorney determines that all necessary information has been obtained, s/he prepares a report of counsel to the Grievance Committee. This report summarizes the complaint, response, evidence, disciplinary history and a recommended resolution or sanction.
- If the evidence does not support a finding of probable cause that the respondent attorney violated the Rules of Professional Conduct, the Office of Counsel recommends that the grievance be dismissed without further action. If the Chair of the Grievance Committee and the Chair of the subcommittee assigned to the case agree, the grievance is dismissed. Grievances recommended for dismissal do not need to await the next quarterly meeting of the Grievance Committee for a disposition.
- If the Office of Counsel concludes there is probable cause to believe the respondent violated one or more of the Rules of Professional Conduct (or that respondent should be warned or cautioned), the grievance will be considered by the Grievance Committee at its next quarterly meeting.
At the Grievance Committee’s quarterly meeting, each grievance is considered on the written record, consisting of the complaint with any attachments, the response(s) with any attachments, the results of any additional investigation conducted by the Office of Counsel, and the Report of Counsel. Live testimony is not received and the respondent and his or her counsel are not permitted to attend.
Grievances considered at the quarterly meetings are resolved by the Grievance Committee taking one of the following actions:
Dismiss the Grievance:
- The Grievance Committee can disagree with the Office of Counsel’s recommendation and dismiss the grievance.
- The Committee also can dismiss a grievance with a Letter of Caution when no Rule violation occurred but the lawyer’s conduct was inconsistent with accepted professional practice. The respondent cannot reject a Letter of Caution.
- The Committee can dismiss a grievance with a Letter of Warning when the lawyer committed an unintentional, minor or technical Rule violation. The respondent can reject a Letter of Warning but then the matter would go to the DHC for a public, formal hearing.
Note: Letters of Caution and Letters of Warning do not constitute discipline and are not public.
Impose Discipline: When the Grievance Committee finds probable cause to believe that more than an unintentional, minor or technical Rule violation occurred and it believes the appropriate discipline is less than suspension or disbarment, the Grievance Committee can impose three levels of discipline: admonitions, reprimands and censures.
- An Admonition is a permanent but private discipline imposed when the attorney committed a minor violation of the Rules of Professional Conduct. It is not published but may be considered in any later disciplinary proceedings against the respondent attorney. The complainant is advised of the admonition and a summary but is not given a copy.
- A Reprimand is permanent and public discipline imposed when the attorney has caused harm or potential harm to a client, the administration of justice, the profession or members of the public. The reprimand is sent to the complainant.
- A Censure also is permanent and public discipline imposed when the respondent attorney has caused significant harm or potential significant harm to a client, the administration of justice, the profession or members of the public but public protection does not require suspension or disbarment. Censures are sent to the complainant, the Clerk of Superior Court in the respondent’s home county and any county in which respondent maintains a law office and to the clerks of the North Carolina Court of Appeals, the North Carolina Supreme Court, all the United States District Courts in North Carolina, the Fourth Circuit Court of Appeals, and the United States Supreme Court.
Note: Notices of both Reprimands and Censures appear in one issue of the quarterly State Bar Journal and are posted permanently on the State Bar’s website.
- A respondent attorney who disagrees with the Grievance Committee’s determination on the written record may reject an Admonition or a Reprimand and may decline to accept a Censure. If so, the Office of Counsel will file a complaint in the Disciplinary Hearing Commission for a full evidentiary hearing.
- Requests to reconsider discipline issued by the Grievance Committee are technically possible but rarely granted. We encourage potential clients to get our firm involved in defending a grievance matter as early as practical and not wait until proposed discipline is imposed. Notwithstanding, we do assist lawyers who have received proposed discipline in trying to work out an acceptable resolution in terms of the language of the proposed discipline and on occasion to request reconsideration. Our firm’s best opportunity to assist clients in achieving an acceptable resolution generally is to be involved as early in the grievance process as possible.
Refer to the Disciplinary Hearing Commission: The Grievance Committee can directly refer a grievance to the Disciplinary Hearing Commission (DHC) when it believes an evidentiary hearing is necessary to determine whether misconduct has occurred or when it believes a suspension or disbarment is likely the appropriate discipline. The Grievance Committee does not have authority to impose suspension or disbarment. The Grievance Committee most often refers to the DHC cases involving misappropriation of client or fiduciary funds, criminal acts or other acts of dishonesty, and serial neglect of professional responsibilities, including failing to communicate with clients and failing to respond to inquiries from the State Bar.
Note: Grievance proceedings are confidential unless a lawyer receives public discipline from the Grievance Committee or unless a formal disciplinary complaint is filed against a lawyer with the DHC. The grievance process can take anywhere from several months to a year on average, or in unusual cases several years, before a final decision is made.