Bar Counsel's Initial Investigation
Although Bar Counsel may initiate the grievance process based on information from other sources, most complaints against attorneys are filed by disgruntled clients. Whether expressed in a letter or on a form supplied by the Attorney Grievance Commission, the Commission refers each complaint to Bar Counsel upon receipt.
If the complaint is facially frivolous or obviously unfounded, Bar Counsel may dismiss it without any further investigation. Otherwise, Bar Counsel is obliged to investigate any allegation that an attorney has committed professional misconduct or is incapacitated and unable to competently practice law.
Unless the Commission extends the deadline, Bar Counsel has 90 days to complete her investigation. After writing to the complainant to explain the grievance process, Bar Counsel's next letter is directed to the attorney under investigation. This letter, which all attorneys open with trepidation, identifies the complainant, states the general nature of the infraction under investigation, and seeks the attorney's response to the complaint, which is typically enclosed. In some instances, Bar Counsel will specify the information and records most pertinent to the investigation and give the attorney a very limited amount of time to provide it.
These inquiries help Bar Counsel to screen out unwarranted grievances and to identify those meriting further action. Since Bar Counsel typically dockets one in four grievances for further proceedings, the manner in which an attorney responds to her initial inquiry may be the most critical step in the entire process. Beyond the ethical obligation to cooperate fully in disciplinary investigations, evasive or argumentative approaches only serve to invite greater scrutiny -- and, in some cases, harsher sanctions.
Based on the results of her initial investigation, Bar Counsel may:
1. Recommend that the Commission dismiss the complaint with or without a warning, reprimand the attorney, or seek approval of a Conditional Diversion Agreement with the attorney [See List of Sanctions & Dismissals];
2. File a Statement of Charges with the Commission to seek a peer review of the lawyer’s conduct; or
3. In very serious cases or in cases involving reciprocal discipline of an attorney sanctioned in another jurisdiction, ask that the Commission permit an immediate filing of a Petition for Disciplinary or Remedial Action to initiate formal prosecution before the Court of Appeals.
Confidential Peer Review Process
To start this process, Bar Counsel must file and serve a Statement of Charges summarizing the evidence obtained in her investigation, as well as the information submitted by the responding attorney.
Unlike the adversarial hearings once conducted by "inquiry panels" in Maryland, "peer reviews" involve informal meetings before a panel consisting of at least three members, including a non-lawyer. Panelists must hold this meeting within 60 days of their appointment. At least ten days before, the responding attorney may file a written response to the Statement of Charges to present his side of the story.
In sharp contrast with adversarial hearings in which each side calls and cross-examines witnesses, witnesses other than the complainant are not ordinarily permitted to attend, the rules of evidence do not apply, and no record is made of the meeting itself. Dispensing with these formalities, panelists let Bar Counsel, the responding attorney, and each complainant explain their positions, asking questions as needed to understand the facts of the case and ascertain what, if any, action is warranted.
In some cases, this informality enables panelists to work with each side to facilitate a resolution. In a manner resembling a mediation, panelists may exclude a complainant or meet separately with Bar Counsel or the responding attorney to help negotiate the terms of conditional diversion agreements, the language of proposed commission reprimands, or other solutions.
Although the panel does not ordinarily issue full opinions to explain its findings, and cannot bind the Commission to take certain action, its recommendations may have a significant impact on the ultimate resolution of the disciplinary process. Like Bar Counsel, the panel may recommend that the Commission dismiss the complaint with or without a warning, reprimand the attorney, approve a Conditional Diversion Agreement with the attorney, or petition the Court of Appeals for harsher sanctions. See List of Sanctions & Dismissals.