Disciplinary Counsel's Initial Investigation
Although Disciplinary 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 Board on Professional Responsibility, each complaint goes directly to the Office of Disciplinary Counsel for investigation.
Charged with the duty to investigate any allegation that an attorney has committed professional misconduct or is incapacitated and unable to competently practice law, the Board's Executive Secretary appoints a member of its Hearing Committee to oversee each investigation. This "Contact Member" has the power and duty to review and approve or suggest modifications of recommendations by Disciplinary Counsel for dismissals, informal admonitions, the institution of formal charges, and the deferral or abatement of disciplinary investigations pending the outcome of related criminal or civil litigation.
Most investigations start with a letter to the attorney. 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, Disciplinary 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 Disciplinary Counsel to screen out unwarranted grievances and to identify those meriting further action. Since Disciplinary Counsel must determine whether further investigation is warranted, 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.
With the approval of the Contact Member, Disciplinary Counsel may:
1. Dismiss the complaint;
2. Issue an Informal Admonition to the attorney - though this is the "lightest" of available sanctions, this admonition is a matter of public record. The rules do not provide for a "private" admonition or reprimand. Lawyers may decline an informal admonition by requesting formal hearings before a Hearing Committee. In that case, the admonition will be vacated and Disciplinary Counsel will institute formal charges;
3. Defer the investigation pending the outcome of related criminal or civil litigation; or
4. Proceed with Formal Charges against the attorney to pursue more serious sanctions. See List of Sanctions & Dismissals.
With the approval of a member of the Board on Professional Responsibility, Disciplinary Counsel may pursue alternatives to discipline in the form of a diversion agreement, or may negotiate any appropriate sanction with the responding attorney.