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 letter of cautionary advice or, with the attorney's consent, a letter of admonition, reprimand the attorney, or seek approval of a Conditional Diversion Agreement with the attorney. [See List of Sanctions & Dismissals in Maryland Attorney Discipline Cases];
2. File a Statement of Charges with the Commission to seek a peer review of the lawyer’s conduct; or
3. In certain cases involving criminal misconduct 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 Supreme Court of Maryland.
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 letters of cautionary advice or of admonition, may recommend that the Commission reprimand the attorney, or may recommend that public charges be filed in more serious cases. If the panel thinks that a Conditional Diversion Agreement may rectify the attorney's conduct, it can encourage the parties to agree to such a resolution. But the rules do not offer the panel the option of recommending a "CDA." See List of Sanctions & Dismissals.
How Long Will this Process Take?
The short, but unsatisfying answer: It takes a long as it takes.
There are deadlines embodied in the Maryland Rules, but they all let the Commission extend investigations as necessary. Although Bar Counsel is supposed to "complete an investigation within 120 days after docketing the complaint," the rules don't provide a deadline for "docketing the complaint" after a grievance is filed. Once Bar Counsel notifies the lawyer that the matter has been "docketed" for further investigation, the Commission will often grant numerous extensions thereafter "for good cause shown" — except that this "good cause" is never shown to the attorney under investigation. In practice, docketed files may linger for many months (sometimes more than a year) before the investigation is "completed."
At that point, Bar Counsel may dismiss the case, may settle the case with the lawyer as set forth above, or may file a "Statement of Charges" to trigger a confidential peer review process. Absent extensions, which are less frequent by this point, things move faster. Panels usually meet within 90 days after the statement of charges is filed, and make a recommendation within 30 days or less. Once it receives this recommendation, the Commission will consider it at its next scheduled meeting and advise the attorney of its decision shortly thereafter, but typically in less than 60 days. Thus, while it's impossible to predict how long Bar Counsel's investigation may take, the peer review process usually takes four to six months.