1973, August, Pg. 7. A Survey of Grievance Complaints Filed Against Colorado Attorneys: 1971-1972.

• Author: by Frank Plaut

2 Colo.Law. 7

The Colorado Lawyer

1973.

1973, August, Pg. 7.

A Survey of Grievance Complaints Filed Against Colorado Attorneys: 1971-1972

7Vol. 2, No. 10, Pg. 7A Survey of Grievance Complaints Filed Against Colorado Attorneys: 1971-1972by Frank PlautDuring calendar 1971 and 1972, the Colorado Supreme Court and its Grievance Committee took final action on 408 grievances filed against attorneys. Discipline was administered in connection with 84 (20%) of these grievances, involving a total of 72 attorneys. This survey, it is hoped, will illustrate to the practicing attorney the types of cases and activities which lead to the filing of grievances and to disciplinary action.

Since all grievance matters are confidential (Rule 259, Colorado Rules of Civil Procedure) and the files are available only to the Supreme Court and its Grievance Committee, each individual case was reviewed by the writer. No files were reviewed by, or made available to, any other person.

In dealing with the available data, certain statistical approaches have been taken which should be spelled out. If a grievance arose from a matter in which two or more attorneys worked together and which might otherwise have been handled by a single attorney, the matter is treated herein as a single grievance. If concerted action between two or more attorneys was in itself the basis for the grievance, the matter is treated as a separate grievance as to each attorney. If a complaint alleged two or more distinct kinds of misconduct, each separate allegation of misconduct is treated as a separate grievance. Where complaints alleged a variety of misconduct, the writer has made a "judgment call" as to the real and basic nature of the complaint. Grievances which were withdrawn by the complainant are shown as having been dismissed after informal investigation.

"Disciplinary action" as referred to in this survey includes private discipline administered by the Grievance Committee (letter of admonition) as well as discipline administered by the Supreme Court after consideration of the recommendations of the Grievance Committee, which may be either private (private censure), or public (public censure, suspension, or disbarment).

Nature of Services Giving Rise to GrievancesAlthough the survey yielded much information which cannot be presented here, a few statistics relating to the type of legal services which give rise to grievances are set forth below. Various interpretations may, of course, be given to these figures. For example,

8what is the reason for the high number of grievances filed in divorce cases? Is it the frequently acrimonious relationship existing between the litigants? Does it have to do with their inexperience in dealing with counsel? Is it because a great many of the cases handled by most lawyers are in fact divorce cases? Or is it a combination of the foregoing and any one or more of a number of other reasons?

More than two-thirds of all grievances are related to legal services in six areas of practice, some of which are admittedly broad. One hundred seven grievances (26%) arose from practice in the area of domestic relations. Other areas of practice giving rise to a substantial number of grievances are: wills and estates, 40 grievances (10%); criminal law, 37 grievances (9%); business law, 31 grievances (8%); injury claims, 31 grievances (8%); and collection cases, 28 grievances (7%).

Of the 107 grievances which arose in the area of domestic relations, only 14 (13% of all grievances arising in domestic cases) resulted in disciplinary action based on various types of misconduct, whereas discipline was invoked in 20% of the total of all grievances studied. It would thus appear that the incidence of non-meritorious grievances is substantially higher for domestic cases than it is for the average of all cases studied. Of the 67 cases in which grievances were brought by the opposing party, 28 cases (42%) involved domestic cases; of those 28 cases. 26 (93%) were dismissed.

A total of 40 grievances arose from practice in the area of wills and estates. Of these, 15 (38%) involved complaints of delay; eight of these complaints of delay resulted in disciplinary action. Only one grievance in the area of wills and estates involved alleged misapplication of funds, and that grievance was dismissed after informal investigation.

A total of 37 grievances involved practice in the area of criminal law. Of these, 15 (40%) were complaints by clients alleging lack of adequate representation; only three of such complaints were found to warrant the imposition of discipline.

Collection cases accounted for 28 (7%) of all grievances. In this area, 15 (54%) of all complaints were made by the opposing party or his attorney, and seven of the complaints made by the opposing party or his counsel alleged rudeness, lack of courtesy, excessive zeal, or the threat of criminal prosecution on the part of the attorney complained against. Six of these seven grievances were dismissed. Fourteen of the 67 cases in which grievances were brought by the opposing party (21%) involved collection cases; of these, more than three-fourths were dismissed.

Grievances Analyzed by Type of MisconductThe categories of misconduct set forth below are of necessity somewhat arbitrary, and can and should most certainly be refined if similar surveys are to be considered in the future. As will be seen from the tables, grievances concerning each type of alleged misconduct have also been categorized by identity of complainant (e.g., client, opposing counsel, judge), by type of legal service involved (e.g., business, criminal, collection, domestic, wills and estates), and by whether or not litigation of a clearly adversary nature was involved (as opposed, for example, to the type of "litigation" involved in a simple, uncontested probate matter).

Most categories of misconduct are self-explanatory. Three, however, may require some definition. The category of "lack of adequate representation" includes allegations of misconduct such as professional negligence, lack of sufficient zeal in representing the interest of a client, and simply not doing an adequate job; other more specific allegations of improper representation, such as delay, misapplication of funds, or failing to keep a client advised, are set forth in separate categories. "Abuse of legal or judicial process" includes allegations of misconduct such as disrespect of a court, misrepresentations to a court, filing of a baseless claim, using or threatening to use the machinery of the Grievance Committee to obtain a desired result in a pending case, or using legal tactics

9which the complainant believes to be improper. "Publicity" includes the self-laudatory or self-advertising type of publicity (17 grievances), as well as trial publicity (2 grievances).

In some categories of misconduct, either very few grievances exist, very few grievances have resulted in disciplinary action, or both. Some of these categories involving relatively few grievances are nonetheless reviewed separately herein, because it is believed that the simple fact that only a small number of grievances existed in such categories may in itself be of interest to the reader.

A summary of the types of misconduct which resulted in discipline (more than one type of misconduct on some occasions being involved in the disciplinary action brought against a given attorney) is as follows:

Type of Misconduct Resulting in Discipline No. of Cases Percent of Cases

Delay2226%Publicity (both self-laudatory and trial publicity)1113%Lack of adequate representation1012%Abuse of legal and judicial process87%Misapplication of funds67%Dishonesty (other than misapplication of funds)34%Direct contact with opposing party represented by counsel34%Failure to meet personal financial obligations 3 4%Conflict of interest 3 4%Failure to keep client informed 3 4%Improper activities in business dealings with client 3 4%Threat of criminal prosecution 2 3%Rudeness, lack of courtesy, excessive zeal23%Conviction of felony involving moral turpitude11%Breach of confidence11%Grossly excessive or improper attorney's fees or costs11%Miscellaneous23%Total84104%*

*Because of rounding percentages up or down, the total percentage exceeds 100%.

The largest number of grievances (121, which is 30% of all grievances) involved allegations of lack of adequate representation by counsel. Although some discipline was imposed for lack of adequate representation, including disbarring of one attorney and suspension of three, 92% of all complaints filed in this area were dismissed. Nearly all of the complaints of lack of representation were made by the client of the attorney

10complained against. Almost one-third of the complaints of this type were made in domestic relations cases. (See Table 1, below, for details.)

Allegations of...