CHAPTER 7 - 7-2 FILING OF COMPLAINTS

• Jurisdiction: United States

7-2 Filing of Complaints

Any person, including Disciplinary Counsel or a Grievance Panel may file a grievance complaint.¹⁰ The rule contains no requirement that the complainant have an attorney-client relationship or any contractual privity with the attorney complained against.¹¹ This "standing" issue often comes as a surprise to lawyers about whom some third-party has filed a complaint. It can also create some interesting and challenging issues for the respondent lawyer when a complaint filed by a nonclient forces the lawyer to reveal information relating to representation of a client who herself has not complained.

Grievance complaints must be filed on the Grievance Committee's form JD-GC-6.¹² The complaint must be filed under penalties of false statement.¹³ The complaint must be filed in an original and six copies.¹⁴ The complaint may not contain "personal identifying information."¹⁵ If the complainant wishes to include hospital, psychiatric and medical records with the complaint, they must be submitted in a sealed envelope labeled "proposed hospital, psychiatric or medical records" and the complaint must explain why the records are relevant in the form of an offer of proof.¹⁶ This rule does not apply to complaints filed by Disciplinary Counsel, Bar Counsel, the Grievance Committee or a grievance panel.¹⁷

The rules do not require the complainant to cite any specific rule. This process acknowledges the fact that most complainants are not lawyers, and allows the complaint to be in narrative form.¹⁸ Grievance complaints may not be filed in any electronic form, including fax or e-mail.¹⁹ Once filed, all complaints are investigated, regardless of whether the complainant seeks to withdraw it.²⁰

A narrative complaint may pose a challenge to a lawyer trying to respond. As described below, because the process is fluid, tangential issues not a part of the client's original complaint often arise. A lawyer may address what appears to be the client's "real" issue, only to have the grievance panel find probable cause on something else. An example of this is that complaints by criminal law clients often lead to no probable cause finding other than the fact that the lawyer lacked a fee agreement, even though the complaint did not raise that issue at all. In addition, because the grievance panels operate on a short timeline and rarely conduct hearings, some panels will find probable cause on a single issue knowing that Disciplinary Counsel may well expand the inquiry later, investigate more thoroughly and add additional charges.

While this may appear unfair, remember that the grievance process is not a civil action between the client and the lawyer. At its heart, it is an institutional inquiry into the fitness of the lawyer, and such an inquiry may go far afield from the original charges. Lawyers challenging disciplinary orders on due process grounds related to this "moving target" problem have not succeeded.²¹

7-2:1 Screening

Upon receipt of a complaint, it is screened for possible summary dismissal by a committee of one lawyer and one lay member of the Grievance Committee and a Bar Counsel.²² Screening must occur within 14 days, but deadlines found in the Practice Book applicable to bar discipline are not mandatory.²³ Grounds for summary dismissal are that the complaint only alleges a fee dispute and not a clearly excessive or improper fee;²⁴ the complaint does not allege facts which, if true, would constitute a violation of any of the applicable rules governing attorney conduct;²⁵ the complaint does not contain sufficient specific allegations on which to conduct an investigation;²⁶ the complaint is duplicative of a previously adjudicated complaint;²⁷ the complaint alleges that the last act or omission constituting the alleged misconduct occurred more than six years prior to the date of filing and there is no allegation or indication of active concealment, a continuing course of conduct, incapacity, ignorance, or insanity, a violation of Rule 1.15 (dealing with client property), Rule 8.1 (bar admission), 8.4(2) through (6) (dealing generally with fraud, criminal conduct and conduct prejudicial to the administration of justice) or rule 1.8(c) (solicitation of gifts or devises);²⁸ the complaint alleges conduct occurring in the presence of a court and the court has been made aware of the conduct and has rendered a decision finding misconduct or finding either that no misconduct occurred or that the allegations should not be referred to the Grievance Committee;²⁹ the complaint alleges personal behavior outside the practice of law which does not constitute a violation of the Rules of Professional Con-duct;³⁰ the complaint alleges the nonpayment of incurred indebtedness;³¹ the complaint names only a law firm or other entity unless dismissal would result in "gross injustice";³² or the complaint concerns conduct occurring in another jurisdiction in which the attorney is admitted and where the attorney maintains an office.³³ If a judge of the superior court takes jurisdiction over a disciplinary matter, the Committee has no authority to consider the conduct.

The screening criteria have been held to be mandatory...