CHAPTER 7 - 7-4 STATEWIDE GRIEVANCE COMMITTEE

• Jurisdiction: United States

7-4 Statewide Grievance Committee

7-4:1 Committee Membership

The Statewide Grievance Committee is comprised of 14 lawyers and 7 lay persons.⁶⁹ All Grievance Committee hearings are held by reviewing committees consisting of two lawyers and one layperson.⁷⁰ The Grievance Committee rotates the membership of the reviewing committees twice a year.⁷¹ No reviewing committee may hear a matter concerning a respondent lawyer who has an office in the same town as the committee member.⁷²

Because the hearings concern matters within the scope of knowledge of the professional members, the hearings are usually conducted by an attorney member. Different members have different approaches. Because the reviewing committees reshuffle every six months, the dynamics of the individual panels shift over time.

The Statewide Bar Counsel assigns the members of the reviewing committees and tries to rotate the members to different locations to avoid issues of bias or local advantage or disadvantage. Nevertheless, a lawyer experienced in the process can often tell whether a particular panel will be more or less aggressive based upon the makeup of the committee hearing the case.

7-4:2 Grievance Committee Hearings

Grievance Committee hearings are held in open court.⁷³ At hearings of the Grievance Committee, it is assisted by the Statewide Bar Counsel.⁷⁴ Both the Grievance Committee and Disciplinary Counsel may issue subpoenas for testimony or the production of books, records or other evidence.⁷⁵ Disciplinary Counsel "pursues" the matter before the Grievance Committee.⁷⁶ One court has likened the role of Disciplinary Counsel to that of a criminal prosecutor.⁷⁷ Determinations are made by a majority vote, and two members constitute a quorum.⁷⁸

Because a license to practice law is a vested property interest and disciplinary proceedings are adversary proceedings of a "quasi-criminal nature," an attorney subject to discipline is entitled to due process of law.⁷⁹ "Due process is inherently fact-bound, is flexible, and calls for such procedural protections as a particular situation demands. The constitutional requirement of procedural due process invokes a balancing process that cannot take place in a factual vacuum."⁸⁰

At least two members of a reviewing committee must be present to allow a hearing to proceed.⁸¹ The presence of the third member can be waived by the parties.⁸² If not waived, the third, nonattending member will be allowed to read the transcript and participate in the deliberations.⁸³ In multi-day hearings involving only two reviewing committee members, the same two members must be present at all hearings.⁸⁴

Often, it is not known until the morning of a hearing that one member of the reviewing committee is absent or recused. Thus, the respondent attorney will have to decide quickly whether the hearing should go forward with only two members, or if the involvement of the third, albeit only in the form of a record review, should be requested.

It should also be remembered that in matters of professional licensing hearings, there is a line of cases following a matter called Jutkowitz that hold that matters of competence and other issues within the scope of knowledge of the professional members cannot be decided by a committee that does not have a majority of professional members unless expert testimony is offered on the issues.⁸⁵ This issue has never been ruled on by a court in the context of a grievance hearing, but the reasoning of Jutkowitz that the rule is designed to prevent the professional member from overwhelming the lay member of a committee seems sound and applicable to lawyer discipline matters. Whether a waiver of the attendance of a third member at the hearing is also a waiver of the requirement of expert testimony where a panel consists of only a lawyer and a lay person is similarly unknown. If the issue is raised by the respondent lawyer, the probable response will be to deem the participation of the third member as not having been waived.

Prior to the hearings, Disciplinary Counsel and respondents or their counsel must file lists of witnesses and pre-file lists of exhibits and copies of all exhibits with the bar counsel's office under what is called the Rule 7.F procedure.⁸⁶ Failure to do so without good cause may lead to a record or a witness's testimony being precluded.⁸⁷ It is also required that Disciplinary Counsel and respondents' counsel will confer prior to the filing of the Rule 7.F materials so that, to the extent possible, joint exhibits and agreed upon evidence may be identified and pre-filed.⁸⁸ Rule 7.F materials must be filed at least seven days before a hearing.

Though it is permitted by the rules, very limited motion practice is conducted.⁸⁹ Any pre-hearing motions or briefs that are filed must be filed, with an original and three copies, with bar counsel prior to seven days before the hearing, and must be certified as having been served on all parties.⁹⁰ Motions for continuance, pre-hearing motions, and pre-hearing briefs may be electronically filed.⁹¹

The rule allowing electronic filing does not allow Rule 7.F lists of witnesses or exhibits to be e-filed. Careful practitioners will calendar their files so that they are not precluded from offering evidence because of a failure to comply with the pre-filing requirements.

The Rule 7.F prehearing filing requirements for evidence do not apply to rebuttal materials. However, as there is no pretrial discovery and the pleadings in grievance hearings are limited to the probable cause finding, it is unwise to hold key evidence for rebuttal purposes. If Disciplinary Counsel does not open the door, there may be nothing to rebut and the respondent lawyer may be foreclosed from offering exculpatory materials. Further, the reviewing committee will consist of two lawyer members, and game-playing is quickly uncovered and frowned upon.

Grievance Committee hearings are administrative hearings, with relaxed rules of evidence. The Committee may exclude irrelevant, immaterial or repetitious evidence.⁹² Written evidence is allowed,⁹³ and copies may be offered in lieu of originals.⁹⁴

For those not familiar with administrative hearings, the reviewing committee hearing process may appear fast and loose. Hearsay evidence is routinely admitted for purposes of administrative convenience. Some hearing chairs will hew more strictly to the rules of evidence while others will allow a freer presentation. The idea is that when the panel is made up of a majority of professional members, it can determine what weight to give to hearsay and other evidence that may otherwise be excluded.

Allegations of attorney misconduct must be proven by clear and convincing evidence.⁹⁵ While some of the rules contain a "knowing" requirement, others do not. Scienter is not a required element of proof in a case arising out of an alleged violation of such rules.⁹⁶

Disciplinary Counsel present the case in the first instance. On very rare occasions, a respondent attorney has successfully moved for an order of dismissal at the conclusion of Disciplinary Counsel's case for failure to prove a case by clear and convincing evidence.⁹⁷ Usually, however, this issue is left up to the committee as a part of its deliberations on the whole case.

Thus, a respondent lawyer who is faced with a weak case may have the Hobson's choice of offering no rebuttal or offering a rebuttal case which may lead to other matters for which discipline may be imposed. Because there is no pretrial practice of any significance, and no discovery, trying a grievance case is very much "on the fly." Evidence may lead to new areas of inquiry. Witnesses who were thought to help may harm and vice versa.

There is no privilege against self-incrimination in disciplinary cases. Thus, Disciplinary Counsel may call the respondent attorney as a witness to prove a necessary issue or fact in the case. This has led to at least one case where the respondent attorney hid from the reviewing committee during the Disciplinary Counsel's case-in-chief to avoid being called.

At the conclusion of the case, Disciplinary Counsel, the respondent or the respondent's counsel and the complainant may all make closing statements. Complainants usually go first, followed by Disciplinary Counsel. The respondent or the respondent's counsel get to close. Though this deviates from the usual practice that the party with the burden of proof gets to have the last word, the process reflects a bias in favor of the respondent lawyer who, arguably, has the greatest stake in the outcome.

Decisions are by majority of the reviewing committee members.⁹⁸ In case of a tie in a reviewing committee of only two members, a third member will be appointed to consider the record and cast the deciding vote.⁹⁹

7-4:3 Additional Probable Cause

Disciplinary Counsel have the authority to amend the disciplinary charges once probable cause is found.¹⁰⁰ If the amendments occur prior to the hearing, they may be made by Disciplinary Counsel as of right.¹⁰¹ If they occur after a hearing has begun, amendments or additions may be made only for good cause and with the consent of both the respondent and the Grievance Committee.¹⁰² Additional or substitute charges of probable cause must be made in writing.¹⁰³ Respondents are allowed at least 30 days to respond to additional charges.¹⁰⁴

The adoption of §§ 2-35(d) through (f) of the Practice Book, which allow Disciplinary Counsel to amend or add charges, made the system more responsive and workable both for Disciplinary Counsel and respondents. Often, local panels do not have the full benefit of the record and investigation developed later by Disciplinary Counsel when they are assigning charges. Many times, it appears that different charges are more appropriate. Other times, it is clear that the original charges are in error. Rather than having complainants file new complaints, allowing Disciplinary...