VIDEO: Intransigence often costly in legal grievance

Unlike many professions that require licensure, oversight and regulation by a separate entity, the legal profession is regulated by the judicial branch itself. Many states adopt the American Bar Association’s Rules of Professional Conduct, with the highest court in each land requiring attorneys to adhere to the rules or face discipline.

That discipline is meted out by a group of lawyers’ peers through disciplinary committees that shoulder a substantial responsibility.

Several recent studies suggest that the public is not as confident in the rule of law or the justice system as it should be. A 2020 report by the Institute for the Advancement of the American Legal System, titled “Public Perspectives on Trust and Confidence in the Courts,” that there is a major concern regarding the fairness of the civil process based primarily on systemic racial and gender bias, disparate treatment based on socioeconomics, and judicial biases.

‘Judge and jury’

In North Carolina, the State Bar’s Disciplinary Hearing Commission — a judge and jury composed of 12 lawyers and eight nonlawyers sitting in panels of three — ensures that attorneys follow the North Carolina Rules of Professional Conduct. According to its website, the commission protects the public from harm caused by the unethical conduct of lawyers and protects the “integrity of the justice system.”

Its members are appointed by statute, with lawyer members being appointed by the State Bar Council, the chief justice of the Supreme Court of North Carolina, the speaker of the North Carolina House of Representatives, and the president pro tempore of the North Carolina Senate. Public members are appointed by the governor, the speaker and the president pro team.

Stephanie Davis, the commission’s chair, said it is imperative that the panel fulfill its mission of policing the bar’s ranks, though she made clear that the commission is not akin to a law enforcement agency’s internal affairs division.

“All members take being on the DHC seriously while understanding the importance of the work that we do,” she said.

In South Carolina, lawyers are regulated by the Office of Disciplinary Counsel, which screens and investigates all complaints against attorneys. (South Carolina averages approximately 1,400 complaints yearly for lawyers and judges, though not all complaints rise to the level of actual misconduct or fall within the jurisdiction of the office.) When necessary, it prosecutes attorneys accused of ethical misconduct or who have a physical or mental condition affecting their ability to serve the public. The office’s Commission on Lawyer Conduct is composed of 34 attorneys and 16 public members.

Douglas Zayicek of the Bellamy Law Firm in Myrtle Beach, who served nearly 13 years with the office, agrees with Davis’ assessment regarding the importance of being an independent court hearing disciplinary cases.

“It’s very important. ODC acts as the prosecutor and solicitor … the commission acts as the judge and jury, so to speak … then the Supreme Court reviews the commission’s decisions,” Zayicek wrote. “If ODC and the attorney can’t reach any acceptable agreement, the commission has a full-blown trial.”

Communication is key

In his time with the Office of Disciplinary Counsel, Zayicek has seen lawyers facing various accusations, and not all of them involve malice or the intent to commit an act that violates the public’s trust. The most common — the lack of communication — could easily be avoided, he said.

“Attorneys fail to communicate with their clients, and then fail to communicate/respond to the Office of Disciplinary Counsel,” Zayicek wrote in an email. “Everyone makes mistakes, and ODC and the commission understand that. But far too many attorneys do not come clean with their clients, admit to a mistake, understand they may have done something wrong and try to fix the problem, and cooperate with ODC and the Commission to resolve the matter.”

Too many lawyers, he added, fail to understand that even if they haven’t done anything wrong, they can still be punished by the commission for failing to cooperate timely and respond to the office and the commission.

“Attorneys cannot bury their heads in the sand; that only makes things worse,” he wrote.

Josh Walthall of Boerema Blackton in Raleigh spent eight years prosecuting cases for the State Bar but is now defends those facing such hearings. Walthall also noted that it is unwise to ignore a grievance, instead offering that attorneys should, above all, stay calm and remain professional.

“First and foremost, it’s a rule violation to not respond to a lawful demand for information from the State Bar,” Walthall said. “Second, it’s a civil context, so it’s not like a criminal case where you have the right to remain silent. … They can draw inferences against you if you don’t respond.”

Where communication is key, Walthall made clear that one should communicate what the bar is looking for, and not what it’s not. Claiming that a complainant lacks standing, that there is no complainant, or that the complaint is “total and complete bull—-” is not helpful.

“At present, there is no standing requirement to submit a grievance to the State Bar,” Walthall said. “It doesn’t help to attack the State Bar, attack the complainant or anything like that. It does not help you.

“They want to see you respond in a thoughtful, respectful manner and demonstrate that you haven’t done anything wrong. Usually, the best way to respond is to be remorseful and apologetic and be willing to learn and improve rather than to be combative.”

Not rocket science

Despite numerous potential pitfalls in the legal profession, Zayicek said avoiding involvement with the disciplinary committee is simple if one heeds a few words of wisdom: Know the rules of professional conduct and do not lie, cheat, or steal.

“In addition, lawyers can be bad at documenting things, so it’s imperative that lawyers keep detailed records, especially of communications with clients and the handling of money,” Zayicek wrote. “If a grievance is ever filed, the lawyer will be very grateful if every communication is documented. Trying to recreate records after the fact will likely not turn out well.”

Walthall agreed, noting that faulty trust accounting is at the root of many grievances.

“Document everything as much as possible,” he said. “Be very clear in your communications with your clients, including having a really good engagement agreement at the outset that clearly spells out the scope and terms of your representation. Stay in regular touch with your clients and … paper as much of the representation as you can.”

‘Not meant to embarrass’

How damaging involvement in the disciplinary process can be depends on several factors, including the attorney and severity of the offense. From a confidential reprimand to disbarment, the goal of the disciplinary agencies is not to ruin an attorney’s career but ensure that attorneys follow the rules to maintain the public’s trust in the legal profession.

“Hopefully, every attorney can learn and grow, and not make the same mistake again,” Zayicek wrote. “Having opinions published by the Supreme Court is not meant to embarrass the attorney, but to let the Bar know what conduct is prohibited, and the possible repercussions should anyone else do something similar.”