Feb. 16, 2022 – For practicing lawyers, it is not always possible to avoid mistakes. When they do happen, the disciplinary grievance process provides not only the opportunity to resolve disputes, but in some instances may result in additional training without the need for formal discipline.
Here are five tips to help you understand the grievance process with the Office of Lawyer Regulation (OLR) and possible outcomes when one is filed against you.
#1: Be Calm and Look at the Numbers
There are over 25,000 attorneys licensed to practice law in Wisconsin. In fiscal year 2021, there were approximately 1,375 grievances filed, and the OLR anticipates around 1,400 grievances in fiscal year 2022. Of the 1,400 filed grievances, approximately 95% are resolved at the intake stage. The number of filed complaints (or grievances) typically decrease each year, as evidenced by the strong decrease in filings since 2014, where 2,500 complaints were filed.
The most common grievance filed with OLR? “A lack of communication with the client, which are around 15% of those filed,” says Julie Spoke, Director of Central Intake for the Office of Lawyer Regulation.
Others include a lack of diligence – around 16%. “Most grievances – about 50 percent – are filed by the client,” Spoke says. “Around 20 percent are filed by adverse parties.”
Another source for a grievance filing is trust account violations. To learn more about best practices to avoid these violations, see “5 Tips: Common Trust Account Violations with Travis Stieren,” in the July 7, 2021 issue of InsideTrack™.
#2: Learn about the Grievance Process and Alternatives to Discipline
The Central Intake Department at the OLR consists of nine investigators, who conduct preliminary investigations of grievances to determine whether possible misconduct exists.
As part of the fact-finding process, investigators contact both the grievant and the attorney to share their sides of the story, provide documentation and other evidence that they feel should make an impact on how the grievance should be resolved.
Many grievances are resolved at the intake stage. These include:
deferral to another agency (such as the Wisconsin Judicial Commission or Department of Justice);
closure, as withdrawn by the grievant;
reconciliation of a minor dispute;
dismissal, as outside the statute of limitations (now six years);
de minimus closure (closure with advice);
a diversion agreement, which may include:
If the intake investigator performs their initial evaluation and determines that the attorney is not cooperating or that a subpoena is needed for additional records or documents, or that the sanction may result in the suspension of the attorney’s license, the matter is referred to OLR’s Formal Investigation Department.
If an attorney does not agree to a diversion or reprimand, or if the recommended discipline is a suspension, then the matter heads to the OLR’s Litigation Department.
Before a complaint is filed with the Wisconsin Supreme Court, the OLR must present all their evidence to the Preliminary Review Committee, which determines whether there is cause to proceed with the allegations of misconduct.
Although the OLR takes several steps in prosecuting misconduct, attorneys should remember that the Wisconsin Supreme Court is the ultimate decision-maker on imposing any discipline.
When a grievance is filed, there’s an opportunity for both sides to present their perspectives – and possibly resolve the dispute without the need for formal discipline. Julie Spoke, Director of Central Intake for the Office of Lawyer Regulation, talks with State Bar of Wisconsin Law Practice Assistance Manager Christopher C. Shattuck about the best practices for navigating the grievance process.
#3: Cooperate with the Investigation
Pursuant to Wisconsin Supreme Court Rule 21.15(4):
Every attorney shall cooperate with the office of lawyer regulation in the investigation, prosecution and disposition of grievances, complaints filed with or by the director, and petitions for reinstatement. An attorney's willful failure to cooperate with the office of lawyer regulation constitutes violation of the rules of professional conduct for attorneys.
If an attorney does not cooperate at the intake stage, the OLR forwards the matter to the Formal Investigation Department.
Lawyers should also be aware that Supreme Court Rules have been recently revised allowing the formal investigator to immediately suspend the license of a Wisconsin attorney until the attorney cooperates with the OLR.1
#4: Know that Withdrawal May Be Permitted
Know that if a client files a grievance, that does not automatically create a conflict of interest between the lawyer and the client, Spoke says.
Most grievances do not support an allegation of misconduct, or are dismissed and resolved at the intake stage. “If the attorney feels that the relationship with the client is irretrievably broken as a result of the grievance being filed, then they can seek to terminate the representation pursuant to SCR 20:1.16(b) and obtain the necessary authority from the court to withdraw in any matters where they have filed notice of representation for their client,” Spoke says.
#5: Protect Your Client’s Confidentiality
Lawyers are required under the duty of confidentiality to not reveal information relating to the representation of their clients.
However, a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary in order to respond to allegations in any proceeding concerning the lawyer's representation of that client.2
“When the complaint stems from someone other than the client, we have to remind attorneys of their obligation to cooperate with the investigation process,” Spoke says. “We also help educate them about the confidentiality of the investigation process as outlined in SCR 22.40.”
Conclusion: These Things are Good to Know
The disciplinary grievance process provides attorneys with the opportunity to confidentially share their perspectives and resolve minor disputes with clients.
Cooperation is required, otherwise the OLR may proceed with suspending an attorney until they cooperate.
Withdrawal may be necessary when a grievance is filed, but it is important to keep in mind that over 95% of complaints are resolved at the intake stage without the need for formal discipline.
Finally, there may also be opportunities for additional education that do not involve formal lawyer discipline. “So make sure you cooperate with the process, otherwise it may result in stricter sanctions than the underlying complaint,” Spoke says.
Take the Assessment: Are You at Risk for Complaints?
The Office of Lawyer Regulation (OLR) and State Bar of Wisconsin have partnered together to create a tool for Wisconsin-licensed attorneys to evaluate their firm’s management systems and see where they may be at risk for malpractice or client complaints.
Check out these resources:
1 See SCR 22.03(4)(a).
2 See SCR 20:1.6(c)(4).