The establishment of a reliable system for lawyer discipline was the No. 1 reason our predecessors in Bar leadership worked so hard for unification of the State Bar from the 1920s into the 1960s. It has been at least 15 years since the last thorough review of the disciplinary process has taken place, and we owe it to the legal profession in our state to ensure our rules and procedures are sufficient to meet the needs of our members and our fellow citizens who depend on us.
As one of my initiatives this year, I asked the Disciplinary Rules & Procedures Committee to conduct an in-depth review of our entire disciplinary process.
According to State Bar General Counsel Paula J. Frederick, there were 3,224 requests for grievance forms during the 2014-15 Bar year, and the number of grievances actually submitted to the Office of the General Counsel was 1,997, a slight increase over the 1,857 received the previous year. Additionally, the Consumer Assistance Program (CAP) fields thousands of inquiries each year, about 80 percent of which are resolved without having to file a grievance under the disciplinary procedure. A wide range of questions, issues, complaints and problems between clients and attorneys can be resolved by working with the Consumer Assistance Program, which seeks to improve lawyer-client communications and resolve conflicts through informal methods. CAP does not investigate allegations of serious misconduct. When appropriate, CAP requests the Office of the General Counsel to send grievance forms to persons with those types of complaints.
As most Bar members are aware, the power to investigate and discipline those authorized to practice law in Georgia for violations of the Georgia Rules of Professional Conduct is vested in the State Disciplinary Board, which consists of two panels: the Investigative Panel and the Review Panel.
When grievances are filed with the Office of the General Counsel (OGC), an initial review determines whether a grievance should be forwarded to the Investigative Panel. The accused attorney is served written notice of the grievance and notice of the opening of an investigation, after which the attorney has 14 days to respond to the grievance.
The number of cases sent to the Investigative Panel last year was 207 (10.4 percent of filed grievances), an increase over the previous year's 188 (10.1 percent of filed grievances).
The Investigative Panel is empowered to receive and evaluate written grievances against Bar members, or to initiate grievances on its own. When the panel receives the grievance, the lawyer is served with a Notice of Investigation letting him or her know the case is proceeding to a formal investigation, in addition to the previous written notice from the OGC screening process. The lawyer has 30 days to respond to the panel's Notice of Investigation.
The panel is authorized to conduct probable cause investigations, collect relative evidence and information, and issue subpoenas as provided in the rules.
When the panel's primary investigation establishes probable cause to believe a violation has occurred, the panel may issue a letter of admonition, an Investigative Panel Reprimand or a Notice of Discipline, or direct the OGC to file a formal complaint in the Supreme Court of Georgia for a hearing by a special master, who is a qualified lawyer.
The panel may also refer cases to the Fee Arbitration Committee or the Lawyer Assistance Program, or dismiss and reject grievances it determines to be unjustified, frivolous or patently unfounded.
If the Bar or the respondent is not satisfied with the resolution proposed by the special master, they may request review by the Review Panel of the State Disciplinary Board. The Review Panel receives reports from special masters and recommends to the Supreme Court the imposition of any punishment or discipline it deems appropriate as a result of the hearing conducted by the special master and the report and recommendation filed by him or her. When violations are found to have been committed, any of the following levels of discipline may be imposed: disbarment or suspension by the Supreme Court, public reprimand in Superior Court, Review Panel reprimand, Investigative Panel reprimand or formal letter of admonition.
Disciplinary Rules & Procedures Committee Chair John G. Haubenreich of Seacrest, Karesh, Tate & Bicknese LLP in Atlanta presented a report to the Board of Governors during its Fall Meeting in October. The committee's 23 lawyer members and two lay members are meeting every month, and they have initiated an intensive review of the entire disciplinary process.
Discussing the basis for the review, John reported, "In some cases, grievances have languished for many months and even approaching two years without being considered by the Investigative Panel. For that reason, the committee has been tasked with examining the entire disciplinary process from the initiation of a grievance through the investigation and reporting of that grievance, onto filing of a formal complaint with the Supreme Court, a hearing before a special master, and ultimately decision of the case by the Supreme Court."
The fruit of the committee's efforts, John said, will be the development of concrete proposals for revisions to our disciplinary procedures, for consideration by the Board of Governors and ultimately the Supreme Court.
"Rest assured," he said, "we are not going to end up proposing some radical departure from our longstanding process of self-discipline. I don't believe anyone on the committee has an interest in taking away from members of the Bar initial responsibility for enforcement of the Rules of Professional Conduct. However, there are, in many people's opinion, inherent inefficiencies and delay in the present system that result in a perception that we are not good at disciplining bad lawyers, and those things need to be fixed."
John concluded, "As proposals for revisions to the process and the rules are formulated, we will certainly look forward to input from the Board and the membership at large, and I believe we will ultimately come up with some proposals that are well received by the Board, and ultimately the Court, that will improve the process for the benefit of all concerned."
This review will examine a number of areas to make our disciplinary process more efficient. The volunteers on the Investigative Panel by and large do a good job. However, they are volunteers and don't always provide the same level of investigation because of natural human tendencies. Some are very aggressive, while others take a more passive approach. Some of the panel members are laymen, and others are lawyers.
We appreciate all of the work provided by these panel members. But with approximately 20 volunteer members on the panel and with one member conducting each investigation, inconsistencies in the levels of investigatory diligence from panel member to panel member are to be expected. As previously mentioned, there have been cases that have rested in an Investigative Panel member's hands for up to two years.
The same is true with special masters, the attorneys who are appointed to serve as hearing officers—again on a non-paid basis—when probable cause is found in disciplinary cases. Like the rest of us, these lawyers are busy people with demanding schedules. Some matters, therefore, are disposed of in what can be considered a timely manner, while others drag out over a long period of time. Perhaps we should consider providing additional staff support and/or compensation for Investigative Panel members and special masters to reduce the chance that cases before them get put on the back burner.
"When I joined the General Counsel's office, our membership was about 16,000, and the current setup may have been fine back then," says Paula Frederick. "But now with 47,000 members, it is not appropriate to rely on volunteers to do this job. We could use paid staff or pay the Bar members who are devoting dozens of hours to serve as special masters and hearing officers, and at least reimburse people on the Disciplinary Board for their expenses. It's one way we could get things done faster."
As part of the review, the committee has also been asked to examine the beginning of the process and consider changes as to how grievances are initiated. Presently, we have to rely on a member of the public or a member of the Bar filling out a form and sending it to the General Counsel's office. As a result, we have actually had cases of lawyers who were indicted and facing trial for serious criminal offenses, which grew out of alleged conduct involving violation of the disciplinary rules, still being members of the Bar in good standing because the General Counsel's office had not been made aware of the criminal case against the lawyer, nor the case's underlying facts.
Some states require prosecutors to report criminal charges against Bar members, which is something we will consider during this process. We might also consider posting the grievance form on the Bar's website to speed up the submission process to the Office of the General Counsel.
Other areas of concern that will be addressed by the committee during this review of the disciplinary process include:
I want to thank Paula, John and all of the Disciplinary Rules &Procedures Committee members for their ongoing work to address these and other issues and recommend the changes that need to be made for a more effective and efficient disciplinary process that, most important of all, is fair to everyone involved.
Robert J. "Bob" Kauffman is president of the State Bar of Georgia and can be reached at email@example.com.