by Joshua T. Walthall |September 28, 2021

First, you need to understand how grievances are started at the North Carolina State Bar.

Almost anything can trigger the opening of a grievance at the North Carolina State Bar, but typically someone submits a complaint. And while a complaint usually comes from a client or former client, it can really come from anyone: an opposing party, a client’s spouse or relative, an opposing counsel, a judge, or even just someone with an unhealthy obsession with you. There is a no “standing” requirement.

Pro Tip 1: Making claims to the State Bar that the complainant of your grievance lacks standing will get you nowhere. 

But grievances don’t have to be borne from a complaint; the State Bar can (and has) opened grievances based on news articles, judicial rulings, random audits, or self-reports.

Pro Tip 2: Claiming to the State Bar that “no one complained about this” will get you nowhere.

Second, you need to understand the low hurdle the grievance must clear before you hear about it through a Letter of Notice.

Once the grievance file is opened – be it from a complaint or some other source – a staff attorney in the Office of Counsel will review the information in the file and determine if a Letter of Notice needs to be sent to the lawyer who is the subject of the grievance. The standard for sending a Letter of Notice is a low one: if true, would the actions the attorney is alleged to have done be a violation of any of the North Carolina Rules of Professional Conduct? If the answer is no, the grievance will be dismissed, and you’ll never hear about it. If the answer is yes, staff counsel will draft and send to you a Letter of Notice and Substance of Grievance wherein he or she will summarize the allegations against you and request your response to the same; often, the Bar will request you produce various documents or files germane to the grievance investigation; occasionally, the Bar will also request you submit to an interview at this stage.

Third, you need to understand what to do when you receive the Letter of Notice and Substance of Grievance. 

At the outset, note the date you receive the Letter of Notice; the rules provide you 15 days to respond, though reasonable extensions are usually granted. Then, take a deep breath; refrain from screaming at anyone or destroying evidence or lashing out at the State Bar or the complainant, if there is one.

Pro Tip 3: Relax. A lawyer’s reaction to the grievance is often worse than the action that led to the grievance in the first place.

You aren’t allowed to ask the complainant to withdraw the grievance.  You aren’t allowed to ignore the grievance. You aren’t allowed to make the complainant rescinding the grievance a condition of a settlement. And you aren’t allowed to bill the client/complainant for your time responding to the State Bar. Just look at the summary in the Letter of Notice and Substance of Grievance, provide a detailed response that answers the questions that are asked but ignores anything that wasn’t asked and then provide the documents requested, if any. 

Pro Tip 4: Give the North Carolina State Bar the documents they ask for; lawyers who refuse can be (and have been) found in contempt of court and imprisoned.  

Some folks will tell you to request a copy of the complaint, and this is occasionally beneficial or illuminating.  But often, it’s a waste of time and even potentially damaging. Here’s why: the staff attorney at the Bar who drafted the Letter of Notice and Substance of Grievance has already looked at the complaint (if there is one) and determined what matters and what doesn’t. He or she has then put what matters in the Substance of Grievance and left out what doesn’t. For example, if a former client complained about your hair or your accent or the cleanliness of your car, none of these would even merit your response and thus won’t make it into the Substance of Grievance. But often when folks request the complaint, they feel compelled to respond to every little thing alleged in the complaint rather than the distilled version in the Substance of Grievance; not only is this a waste of everyone’s time, it can potentially get you into trouble. Have you ever seen someone respond to accusations that haven’t even been made against them? My children do it all the time, and it’s always because they’re guilty. Thus, just focus on the specific allegations in the Substance of Grievance and respond to them in a timely, levelheaded fashion with supporting documentation or evidence, when necessary.  Above all, stay calm and remain professional.

Pro Tip 5: Telling the State Bar in writing that the grievance complaint against you is “bulls**t” or “total and complete bulls**t” will not help you.

Though there are absolutely times to present arguments to the State Bar about the facts or law, it is generally most helpful to you and your license to be cooperative and, often, apologetic. Knowing when to argue and when to apologize generally takes experience with the grievance process and an experienced understanding of the State Bar and North Carolina Grievance Committee.

Fourth, you need to understand what happens after you respond.

After you’ve submitted your response, the staff at the Office of Counsel will determine if any further information is necessary; they may have more questions for you or want to interview you or others involved (clients, witnesses, complainants, et cetera). Once again, be cooperative and honest and forthcoming; the coverup is always worse than the crime.  When the staff attorney has all the information he or she needs to analyze the allegations in the grievance, he or she will write a Report of Counsel summarizing the information in the complaint, your response, and the law; staff counsel will also make a recommendation as to what discipline he or she believes is appropriate. This “ROC” will then be submitted to the Grievance Committee who will vote on what discipline, if any, is appropriate. The Grievance Committee is made up of attorneys on the elected State Bar Council, and its meetings and deliberations are entirely confidential, as is everything else in the grievance process.

Pro Tip 6: Showing up at the location of the Grievance Committee meeting and demanding to speak with “the manager” will get you nowhere. 

The Grievance Committee at the North Carolina State Bar will consider a number of factors in its deliberations, including but not limited to: if the attorney has any prior discipline for the same or similar conduct, if the attorney recognizes his or her wrongdoing, if the attorney has shown remorse, if the attorney has provided any indication that the misconduct won’t happen again, how many Rule violations are present, what amount and type of harm was caused, and what efforts the attorney has made to mitigate any damages he or she may have caused.

Fifth, you need to understand what the possible outcomes of the grievance are.

The Grievance Committee at the North Carolina State Bar meets quarterly (usually in January, April, July, and October) and will consider each grievance presented that quarter under a probable cause standard. The Grievance Committee could do any of the following:

• Continue the grievance
• Dismiss the grievance
• Refer the grievance to another agency to be criminally investigated (the DA, AG, or US Attorney’s Office)
• Refer the lawyer who is the subject of the grievance to the Lawyer Assistance Program (usually for grievances that are borne out of a lawyer’s addiction or mental health issues)
• Refer the lawyer who is the subject of the grievance to the Trust Accounting Compliance Program (usually for non-theft, less serious trust account violations; the TAC Program is basically trust account school)
• Dismiss the grievance with a Letter of Caution (private; for unprofessional behavior that doesn’t rise to the level of a Rule violation)
• Dismiss the grievance with a Letter of Warning (private; for very minor, technical, usually accidental violations of the Rules that caused no harm)
• Issue an Admonition (private written discipline for a violation of the Rules – usually issued when no one was harmed or potentially harmed)
• Issue a Reprimand (public written discipline for a violation of the Rules – usually issued when slight harm or potential harm is present)
• Issue a Censure (public written discipline for a violation of the Rules – usually issued when the harm is more pronounced or for any number of aggravating factors, like prior discipline or a lack of remorse)
• Refer the grievance to the Disciplinary Hearing Commission (when the Grievance Committee believes suspension or disbarment is appropriate).

Sixth, you need to understand what your options are after the Grievance Committee makes its decision and issues you written discipline.

Let’s set aside a referral to the Disciplinary Hearing Commission (“DHC”) for a second and talk about the other possible outcomes. If the Committee dismisses the grievance or refers you to another agency, you technically haven’t been disciplined, so there’s not much for you to do, save be glad it’s over (for dismissals) or participate in the process to which you’ve been referred (for referrals).  If you’ve received written discipline, however, there are two primary options and one ancillary option. The ancillary option is to request reconsideration. Some folks will tell you that requesting reconsideration is a great idea, but these folks would be wrong in almost every case. Outside of probative, compelling, new evidence that the Committee did not have when it made its original decision, requests for reconsideration are almost always fruitless. 

Pro Tip 7: If someone is charging you significant sums to request the Grievance Committee reconsider its decision, there should be a very good reason (meaningful new evidence, for example) for making that request; otherwise, they’re wasting your time and money.

Setting aside DHC referrals (which we’ll get to in a second) and feckless requests for reconsideration, your two primary options are to reject the discipline or accept it. If you accept it, here’s what happens:

• For Letters of Caution: it goes in your Bar file for 1 year, after which it can’t be used against you as aggravating prior discipline; the complainant (if there is one) is informed that the grievance was dismissed but that you were cautioned for unprofessional behavior;
• For Letter of Warning: it goes in your Bar file for 3 years, after which it can’t be used against you as aggravating prior discipline; the complainant (if there is one) is informed that the grievance was dismissed but that you were warned for a minor or technical violation of the Rules;
• For Admonitions: it goes in your Bar file permanently and can be used against you as aggravating prior discipline; the complainant is informed you were admonished and provided with a summary of the discipline;
• For Reprimands: it goes in your Bar file permanently and can be used against you as aggravating prior discipline; it becomes a public record; it is published in the State Bar Journal; it is put on the State Bar’s website; the complainant is provided a copy of the Reprimand; and
• For Censures: it goes in your Bar file permanently and can be used against you as aggravating prior discipline; it becomes a public record; it is published in the State Bar Journal; it is put on the State Bar’s website; it is sent to the Chief Resident Superior Court Judge in your district; the complainant is provided a copy of the Censure.

You also have the option of rejecting the discipline if it’s a Letter of Warning or higher, at which point the State Bar will file a complaint with the DHC for the conduct that was the subject of the discipline. Thus, there are two ways to get to the DHC: by rejecting written discipline and by direct referral from the Grievance Committee.

Seventh, you need to understand what happens at the DHC.

Regardless of how the case got to the DHC, the process is the same, as are the possible outcomes. The State Bar will file a public complaint against you, setting forth the facts that led to the alleged misconduct and the specific Rules you’re alleged to have violated.  Again, this complaint is public: it’s available on the State Bar website and is often sent to the courts, other state agencies, the complainant, and the media. Once the complaint is filed, the Chair of the DHC will appoint a three-judge panel to sit as finder of fact and to decide what discipline is appropriate; the standard of proof is clear and convincing evidence. The panel is made up of two attorney members and one nonlawyer public member. You will then be required to file an answer to the complaint; your answer is public too. Then the case will proceed as would any civil case: the parties may take depositions, engage in discovery, and file various pretrial motions.  Eventually, if it is not settled by consent, the case will proceed to trial, where witnesses are called, exhibits are submitted, and arguments are made like in any bench trial. You may be required to testify since it’s a civil trial, and while you of course maintain your right to plead the Fifth Amendment, such could be used against you by inference. 

The trial will consist of two “phases”: Phase 1 is a fact-finding phase, after which the panel will announce which Rule violations, if any, have been proven by clear, cogent, and convincing evidence; Phase 2 is a punishment/sentencing phase wherein the panel will decide what discipline is appropriate.

The panel can issue any level of discipline, including dismissal; they aren’t limited by anything that happened at the grievance stage. Thus, even if the case is referred directly to the DHC by the Grievance Committee, the DHC can still decide to issue something less than suspension or disbarment: they could issue you an admonition or even outright dismiss the charges against you by finding you didn’t violate the Rules. However, the inverse is true, as well: even if you rejected private, written discipline from the Grievance Committee to get before the DHC, the DHC can still suspend or even disbar you. 

One of my first DHC trials when I was a prosecutor at the State Bar was against an attorney who rejected an admonition, which, again, was private; when we tried the case at the DHC, the panel issued that defendant a five-year active suspension. I didn’t ask, but I’m guessing that that defendant would have much preferred the private admonition over a public five-year active suspension of her license to practice law.

Pro Tip 8: It’s rarely prudent to reject private written discipline; even if you “win” at the DHC and get slightly lesser discipline, you’ve still traded a private matter for a public one. Also, unless you’re found to have not violated any Rules at all, you will almost certainly be taxed with all of the Bar’s costs in prosecuting you (travel, depositions, court costs, et cetera).  In short: take the Admonition and run.

Once the hearing is over, the panel will verbally announce its decision from the bench and then ask one or both of the parties to draft an order of discipline; the order will usually include findings of fact, conclusions of law, findings of fact regarding discipline, conclusions of law regarding discipline, and an order of discipline. In addition to the aforementioned written discipline possibilities, the DHC can suspend a lawyer’s license for up to five years or disbar them from the practice of law altogether. Suspensions can be stayed for all or a portion of the timeframe selected by the panel, and conditions can be imposed on a stay or on reinstatement from disbarment; though some conditions are more common (completing additional CLE requirements, setting up a practice monitor, repaying money to a client or victim, submitting regular trust accounting documentation to the State Bar), others are a bit more unique (sending a written apology to the victims, getting a psychological evaluation, submitting to regular drug testing).  Appeal from the DHC is to the North Carolina Court of Appeals. 

In addition to being professionally damaging, the grievance process can be frustrating, stressful, time-consuming, emotional, and confusing. But it doesn’t have to be. If you want help navigating an issue with the State Bar, let me know.  As a State Bar prosecutor for nearly a decade, I handled hundreds of files before the Grievance Committee and the DHC and can help you achieve the best possible outcome.  Just give me a call; we’ll get through it together.

Joshua T. Walthall
919-801-6208
jwalthall@bobllaw.com