About US

As investigators, we participate in the regulation of the legal profession. Through our participation, we are most likely very knowledgeable of our own systemic processes, but we may be unacquainted with the procedures in of other jurisdictions. As we do not operate in a vacuum, it is useful to understand the organization of other jurisdictions. Though a detailed analysis of each jurisdiction would be cumbersome, a brief overview is possible.

The composition and organization of lawyer regulatory systems throughout the United States is varied. Some systems, like New York, are distinctive. Other systems may be comfortingly familiar. Some systems have similar names. Some are similarly organized. Some may appear analogous but operate under very idiosyncratic rules.

Starting with its most basic component, each state or jurisdiction has its own regulatory system. Usually, the respective state supreme court has the authority to establish the regulatory system. For exceptions like the District of Columbia and Maryland, their respective Courts of Appeal establish its regulatory system.

While nearly all attorney regulatory agencies are established by a court, not all are administered by a court. Nearly one-half of all attorney regulatory agencies are administered by their respective State Bar Associations. Many jurisdictions delegate the authority to regulate attorneys to their state bar Association. Generally, the agency is considered part of the state bar association and agency personnel may be employees of the state bar. Those agencies administered by the court are often considered court employees.

Whether the court or the state bar administers the agency, the name of the agency is often comparable. Most agencies have similar sounding titles such as the Office of General Counsel, the Office of Disciplinary Counsel, or the Office of Bar Counsel. More specialized agency names such as Arizona’s Lawyers Regulation Department, Michigan’s Attorney Grievance Commission or New Jersey’s Office of Attorney Ethics suggest a desire to provide a more illustrative title.

As differing agency titles would suggest, those appointed to direct the agencies have different titles. For instance, Arkansas has an Executive Director while Wisconsin has a Director. Indiana has an Executive Secretary. Kansas has a Disciplinary Administrator. A General Counsel or Chief Disciplinary Counsel manages many jurisdictions.

Despite differences in names and titles, all jurisdictions investigate potential misconduct by attorneys licensed in their jurisdictions. To that end, most investigations begin the same way. An inquiry is filed with the agency or appropriate entity. Many jurisdictions simply refer to the initial contact as a complaint. Texas refers to the initial communication as an inquiry and only if the matter proceeds to further investigation does it become a complaint. Still other agencies label the initial contact a grievance.

Nearly all jurisdictions require the grievance or inquiry is in writing. Some require a specific form filed and a smaller number of agencies require some form of oath or notarization of the signature on the grievance. Colorado, Wisconsin and Washington, are among the very few jurisdictions that allow the filing of telephone inquiries.

All jurisdictions perform some form of screening of the initial grievance. Bar counsel, a staff attorney or other so designated personnel usually perform the screening. The screening may be formal or informal. It may consist of classification of the matter as in Texas or the screening may be an initial determination of a sufficient basis to warrant further investigation.

Some jurisdictions have designated programs for informal resolution or referral. For example, the Oregon State Bar has a Client Assistance Office to assist with informal resolution. All inquiries and complaints about lawyer conduct are reviewed initially by the Client Assistance office and may be referred to the Disciplinary Counsel’s office for investigation. Consumers in Arizona are urged to contact the Attorney/Consumer Assistance Program(A/CAP) hotline to resolve problems with attorneys and serves theintake and prescreening function for the Arizona Lawyer Regulation office. If it is determined that a written grievance should be filed, ACAP personnel will forward the appropriate form to the consumer to file a written inquiry. Referrals may be made to the State Bar fee arbitration, mediation or other appropriate programs. In Massachusetts, the Attorney and Consumer Assistance Program(ACAP) accepts inquiries by telephone. If the matter requires further review, a complaint form is issued to the consumer.

Some jurisdictions refer to this screening process as Intake. Colorado, Wisconsin, Virginia and Utah are a few of the states with Intake offices. These Intake offices screen the grievances and may attempt to informally resolve or refer to other agencies as necessary. Florida has a hybrid combination of the intake and ACAP departments. The staff lawyer determines appropriate jurisdiction and if informal resolution is not appropriate, the matter may be referred for further investigation.

Part of the screening process may entail a determination of a timely filing of the inquiry. Many jurisdictions do not have a statute of limitations on filing an inquiry. However, some jurisdictions will follow the doctrine of laches or more informally indicate older allegations may become stale or hard to prosecute. Jurisdictions that do have statute of limitations on filing usually have limitations under 6 years from the commission of the alleged misconduct or when the misconduct should have been discovered. Lousiana and Wisconsin have 10-year statutes of limitations.

Initial screening can result in dismissal or an informal resolution such as an ‘alternatives to discipline’ program. Up to twenty jurisdictions operate some form of this program. Nevada, New Hampshire, and Wyoming operate diversion programs. Other jurisdictions like Illinois and Iowa have deferral programs. California operates an ‘alternatives in lieu of Discipline’ program. Finally, some jurisdictions operate probation programs that appear to be a more formal alternatives to discipline program. However the terminology, most jurisdictions operate informal resolution programs.

After the initial screening, if a grievance is found to be alleging possible misconduct, most jurisdictions perform an investigation. This investigation may be performed by an attorney or other designated personnel. The investigation may be as simple as requiring a written response from the attorney. Investigations that are more complex may involve ascertaining facts necessary to assess charges by seeking additional responses, interviewing witnesses and obtaining additional documentation.

Assistance with complex or emergent investigations can be obtained through a variety of options. Alabama and Kansas may use local bar associations. Connecticut utilizes grievance panels, while Georgia relies on investigative panels. Wisconsin refers some investigations to District Committees. The jurisdiction’s Supreme Court usually appoints these panels or committees.

In most jurisdictions, once investigation has concluded, attorney regulatory staff propose a recommendation as to resolution of the inquiry. Possible resolution may be to dismiss, admonish informally, or proceed with formal charges. Most jurisdictions require regulatory staff to report their recommendation and proposed resolution to some reviewing body. The names and functions of these reviewing bodies are varied and numerous. For example, Alabama and Indiana report to a Disciplinary Commission, while jurisdictions such as Hawaii and Pennsylvania report to a Disciplinary Board. Illinois reports to an Inquiry Board. Florida reports to a Grievance Committee. Delaware, Wisconsin and Kansas all have Review Committees. South Carolina reports to an Investigative Panel of the Commission on Lawyer Conduct. Utah and Rhode Island report to Screening Panels.

Some of these reviewing bodies have the ability to hold hearings. In Connecticut, three member Grievance panels not only investigate but may hold investigative hearings if necessary and then determine probable cause to proceed. If probable cause is established, then the matter is referred to a Statewide Grievance Committee for possible further hearings.

Though the names are wide- ranging, the duty of the reviewing body is to review the recommendation. Some organizations can request further investigation or can change the recommendation. However named, these bodies usually provide some sort of probable cause determination whether to proceed further with charges that are more formal. Each jurisdiction’s probable cause determination is guided by its standard of evidence. Most jurisdictions use the clear and convincing standard but a few such as Kentucky, New Mexico and Washington use the lesser preponderance of evidence standard.

Upon a finding of probable cause to proceed further, jurisdictions can take one of several actions. This process may entail filing a complaint. Virginia certifies a complaint to the Disciplinary Board or files a complaint in circuit court. California files a notice of disciplinary charges in its state bar court. Connecticut makes a presentment. However they are termed, this is the beginning of the formal disciplinary process.

Depending on the jurisdiction, the complaints are filed usually with a court. Georgia and Oklahoma file complaints with their respective Supreme Courts. Delaware and Hawaii file with the clerk of the Disciplinary Board. Texas files with a District Court or a Hearing Panel. In North Carolina, the complaint is filed with the Disciplinary Hearing Commission. California, the only jurisdiction with its own court for disciplinary purposes, files with their State Bar Court.

After the filing of some formal declaration of charges, hearings are held. Again, the diversity of jurisdictions provides a diversity of hearing bodies. The hearing may be in front of a referee or appointed hearing officer, as in Florida and Arizona. Michigan have hearing panels. Georgia uses a special master. Some jurisdictions like Nevada have hearing boards, others hearing committees or hearing commissions.

After the hearing, the hearing body may write and file a report with the appropriate entity, usually a Board, Commission or Supreme Court. That report usually makes findings of fact and recommends a course of action or discipline. Sometimes the report is the final determination and action is appropriately taken, as in Idaho. Sometimes an appeal of the decision can be made to the state Supreme Court.

Some jurisdictions require court approval for certain disciplinary actions such as suspension or revocation, while other actions such as admonishment or reprimand, do not require court approval. Kansas hearing panels prepare reports and can issue an admonishment or dismissal. The Kansas Supreme Court must impose other more serious discipline. The California Supreme Court must approve any State Bar Court recommendation to suspend or disbar an attorney.

Some jurisdictions require the court review all recommended disciplinary action and make the final determination. After filing a verified complaint, the Indiana Supreme Court appoints the hearing officer who issues a report to the court. In every case, the Indiana Supreme Court reviews and issues the final order.

In Michigan, hearing panels and the Attorney Discipline Board can issue final orders for discipline including revocation. A hearing panel can issue a final order of discipline. If a party petitions for review, the Attorney Disciplinary Board hears the appeal and can affirm, modify or reverse the hearing panel. Parties can petition the Michigan Supreme court for review by leave only. The Michigan Supreme court, at its discretion, can review decisions by the hearing panels and the Board.

As with the differences in names and formats of each jurisdiction’s attorney regulatory systems, so are there differences in types of discipline. Most jurisdictions have some type of informal discipline, a formal or public discipline, and the suspension or removal of attorney’s license to practice law. Most jurisdictions refer to the removal of an attorney’s license as “disbarment”. A very few jurisdictions, like Michigan and Virginia, refer to this process as ‘revocation’. Either way, the removal of an attorney’s license is usually for a period of at least 3 years before they may file for reinstatement. Again, jurisdictions vary on the minimum time of disbarment. In New Jersey, disbarment can result in virtually permanent disbarment as there have been almost no reinstatements of a disbarred attorney in recent history.

All jurisdictions include suspension of an attorney’s license to practice law. Minimum terms of suspension can be as little as 30 days and as much as 5 years. Intermediate discipline can be referred to as reprimand or censure. Both are usually public in nature and are considered more severe. Less severe are the admonishments and private reprimands. Some admonishments may be issued as letters and be of a warning or cautionary nature. Alabama and Nebraska are among a few jurisdictions that also include probation as a possible disciplinary action. Finally, as previously discussed, there are a growing number of states that include an alternatives to discipline program in their arsenal of discipline.

In comparing state attorney regulatory agencies, there are some similarities in their composition. They are authorized by a court system and are designed to regulate the conduct of attorneys licensed in that jurisdiction. They usually perform investigations of inquiries regarding the conduct of attorneys. The jurisdictions typically perform a screening process before proceeding with the investigation. The investigation could include interviewing and deposing witnesses, obtaining relevant court and other documentation and subpoenaing certain information relevant to the investigation.

Regulatory staff reviews each inquiry. Staff may make a recommendation as to the final disposition. Each jurisdiction conducts investigation and disposition in their own unique way. If it is determined that misconduct has been committed, formal charges are usually filed with the appropriate organization. Hearings may be held. Most hearings are public. Recommendations are made from these hearings and either the supervising court or other agency makes final determinations. Finally, there is usually an appeal process.

The differences in regulatory agencies can be insignificant or immense. One jurisdiction calls its hearing body a hearing panel and one calls it a hearing committee. The differences can be vast. New York has four separate disciplinary committees based on geography. Each committee conducts its own disciplinary process based on its own rules of disciplinary process.

These differences highlight the individuality of the jurisdictions. These differences make for unique entities, which appears to have been the design of those who established the agencies. Yet the many similarities also suggest that these formats are established and effective for the regulation of attorneys. By recognizing and understanding the differences and the similiarities of each jurisdiction, we may better understand our own processes and purposes.