Upholding professional standards is a key function of the state bar. The bar also helps support the public interest in ensuring that lawyers act ethically and in accordance with the rules of professional conduct. One way that the bar helps ensure proper conduct by attorneys is by permitting the public (whether clients or other lawyers) to file bar grievances against lawyers and judges.

When facing the prospect of asserting a bar grievance, many complainants may fear retribution or unwarranted attack by the recipient of the complaint, such as the threat of legal action for making the complaint. If there were no protections against such counterattack, many complaints would likely never be made. On the other hand, it is important for recipients of bar grievances to have their own protections to ensure that unwarranted complaints do not have unfair consequences.

Here’s what lawyers should know about the protections provided for those individuals and lawyers who make and receive bar grievances.

A Regulated Profession

Rule 8.3 of the ABA Model Rules of Professional Conduct provides guidance for lawyers who suspect other practitioners of engaging in professional misconduct:

“A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.”

Comment 1 to the rule explains: “Self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. … An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important where the victim is unlikely to discover the offense.”

State rules vary regarding when and under what circumstances lawyers are required or simply called upon to consider reporting potential misconduct they observe on the part of another member of the bar. The Rules further make it clear that the reporting of misconduct is meant to protect both the public (who may be harmed by lawyers who conduct representations without properly considering the rules) and the lawyers who otherwise maintain the standard of practice.

Protecting Those Receiving Bar Grievances

The reporting process is also meant to provide a system for the review of bar grievances and to protect the lawyer recipients involved in the process, where possible. For example, complaints filed against lawyers alleging substance abuse issues or mental health concerns are often treated confidentially. Even though impairment may be grounds to review a lawyer’s fitness to practice law, bars and boards often have discretion to also refer the lawyer to a medical or mental health professional, or to defer any disciplinary findings until the lawyer begins recovery, where appropriate.

Safeguards such as these foster an ethical legal community where lawyers can continue to feel supported even while the bar is investigating potential rule violations.

Protecting Those Making Bar Grievances

Most states’ laws protect statements made in pleadings filed in a court. Even where ultimately untrue, statements made to courts or in pleadings are often protected by an absolute privilege. In that way, statements made to a court in support of a claim are protected and immunized from a defamation lawsuit. That is because of the public policy concerns in encouraging open and full litigation of disputes in courts. “Absolute privilege is based upon a public policy determination that the importance of one’s ability to be free from restraint when engaged in legal processes outweighs a defamed party’s right to seek legal redress.” RCO Legal, P.S., Inc. v. Johnson, 347 Ga. App. 661, 669-70 (2018).

Case law also generally recognizes an absolute privilege protecting statements made in a bar complaint. Like the adversarial court system, the attorney disciplinary review system is designed to protect the public from suffering harm at the hands of lawyers who violate the ethical rules, while also designed to ensure that those lawyers receive a fair review of the allegations against them.

Bar Grievances Require Investigation to Ensure Those With Merit Are Addressed Appropriately

Although receiving a bar grievance can create stress and uncertainty for the receiving lawyer, the mere filing of a grievance does not necessarily mean that the lawyer did anything wrong. According to statistics released by the state bars, the vast majority of bar grievances are dismissed without further investigation, and relatively few ultimately result in discipline.  Thus, the fact that a bar grievance has been filed should not be viewed as confirmation that the lawyer has acted unethically.

For that reason, it is always a good idea for all parties involved to pause, take a breath and get help to navigate the situation. The majority of bar grievances are dismissed for a lack of merit or evidence, which further underscores why, as a matter of public policy, a person filing a grievance is protected by an absolute immunity and why the allegations will be handled confidentially. Persons who believe they have been harmed by lawyers should be free to file their allegations without fear of reprisal, but the protections built into the system help provide that meritless complaints should not survive.