A Primer on Grievance Confidentiality

December 5, 2022
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The legal profession traditionally has enjoyed the privilege of policing its own members. Michigan’s legal profession, under the supervision of the Supreme Court, has policed its members since 1978 by means of the Attorney Grievance Commission. The Commission, acting as the Court’s prosecution arm for attorney discipline, is obliged by court rule to handle most of the policing out of the public eye.

          Investigations by the Commission’s grievance administrator are deemed by MCR 9.126 to be “…privileged from disclosure, confidential, and may not be made public.” The intent of Rule 9.126 is to protect the reputation of attorneys who find themselves facing groundless charges of professional misconduct. [1]

          Only a relative handful - barely five percent - of the grievances that are filed with the Commission will ever end up in the spotlight of public proceedings in front of the Attorney Discipline Board. All the others will be concluded in confidence, with the final disposition communicated by the Commission to no one other than the complainant and the respondent-attorney.

          Confidentiality attaches to a grievance from the moment it is filed with the grievance administrator, and it remains in place unless and until the grievance administrator files a formal complaint with the Board. Given the ease with which an accusation of professional misconduct can be made, the importance of confidentiality is obvious.

          Start with the fact that anyone can file a grievance. Most grievances are filed by clients, but the existence of an attorney-client relationship is not a prerequisite to act as a complainant.

[1] GA v Lawrence A. Baumgartner, Case Nos 65-88-GA; 109-88-GA (ADB 1989)

          Moreover, the format of a grievance is uncomplicated. There are only three requirements: (1) it must be in writing; (2) it must describe the alleged misconduct, including the approximate time and place of it; and (3), it must be signed by the complainant. [2] Unlike a request to investigate a judge, a complainant who wants to file a grievance about an attorney does not have to verify on oath the truthfulness of the allegations. [3]

           And, even though most grievances are filed reasonably close in time to the alleged misconduct, that is not a requirement either. There is no statute of limitations for professional misconduct. The mere passage of time does not preclude a complainant from filing a grievance. [4]

          Finally, and most significantly, complainants are “absolutely immune” under MCR 9.125 for statements and communications they transmit to the Commission. An attorney has no legal redress even for an untruthful grievance that may have been maliciously filed by a complainant in bad faith. [5]

          Absolute immunity is meant to allay any skepticism on the part of laypersons about the fairness of a system in which attorneys regulate attorneys. Without the shield of absolute immunity, would-be complainants who fear possible retaliation might be discouraged from filing a grievance.

          Granting absolute immunity to complainants helps encourage those who have some doubts about an attorney’s conduct to submit the matter to the proper agency for determination. This encouragement is necessary, according to the American Bar Association, because “…a profession that wants to retain the power to police its own members must be prepared to sacrifice to that cause.” [6]  Figures reported by the Commission help illustrate the extent to which Michigan’s legal profession is making that sacrifice.

[2] MCR 9.112(B)

[3] MCR 9.220(A)

[4] GA v Andrea J. Ferrara, Case No 98-184-GA (ADB 2000)

[5] Kelley v Peet, unpublished per curiam opinion of the Court of Appeals, issued February 25, 2016 (Docket No. 326669) (citing Colista v Thomas, 241 Mich App 529; 616 NW 2d 249 (2000); see, also, Rouch v Enquier & News of Battle Creek, 427 Mich 157; 398 NW 2d 245 (1987)

          From 2012 through 2020, there were 21,048 grievance files opened; the grievance administrator dismissed 15,816 of them. [7] The grievance administrator has the discretion to reject a grievance either at the first step when it is filed (if it is determined to be facially insufficient) [8] or at the next step after the intake department reviews the answer submitted by the respondent-attorney. [9] All told during that nine-year period, the grievance administrator dismissed about 75% of the grievances because they did not warrant further investigation.

          One must be cautious about drawing conclusions from the Commission’s raw data. There are many reasons why a grievance may not warrant further investigation. Prosecutorial discretion requires the grievance administrator to look at more than just the apparent truthfulness of the complainant’s allegations.

          For example, a grievance alleging a simple fee dispute, no matter how truthful, is a likely candidate for dismissal. Fee disputes are supposed to be resolved by the courts, not by the attorney discipline system, so further investigation would be pointless. Thus, without knowing the basis for the grievance administrator’s exercise of discretion in a particular file, one cannot estimate with any accuracy how many of the dismissed grievances might have been untruthful, or perhaps malicious.

          Nonetheless, the rate at which grievances were dismissed during those nine years suggests that complainants are not afraid to come forward even as to doubtful cases of misconduct.  It shows that Michigan’s attorney discipline system is functioning as envisioned by the ABA recommendations. The raw data also reflects the magnitude of the task the Commission faces to keep confidential the many thousands of grievance files that have been opened during its 44-year history. Maintaining the confidentiality of all files which come within Rule 9.126 is an important part of the Commission’s daily routine.[10]

6] ABA Model Rules for Lawyer Disciplinary Enforcement No. 12 (Comment)

[7] https://agcmi.org/reference/agc-statistics

[8] MCR 9.112(C)(1)

[9] MCR 9.114(A)

          To that end, the grievance administrator will never confirm or deny the existence of a grievance. Specific details of pending investigations are not disclosed either to the complainant or to the respondent-attorney. Subpoenas for confidential files are met with a motion to quash. Requests pursuant to the Freedom of Information Act are denied. [11]

          Commission employment is at-will. Both the grievance administrator and the deputy administrator are appointed by, and serve at the pleasure of, the Supreme Court. All employees, attorneys and non-attorneys alike, sign a confidentiality agreement as a condition of their employment. Strict compliance with Rule 9.126 is expected from everyone on the Commission’s staff.

          Not so for a complainant. Nothing in the text of Rule 9.126 suggests that it imposes a duty of confidentiality on complainants. Furthermore, the court rule must be construed so as not to infringe on the complainant’s constitutional right to engage in the free exercise of truthful speech. [12]

           If a grievance is dismissed because it did not warrant further investigation, the complainant has a First Amendment right to publicly discuss and disagree with the grievance administrator’s determination. Preventing injuries to the reputation of attorneys is an insufficient reason to repress speech that would otherwise be free. [13]

10] In addition to dismissed grievances, confidentiality applies to files that are closed by the Commission itself, as well as files in which the respondent-attorney was admonished or placed on contractual probation.

[11] As the Supreme Court’s prosecution arm, the Commission is part of the judiciary, and therefore not a “public body” as defined by Section 232(h)(iv) of the Freedom of Information Act,

[12] RM v Supreme Court, 883 A 2d 369; 185 NJ 208 (NJ 2005)

[13] Doe v Supreme Court, 734 F Supp 981 (SD Fla 1990) [citing Landmark Communications, Inc v Virginia,435 US 82; 98 S Ct 1535; 56 L Ed 2d 1 (1978)]

          In any event, even though complainants are not bound by Rule 9.126, the risk of being sued gives them a powerful incentive to comply in order not to forfeit their absolute immunity.  

          Absolute immunity from suit pursuant to Rule 9.125 only shields statements and communications that were transmitted solely to the Commission. It does not apply when complainants publicize their allegations of misconduct in another forum. [14] Faced with the possibility of having to defend their allegations in legal proceedings, complainants may decide that remaining silent in the safe harbor of immunity is a better choice .  

          Compared to a complainant, the leeway is more limited for a respondent-attorney regarding confidentiality. Rule 9.126 provides that at the respondent-attorney’s option, “…final disposition of a grievance not resulting in formal charges may be made public.”  A respondent-attorney who opts to do so should keep two points in mind.

           First, if the final disposition of the grievance is tendered into evidence in civil litigation against a former client, the respondent-attorney must not mischaracterize its probative value. An exercise of prosecutorial discretion to dismiss a grievance is not a judicial act, nor does it rise to the level of an adjudication. The doctrine of res judicata does not apply to the grievance administrator’s dismissal of a grievance. [15]

          Second, it is only the “final disposition” of the grievance that the respondent-attorney is allowed to make public under Rule 9.126. A disclosure by the respondent-attorney about other details may run afoul of the separate duty under MRPC 1.6 not to reveal confidences and secrets of a former client.   

            How should Rule 9.126 be construed when the person who filed the grievance is also an attorney? Is it a breach of confidentiality for a complainant-attorney to announce that a grievance has been filed with the Commission against another attorney? That type of disclosure arguably violates the spirit, if not the letter, of Rule 9.126.

14] Kelley, supra at p 7, fn 8.

[15] Lindros v Sanderson, unpublished per curiam opinion of the Court of Appeals, issued September 2, 2003 (Docket No. 237568)

          Protecting the reputation of attorneys who are under investigation is a longstanding feature of our discipline system. Confidentiality is a procedural device which recognizes that an attorney’s reputation is, in the memorable words of Judge Benjamin Cardozo, “…a plant of tender growth, and its bloom, once lost, is not easily restored.” [16]

          Judge Cardozo’s flowery metaphor captures an essential truth, namely, that the mere fact of an investigation threatens to become in the public’s mind “…a slur and a reproach.” [17] Revealing that a grievance already has been or will be filed with the Commission serves no purpose other than to publicly embarrass the respondent-attorney. That is especially true if the disclosure occurs before the grievance administrator has been able to review the allegations. At best, such disclosures are unprofessional.

          Self-regulation, credibly done, keeps the legal profession independent and free from government domination. A credible process of self-regulation requires that complainants enjoy absolute immunity. Absolute immunity will necessarily increase the number of grievances involving doubtful matters. By drawing a veil of confidentiality across those doubtful matters, Rule 9.126 fairly balances the interests of the public and the legal profession.

16] People ex rel Karlin v Culkin, 248 NY 465,478; 162 NE 487 (NY 1928)

[17] Id