Misuse of the disciplinary system: When squealing isn’t appealing

Listen to this article

Remember when you were a kid and tattling was an art form?

Perhaps you were the tattle-tale, never hesitating to rat out a classmate for flooding the sink again, or to throw your brother under the bus for breaking a lamp. Or, perhaps you were the told-on; somehow your little sister found out everything you were doing wrong and let your parents know with great gusto that you were indeed doing it wrong. (Not that I’m bitter about that or anything.)

But, also, remember, how nobody liked a snitch? Sure, there were times when telling an adult what happened, and who did it, was important. But if you were the type to run to your teacher or your parents with every minor slight, bit of gossip, or just plain made-up infraction in order to get attention, you quickly learned that not only did you not get that attention, but you would also lose the respect of everyone else.

Sadly, not all of us have learned the lesson, and some of us (let’s call it a loud few) have brought this mentality into our professional lives.  According to its annual report, the Office of Lawyer Regulation’s central intake received 1,866 inquiries and grievances in the 2016-17 fiscal year. If anecdotes can substitute for data, a small but increasing number of these contacts are not for what the Supreme Court Rules would consider to be actionable infractions, or even for fee disputes. (Those come in, too, but may be referred to fee arbitration, since pure fee disputes are outside of the OLR’s scope.)

Nuisance grievances from clients and other lay people are one thing—yes, they’re annoying and scary and need to be responded to even if they seem silly. But, at the same time, we don’t expect lay people to know what is and isn’t a violation. There is no real barrier to filing a grievance (it doesn’t cost anything and can be made by phone or by email) and sometimes, when people feel they’ve been slighted, this is the only avenue Google tells them is available.

Some parties, however, are misusing the disciplinary system and are lodging complaints in an attempt to retaliate, intimidate, or gain a litigation advantage. In other words, they tattle. Don’t like how opposing counsel objected to your pro se attempt at discovery? File a grievance accusing him of lying in order to force the issue. Jealous of your ex-boyfriend’s new girlfriend, who just so happens to be a lawyer? File a grievance accusing her of using CCAP and other means to stalk you. Don’t want to pay your bill? File a grievance complaining about every typo in an email and the time it took two days to get a return phone call. (These are fictionalized but not far off.)

Unfortunately, the bigger trouble seems to be that (some, not many, but too many) lawyers are doing the same thing, either under their own name or through their clients.

Yes, as on the playground, there are times when lawyers do need to report bad behavior. SCR 20:8.3 imposes a duty to report professional misconduct, but a very narrow one.  We have a duty to report our colleagues when we have actual knowledge they have violated a rule in such a way that “raises a substantial question” as to their “honesty, trustworthiness or fitness as a lawyer in other respects[.]” Substantial question means just that—“a material matter of clear and weighty importance.” (SCR 20:1.0(o).)

This is a very high standard, and for good reason—if lawyers were required to inform the Office of Lawyer Regulation about every suspected infraction, no matter how minor, some of us would be spending our entire lives filling out grievance forms. That said, if you witness another lawyer stealing from a client, or trying to bribe a judge, or trying to practice while significantly medically or chemically impaired, then yes, the duty is likely triggered. Give the OLR a call.

Anything short of that most likely involves judgment call: Although there is no duty to report violations that do not rise to the level of seriously calling into question one’s character and fitness to practice law (and there is no duty to report suspected violations at all), there is also no prohibition against making a good-faith report. But the main thing is good faith.

Grievances made not because a lawyer has committed a real wrong but because someone wants attention or advantage aren’t just an expense and a worry for the respondent lawyer; they clog the already burdened regulatory system and generally reflect poorly on the profession. It’s bullying. If you are thinking of doing this, just stop.

And also, it’s important to remember that just as you are human, other lawyers are also human. They make mistakes and have bad days—they misdirect mail and use intemperate language and add the wrong columns of the spreadsheet together, just like you do. They hit “reply all” when they should be hitting “reply,” just like you do. Little missteps should be the subject of apologies and corrections, not grievances.

I didn’t like it when my little sister tattled on me (though that time she found cigarettes in my room I totally deserved it), but that’s part of being a kid. You’re a grown adult with an advanced degree and a license to practice law; leave gratuitous tattling on the playground.

Stacie Rosenzweig is an attorney at Halling & Cayo S.C. in Milwaukee. Her practice centers on working with lawyers and other credentialed professionals in a variety of licensing, professional responsibility and disciplinary proceedings.