Role of grievance process reviewers to be clearly defined

first_img November 15, 2005 Senior Editor Regular News ‘There may be some tweaking, but I think it’s absolutely necessary this be done’ Gary Blankenship Senior Editor The Bar Board of Governors is considering adding to the Standing Board Policies a guide to a little-known but critical part of the Bar’s grievance process — board members who act as designated reviewers of grievance committee actions.The Disciplinary Procedure Committee presented the policies on first reading at the board’s October 21 meeting in Palm Coast. DPC Chair Murray Silverstein said they will come back to the board for final approval at its December meeting, and that some further alterations may be made.Silverstein said the committee had considered amending Bar rules, but decided it was better to provide the guidance in Standing Board Policies. He added that one of the recommendations of the Special Commission on Lawyer Regulation will be to provide more guidance for designated reviewers.“Existing Bar rules and policies don’t give a lot of specificity on the roles of designated reviewers,” Silverstein said. That, he added, can cause uncertainties for new board members who become reviewers and for complainants, lawyers, and their counsel who are in the grievance process.Questions include: Should reviewers meet with grievance respondents and their counsel before a grievance committee acts, and if so, should they inform and invite Bar counsel for the case? Another issue is whether a reviewer getting a report of a grievance committee action should rely on a summary or request all the records.The policies give multiple options to reviewers for handling cases, plus standards for each option, Silverstein said. The policies reinforce that the designated reviewer is not an adjudicator but part of the disciplinary process with some oversight responsibilities.“We also did not want to create challenges to the review process by enacting mandatory procedures and other requirements,” said Bar Counsel Tony Boggs, who oversees the Bar’s grievance program. “This is simply a guideline for engaging in a review.”“It looks good,” said board member David Rothman, who also serves on the Special Commission on Lawyer Regulation. “There may be some tweaking, but I think it’s absolutely necessary this be done.”Board member Chobee Ebbets agreed, saying better guidelines for designated reviewers will enable them to be more helpful to local Bar counsel.“It actually helps expedite some of the resolutions,” he said. “I really think this is an important change and one that will help.”Board member Ian Comisky, like Ebbets, is a member of the DPC, and said there was some question whether any guidelines were needed.“This [policy] language is much better than when it started out,” he said. “It gives some discretion and some guidance without [reining] in the reviewer too tightly.”The board took no vote on the recommendation. The vote will come on second reading at the December meeting.The new proposed Standing Board Policy 15.76 begins: “The member of the board of governors designated to review the actions in a grievance case has the authority to review pursuant to rule 3-7.5, Rules Regulating The Florida Bar. The designated reviewer has the responsibility under standing board policy 15.75 to conduct a review when requested to do so within the time frame allowed by the rule.”Options in the policy given to the reviewer are to recommend that the matter be referred to the grievance mediation program; that the matter be referred to the Bar’s fee arbitration program; that the attorney be diverted to the Bar’s Practice and Professionalism Enhancement Program with the file closed; that no probable cause be found; that a letter of advice be issued with a finding of no probable cause; that a finding of minor misconduct be made; or that a finding of probable cause justifying further disciplinary proceedings be made.The policies (in accord with court rules) give the reviewer 30 days from the grievance committee action to conduct a review, and require that the respondent or complainant must request the review within that time. The reviewer will have the summary of the grievance committee action and can request the file of the Bar counsel in the case, which will include the record before the grievance committee.In making a recommendation, the policies require that the reviewer presume the grievance committee was correct in its action, although Silverstein said the DPC is planning to change that to require that the grievance committee’s action be given great weight or due deference.Other guidelines include that the reviewer is not an adjudicator but rather an evaluator with broad discretion; that the reviewer should consider the size of the grievance committee and the closeness of its vote; that the reviewer should contact Bar counsel before making outside inquiries; and that in certain circumstances the reviewer may discuss the case with the investigating member of the grievance committee.If the reviewer believes further investigation or consideration is necessary, the policies provide the case should be returned to the grievance committee rather than forwarded to the board’s Disciplinary Review Committee. “Remand is preferred as it allows the grievance committee to reconsider an issue in light of the position of the designated reviewer and provides the designated reviewer with an opportunity to re-evaluate the grievance committee’s decision after it has considered the issues on remand,” the proposed policies said. 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