Mark Dubois
Mark Dubois ()

Lots of people file grievance complaints about lawyers. One of the quirks of our system is that there is no standing requirement to become a complainant against a lawyer in a discipline case.

Unlike malpractice, there is no requirement in lawyer discipline that the misconduct have caused any harm to the complainant. Nor is there any requirement that the complainant necessarily have an attorney-client relationship with the lawyer. Theoretically, someone walking past a courtroom and observing me struggling to examine a witness or stumbling my way through an argument might file a complaint that I was incompetent, and I would have to answer it, even though my client won the case and thought I did a great job.

Until recently, the act of filing a lawyer disciplinary grievance was cloaked with absolute judicial immunity under the holding of a 1996 case called Field v. Kearns. In 2007, in a case called Rioux v. Barry, the Supreme Court, in a matter involving a state official who filed a complaint against his supervisors and some others who had complained about his conduct, held that while judicial immunity would apply to cases seeking damages for tortious interference with a contract, it would not apply to cases sounding in malicious prosecution. Thus, because truth or falsity of a statement and the presence or absence of malice are issues of fact, defendants in malicious prosecution cases can no longer get them dismissed by claiming that they had an absolute right to make the allegations being complained of.

In a footnote in Rioux, the Supreme Court acknowledged that its ruling was inconsistent with the rule of Field v. Kearns. While the Shepard’s editors treated Rioux as “criticizing” Field, two trial judges have read it as overruling it. I think they may be wrong, because the Supreme Court could have just as easily said it was overruling Field as noting that the Rioux rule was inconsistent with Field, but they did not. They very well might have been waiting until a lawyer discipline case gave them the opportunity to decide whether the rule of Field was no longer good law or whether lawyer discipline complaints should be treated differently than other malicious prosecution matters. Remember, appellate courts rarely decide something collateral to the matter that has been fully briefed before them.

In any event, two trial courts have now treated Field as being overruled by Rioux. And that means that lawyers who feel that they have been harmed by a person filing a grievance without a reasonable basis in fact or law or for malicious purposes can sue their accusers once the case is dismissed. I mostly represent lawyers these days, and I can tell you that many lawyers accused of misconduct want to sue their accusers. I usually caution them that revenge is a dish best served cold, and that if they still feel the same way in six months, we can discuss the wisdom of doing so. Few do.

Part of being a self-regulated profession is accepting that we must not make it seem that we are erecting barriers to prevent inquiry into our conduct by well-meaning, though perhaps misinformed, members of the public. We even have a rule requiring us to report our colleagues if we come to know of misconduct that raises a substantial question of their character and fitness in other respects. The specter of a retaliatory lawsuit in response to a good-faith belief that there may have been misconduct may well have a chilling effect on such reporting. Indeed, the lawyer defendant in one of the post-Rioux malicious prosecution cases apparently believed that he was ethically required to file the grievance complained of.

Perhaps the answer to whether the rule of Field should remain good law depends on your perspective. When I was chief disciplinary counsel, I encouraged complaints because it was the best way for us to find out if bad things had happened. Now, I see first-hand how disruptive and worrisome even a baseless grievance can be to a lawyer’s practice and mental well-being.

I have been grieved, and even though they have all been dismissed, they were the first thing I thought of every morning and the last thing I worried about before I went to bed every night until they were done with. And, like most lawyers, I played the “what-if” game every time, wondering what I would do if I were disbarred over the matter.

Would I like to sue my accusers? Of course. Will I? Probably not.•