Grievance – Closing Discretion Upheld

The Alaska Supreme Court has held that a complainant unhappy with Bar Counsel’s decision not to further investigate his complaint failed to establish a basis for review.

The court explained its review of the intake process

We now consider a complainant’s application for relief contending that Bar Counsel erred in closing the complainant’s grievance without a formal investigation. Resolving this matter requires explaining more fully how we review a grievance closure. First, we expect Bar Counsel will base a grievance closure on the facts of record, applicable law and policy, practicality, and professional experience and judgment; when Bar Counsel does so we will afford Bar Counsel broad discretion. Second, when reviewing a grievance-closing decision for abuse of discretion, we look to ensure that the decision is not arbitrary, capricious, or the result of a breakdown in the process. On that standard we see no abuse of discretion in Bar Counsel’s decision to close this complainant’s grievance without a formal investigation.

What Bar Counsel had done

The grievance-closing letter reflects that, in addition to [complainant] McGee’s submittals and arguments, Bar Counsel considered: (1) the ALJ decision and underlying record regarding the allegations of impropriety in OPA’s contracting process; (2) the Department of Administration’s report about OPA’s contracting process and McGee’s allegations of wrongdoing by OPA’s contract investigator and attorneys; and (3) the Department of Law’s response to McGee’s assertion that the Department of Administration’s investigative report was a “whitewash.” We conclude that Bar Counsel reasonably could determine that a formal investigation would not bring to light any new material facts relevant to McGee’s grievance.

The letter also reflects the application of experience and professional judgment based on the existing record and relevant considerations: Bar Counsel provided a reasonable explanation that the known facts did not suggest a connection between OPA’s use of the investigator and any possible ethical violation by the attorney involved in this matter, that a violation would have to be proved to an area hearing committee by clear and convincing evidence, and that there was no good reason to use Bar resources to present a case to volunteer area hearing committee members when there was very little likelihood of proving an ethical violation. The Discipline Liaison reviewed McGee’s grievance file and the grievance-closing decision, as requested by McGee, and concurred that a formal investigation was unwarranted. McGee has not suggested that either Bar Counsel or the Discipline Liaison was improperly motivated or influenced in the decision-making process, and it is clear that there was no breakdown in the grievance process.

In other words, Bar Counsel can exercise reasonable discretion at intake subject to court review, 

Works for me. (Mike Frisch)