Complaint Resolution Guidelines

Pursuant to Rule 5.10, the chief disciplinary counsel will refer to the complaint resolution program those complaints it believes may be resolved through an alternative resolution process rather than through formal disciplinary proceedings. Such complaints shall be processed as provided by these guidelines.

The complaint resolution program shall be administered by a three person complaint resolution committee, which will oversee the complaint resolution panel of volunteers, hereinafter referred to as panel members, as well as the complaint resolution program staff coordinator. The complaint resolution committee shall be appointed by The Missouri Bar board of governors, with the chair designated by the president of The Missouri Bar. The terms of the complaint resolution committee appointees shall be for three years, except with the first committee having staggered one, two and three year terms. No Committee member shall be requested to serve more than two successive terms. Terms of the panel members shall be for four years, and no member shall be requested to serve more than two successive terms.

The complaint resolution program staff coordinator shall have the duties of maintaining all files received; assignment of panel members; giving notices; making arrangements for all conferences; record keeping; compiling of reports to The Missouri Bar and chief disciplinary counsel; and handling administrative tasks. The complaint resolution program staff coordinator shall be designated by the executive director of The Missouri Bar.

The chief disciplinary counsel will first determine whether the complaint appears appropriate for referral to the complaint resolution program. After a complaint is referred to the complaint resolution program, the complaint resolution program will solicit an answer from the respondent lawyer. Once the answer is received, the complaint resolution program chair or staff coordinator will assign the matter to a resolution panel member who will solicit further information from the parties and hold a mediation-like conference. Following the conference, the panel member will prepare an appropriate report to be returned to the complaint resolution program coordinator for forwarding to the chief disciplinary counsel's office. If the respondent lawyer does not participate, or if it appears that the respondent has engaged in serious misconduct, the matter will be returned to the chief disciplinary counsel for further proceedings. If the complainant does not participate, the complaint resolution committee will refer the complaint back to the chief disciplinary counsel noting such.

The goal of this program is to assist the chief disciplinary counsel in the resolution of grievances and to assure the public and the legal profession that such grievances can be resolved in a just fashion and in accordance with the reasonable expectations of all parties.

Lawyers will be nominated to serve on the complaint resolution program by the president of The Missouri Bar, who will forward their names to The Missouri Bar board of governors for consideration for appointment to the complaint resolution program. In order to keep The Missouri Bar apprised of the complaint resolution program's work, the complaint resolution program will make a quarterly report to the president of The Missouri Bar concerning the progress of the complaint resolution program.

Panel Procedures

1. The first step in the process is the referral of the complaint to the complaint resolution program. After the chief disciplinary counsel has determined that the complaint is appropriate for referral, the chief disciplinary counsel staff coordinator will send a letter to the complainant and the respondent advising them that the matter is being forwarded to the complaint resolution program. The chief disciplinary counsel staff coordinator will send the chief disciplinary counsel file to the extent that the same relates to the complaint against this lawyer, including the complaint and the letter advising the parties of the reference to the complaint resolution program, to the complaint resolution program staff coordinator.

2. After receiving the file from the chief disciplinary counsel, the complaint resolution program staff coordinator will set up the complaint resolution program file. The complaint resolution program staff coordinator will assign a complaint resolution program docket number to the matter using as a prefix the year the file was received, e.g., 96-1, 96-2, etc. After the matter is assigned to a panel member (see section 8 below), the panel member's initials will be added as a suffix. The complaint resolution program staff coordinator will prepare two index cards for the matter. The complaint resolution program staff coordinator will maintain one set of index cards in numerical order and one set in alphabetical order by the respondent lawyer's last name. The complaint resolution program staff coordinator will also maintain a computerized record of each matter, which will contain the same information set forth on the index cards.

3. The complaint resolution program staff coordinator will set up a confidential file for each matter, which will contain the original documents submitted to the complaint resolution program by the chief disciplinary counsel, the complainant, the respondent lawyer or third parties. This file will remain at all times under the custody of the complaint resolution program. The matter file, the index cards and the computerized docket will all be prominently marked "confidential", and the complaint resolution program staff coordinator will take all reasonable steps to maintain such confidentiality. Absent an order from the Supreme Court of Missouri, the only persons who shall have access to the confidential files of the complaint resolution program are the complaint resolution committee, the complaint resolution program staff coordinator, the complaint resolution program secretary, members of staff of the chief disciplinary counsel, personnel authorized by the Supreme Court of Missouri, and, except as to internal memoranda, the complainant and respondent lawyer and their respective counsel, if any.

4. Promptly after receipt of the file from the chief disciplinary counsel, the complaint resolution program staff coordinator will send a letter signed by the chair of the complaint resolution committee to the respondent lawyer with a copy to the complainant notifying the respondent of the receipt of the file from the chief disciplinary counsel and requesting a written response to the complaint with twenty days. In addition, both parties will be asked to sign an agreement committing to voluntarily participate in the complaint resolution conference. All written communications from the complaint resolution program to the parties shall bear the legend, "ALL PROCEEDINGS OF THE COMPLAINT RESOLUTION PROGRAM ARE CONFIDENTIAL, AND ANY UNAUTHORIZED DISCLOSURE RELATING THERETO IS PROHIBITED BY LAW." In addition, all envelopes should be marked "PERSONAL AND CONFIDENTIAL."

5. If the complaint resolution committee does not receive a reply from the respondent, the complaint resolution program staff coordinator will send a second letter advising the respondent that failure to respond within ten days will result in the case being returned to the chief disciplinary counsel. This letter will be sent certified mail, return receipt requested.

6. If the respondent does not answer after an additional ten days, or if the respondent does not sign the form consenting to participate in a resolution conference, the complaint resolution program staff coordinator will return the file to the chief disciplinary counsel, with a closing memorandum. The complaint resolution program staff coordinator will send a letter to the respondent, with a copy to the complainant, advising the respondent that the matter has been returned to the chief disciplinary counsel and enclose a copy of the closing memorandum. The appropriate notation will be made in the complaint resolution program records.

7. If the complainant does not agree to participate in the resolution conference by returning the signed consent form, the complaint resolution committee will review the matter before returning it to the office of chief disciplinary counsel with an appropriate recommendation. The complaint resolution program staff coordinator will send a letter to the complainant, with a copy to the respondent, advising the complainant that the matter has been returned to the chief disciplinary counsel and enclose a copy of the closing memorandum. The appropriate notation will be made in the complaint resolution program records.

8. If the respondent files a response and both parties agree in writing to participate in the resolution conference, the complaint resolution program staff coordinator, in consultation with the complaint resolution committee chair, will assign the matter to a panel member. Assignments will be made to panel members on a rotating basis, by geographic location. Panel members will keep the complaint resolution program staff coordinator informed if they expect to be unavailable for any extended period of time.

9. Before determining the panel member's availability to serve, the complaint resolution program staff coordinator shall advise the panel member of the identities of the complainant and respondent lawyer in order to determine the possibility of conflicts of interest between the panel member and the parties. The panel member should attempt to determine whether members of the panel member's firm or organization have an adversarial relationship with either party. In doing so, the panel member should keep in mind that the complaint resolution process is confidential, and any inquiries concerning conflicts should be made discreetly. If the panel member does not believe that he or she can serve as an impartial neutral, the complaint resolution program staff coordinator should be advised to assign the matter to another panel member. Additionally, prior to the start of the conference process, either party may timely object, within ten days of the receipt of notification of the name of the assigned panel member, and exercise peremptory challenge to the panel member serving as the panel member, at which time the panel member must be excused and advise the complaint resolution program staff coordinator that a new panel member must be assigned to the case. Only one such challenge shall be allowed to each party.

10. Once the panel member has decided that they can serve, the panel member and the complaint resolution program staff coordinator will set a date for the conference within a period from twenty to forty days after the date of the panel member's assignment to the matter. If the prospective panel member is unavailable during this interval, the complaint resolution program staff coordinator will choose another panel member in consultation with the complaint resolution program chair.

11. The complaint resolution program staff coordinator will send a letter to the panel member, confirming the panel member's assignment to the matter, enclosing a copy of the complaint, the response, and the notice of the complaint resolution conference (see section 12 below), setting forth the proposed conference date and time. The complaint resolution program staff coordinator will send a copy of this letter together with a copy of the complaint and the response to the complainant and the respondent. This letter and all other communications between the complaint resolution program and panel member will bear the legend: "PERSONAL AND CONFIDENTIAL: TO BE OPENED BY ADDRESSEE ONLY."

12. After reviewing the file, the panel member will choose the location of the conference. The conference may be held at a private conference room in the panel member's offices, at The Missouri Bar Center, or at another convenient location chosen by the panel member. Conferences will be held in circumstances that assure confidentiality. The complaint resolution program staff coordinator will make arrangements for the use of the facilities for the conference. The panel member should determine, prior to the conference, whether there are any documents, witnesses or information which the parties should bring to the conference that would assist the process. The complaint resolution program staff coordinator will schedule all conferences and send a notice of the complaint resolution conference to the parties; this notice will contain the date, time and place of the conference and will set forth the documents, witnesses or information requested by the panel member. The panel member should advise the parties to forward all documentary evidence to the panel member ten days prior to the conference date.

13. The panel member shall consider and decide all requests for adjournments, but adjournments should be granted sparingly. In no event should the conference be adjourned more than seventy-five days after the complaint resolution program has referred it to the panel member. If the respondent does not appear, the panel member will refer the matter back to the complaint resolution program, which will in turn refer it back to the chief disciplinary counsel. If the complainant does not appear, the panel member will refer the matter back to the complaint resolution program for referral to the chief disciplinary counsel.

14. The panel member may recommend, after consultation with the complaint resolution committee, that the matter be disposed of without a conference. Although the complaint resolution committee may review such recommendation and consent to it, the complaint resolution program discourages such dispositions. However, if the complaint resolution committee agrees to such a decision, the complaint resolution committee will prepare a closing memorandum setting forth the reasons for this decision and will return it with the file to the complaint resolution program staff coordinator. The complaint resolution committee chair will send a letter to the complainant, with a copy to the respondent, advising of the disposition and enclosing a copy of the closing memorandum. The complaint resolution program staff coordinator will return the file with the closing memorandum to the chief disciplinary counsel and will make an appropriate notation in the complaint resolution program's records.

15. The panel member will conduct the conference informally. At the outset, the panel member should make clear to the parties that the panel member is serving as a facilitator and not a judge. The panel member's role is to promote communication and suggest ways of resolving the dispute; the panel member is not to impose a settlement on the parties. The panel member shall make every effort to hear all the relevant facts, review all the documents, familiarize herself or himself with any controlling relevant legal principles, and seek to bring about an acceptable resolution between the parties. The panel member should refrain from using legal jargon. The panel member should advise the lawyer respondent before the conference begins that the panel member must report any serious ethical violations as outlined under Supreme Court Rule 4-8.3. If notes are taken by the panel member during the conference, they should be destroyed immediately thereafter. The panel member should make sure that any proposal offered for resolution of the matter is clearly understood by the parties and perceived to be fair. If the parties cannot reach an agreement, the panel member should return the matter to the compliant resolution program staff coordinator with the instructions that it be forwarded to the chief disciplinary counsel.

16. The panel member should have the parties sign an agreement setting forth the terms of the resolution of the complaint. The panel member should keep in mind that performance of the agreement should take place within a reasonably short time after the conference so that the complaint resolution program is able to close the file. The panel member should advise the parties that they may contact the panel member if they have any difficulty enforcing the agreement. However, if one of the parties refuses to abide by the agreement, the matter should be returned to the complaint resolution program so that it may be referred back to the chief disciplinary counsel for further proceedings.

In accordance with Supreme Court Rule 4 -1.8(h), the lawyer respondent shall not make an agreement in the conference that limits the lawyer respondent's liability to the complainant for malpractice unless permitted by law and the complainant is independently represented in making the agreement, or settle a claim for such liability with unrepresented client or former client without first advising that person in writing that independent representation is appropriate.

17. At any time, the panel member may refer the complaint back to the complaint resolution program for review by the Committee if the respondent will not participate in the complaint resolution program or if the panel member believes that the respondent has engaged in misconduct warranting proceedings pursuant to Supreme Court Rule 5. Following the committee's review, the complaint will be referred back to the office of chief disciplinary counsel.

18. At the conclusion of the conference, or if the matter is closed prior to the conference, the panel member will prepare a closing memorandum reflecting the disposition of the matter, which will promptly be sent to the complaint resolution program staff coordinator. The complaint resolution program staff coordinator will forward the closing memorandum to the chief disciplinary counsel within ten days of the panel member's disposition of the matter. The complaint program staff coordinator will then forward a copy of the closing memorandum, appropriate disposition letter and agreement to the complainant and respondent.