Complete Rules Regarding Grievance Mediation

I Article IV § 2(B)(1)(g)

2 See Gov. Bar Rule V § § 3,4 & 11, as revised in November 1995.

1 These guidelines are contained in a Memorandum by the Secretary of the Board dated June 19, 1997, a copy of which is attached as an exhibit.

II. Intake
At the earliest opportunity, staff will advise grievants who have problems potentially falling within the categories specified by the Board for ADR of the existence of this program and provide them with information as to how to initiate the process. Forms and informational materials about the program will be made readily available to persons who may wish to use the service.

In order to facilitate the intake process, the aggrieved party will be asked to submit a brief written explanation of the problem to be addressed. Staff will provide assistance when needed to help the grievant with preparation of a written explanation of the problem. If insufficient information is presented upon which to assess the nature of the problem, staff may ask the grievant or a third party to provide the necessary facts.

Staff members may attempt to resolve certain problems upon intake by communicating directly with parties involved. If such an attempt is unsuccessful, that fact alone will not preclude referral of the matter to an ADR procedure.

III. Screening
Written requests for assistance will be acknowledged immediately. They will be summarized by designated staff members and reviewed expeditiously by Bar Counsel. Bar Counsel will determine (in consultation with the Chair of the Ethics Committee, when appropriate) which of the following categories applies to the situation presented:

A. Matter potentially involving a prosecutable violation of the Disciplinary Rules;

B. Matter primarily involving an arbitrable fee dispute (not implicating a DR6-10[A] violation as an illegal or clearly excessive fee);

C. Matter primarily involving an issue falling within the ADR guidelines for mediation (e.g. failure to communicate, lack of diligence, refusal to turn over file);

D. Matter not involving either a colorable DR violation or an issue subject to ADR:

E. Matter not subject to CBA Jurisdiction;

Category A grievances will be sent to the lawyer(s) complained against with a request for a written response. The grievance and response will then be submitted to the CBA's CGC in accordance with the bylaws and procedures established for that committee. If, after review, the CGC determines that the matter is one which should be handled through ADR procedures, it will direct staff to refer the matter to fee arbitration or mediation. Matters involving allegations of disciplinary rule violations against a lawyer who has been sanctioned by the Supreme Court in the preceding five years cannot be referred to ADR.

Category B matters shall be referred immediately to the CBA's Fee Arbitration Committee under the rules and procedures of that committee. If the issues presented in the initial grievance involve both fee matters subject to arbitration and non-fee matters subject to mediation, the case will normally be referred in the first instance to fee arbitration. If, after fee arbitration is concluded, there remain other unresolved issues, the matter may then be referred to mediation. In situations in which, at the time of the submission of the grievance, litigation is already pending between the parties regarding fee issues, the matter shall not be referred to arbitration unless/until the litigation is dismissed without prejudice and the parties agree to arbitration in lieu of litigation.

Category C matters will be expeditiously referred by staff to a mediator under the provisions of these rules.

Category D matters may be dismissed on intake by Bar Counsel (in consultation with the Chair of the Ethics Committee, when appropriate). These matters may include grievances which allege civil issues which should be submitted to a court for judicial determination (e.g. a postconviction claim of ineffective assistance of counsel; a claim of professional malpractice not involving ethical misconduct), factual situations which clearly do not involve Code violations (e.g. complaints about targeted direct mail solicitation letters which, on their face, meet the requirements of DR2-102(F); grievances about opposing counsel providing zealous representation to his/her client), and complaints about personal issues which do not suggest possible ethical violations (e.g. claims that a lawyer has not discharged a personal financial obligation).

Category E matters will be referred to the appropriate authority. Grievances not involving lawyers practicing in Franklin County will be referred to the Office of Disciplinary Counsel, an appropriate CGC, or to the Board. In matters involving conflict (e.g. where the lawyer named in the grievance is a member of the CBA's CGC; situations involving parties with whom the CBA is involved in non-disciplinary litigation) the matter shall be referred to the Board for assignment to an appropriate agency. Unauthorized practice of law matters (not involving a lawyer or suspended lawyer) will be referred to the CBA's UPL Committee or to the Office of Disciplinary Counsel. Complaints by lawyers about other lawyers regarding behavior that is not in violation of the Code but which might be considered as unprofessional will be referred to the CBA's Civility Committee.

IV. Mediation
Once a matter has been determined to be appropriate for referral to mediation under the Board's ADR guidelines, staff will immediately notify the complainant and the lawyer(s) involved and provide them with detailed information on the mediation process. Lawyers will be advised of the mandatory language of Gov. Bar Rule V § 4(G) requiring them to assist in ADR procedures and of the Board guidelines which provide that failure to cooperate with ADR shall be turned over to the CGC for investigation and appropriate action (which can include the filing of a formal grievance based upon non-cooperation).

Staff, in consultation with the Chair of the CBA's Mediation Committee, will select a mediator for each case from the list of qualified and trained mediators who are members of the Mediation Committee. In making such selections, consideration will be given to the following factors (which are not intended to be exhaustive or conclusive):

Neutrality -- Lack of conflict of interest; Knowledge of the area of law involved; Current availability; Location; Special language or communication skills (as needed); Other qualities which will enhance the perception of fairness by all parties.

If the chosen mediator accepts the assignment, staff will notify the parties of the selection and will inform them that any party wishing to object (for good cause shown) to the appointed mediator assigned must do so immediately upon receipt of the notice. It shall not be cause for objection that the selected mediator is or is not a lawyer. If, in the view of the Chair, a valid objection to the selection is made, the Chair will make another appointment.

Once the mediator is in place, he/she will make initial contact with the parties by phone or letter and establish a time and site for a mediation conference. It will be within the discretion of individual mediators as to whether to require written position papers of the parties in advance of the conference, and, if so, whether such papers are to be shared with the other participants. It will also be up to the mediator to decide how to proceed with the conference, whether third parties will be allowed to participate, what, if any, documents will be exchanged, whether any memorialization of the discussions is to be maintained and what follow-up procedures are necessary. Every effort will be made by the mediator to conclude the mediation proceedings as expeditiously as possible.

In any case in which mediation cannot proceed due to the failure of a party to cooperate, the nature and extent of the non-cooperation will be reported by the mediator to the CBA. If the complainant has refused to cooperate with mediation, the grievance will be reported to the CGC along with information about the unwillingness of the complainant to engage in the mediation process. If an attorney has refused to cooperate with mediation, this fact shall be reported to the CGC for possible action under Gov. Bar Rule V § 4(G).

If, during the course of the mediation process, the mediator receives information suggesting that a violation of the Code has taken place and that mediation is not appropriate for that reason, the mediator shall terminate the mediation and report to the CBA that the matter is to be referred to the CGC. In so doing, the mediator will not reveal any information regarding the substance of the attempted mediation to the CBA or to its CGC.

Except for reporting requirements specifically noted in these rules, all information received by a mediator in the course of conducting a mediation is deemed to be privileged and confidential under Gov Bar Rule V § 11.

At the end of the mediation process, the mediator will report back to the CBA (on forms provided for this purpose) the general result of the mediation. The mediator will not be asked to reveal any confidential information or provide any documents regarding the substance of the mediation. The mediator may, however, report as to the broad category of the issues involved in order for the CBA to be able to fulfill reporting requirements issued by the Board and the Court.

The result of a mediation may not be appealed. All matters raised in the initial grievance which led to the mediation will be considered to have been conclusively determined through this process and shall not be taken to the CGC, except as otherwise provided in these rules. New matters which arose after the mediation case, may be submitted by the complainant to the CBA and will be subject to the intake and screening processes outlined above.

V. Selection of Mediators
The President of the CBA will select the Chair of the Mediation Committee and will, in consultation with the Chair, appoint members of the Committee. The members of the committee will meet collectively as necessary to administer the program and will individually serve as mediators. The committee may be comprised of lawyers and non-lawyers and will be chosen to reflect a broad range of vocational specialties, educational training, and cultural backgrounds. No currently serving member of the CBA's CGC, lawyer or non-lawyer, shall be appointed to the Mediation Committee.

Initially, these rules will not specify the number of members needed to constitute the Mediation Committee or the terms for such members. As the committee gains experience in handling mediations under this program, it may propose rules about these and other administrative matters to the Board of Governors of the CBA.

VI. Training
All mediators will be provided with appropriate materials and training regarding mediation techniques and the rules of the Grievance Mediation Committee

VII. Records and Reports
The staff will maintain records of cases referred to mediation and arbitration in such form and detail as to enable the CBA to report required information to the Board and the Court. It will also maintain confidential internal records necessary to coordinate the activities of the CGC, the Fee Arbitration Committee, the Mediation Committee, the Civility Committee and the UPL Committee.

The staff, under the direction and guidance of the Chairs of these committees, may initiate procedures to determine the effectiveness of these programs. These procedures may include surveys and phone inquiries to determine whether the participants feel that the program's objectives were met and whether they can recommend improvements.

VIII. Forms
Forms will be developed by staff to facilitate the processing of cases under this program.

ADR PROVISIONS OF GOV. BAR R. V
Section 3

C. Certified Grievance Committees.

A Certified Grievance Committee shall be an organized committee of the Ohio State Bar Association or of one or more local bar associations in Ohio that permits the membership of any attorney practicing within the geographic area served by that association without reference to the attorney's area of practice, special interest, or other criteria. Upon designation by a bar association or bar associations and satisfaction of the standards set forth in division (C)(1) of this section, a grievance committee shall be certified by the Board to investigate allegations of misconduct by judges or attorneys and mental illness affecting judges or attorneys and initiate complaints as a result of investigations under the provisions of these rules. A Certified Grievance Committee may adopt and utilize written procedures for handling allegations of client dissatisfaction that do not constitute disciplinary violations, to include mediation, office practice monitoring, and other Alternative Dispute Resolution (ADR) methods. Only ADR procedures developed by the Board shall be used by Certified Grievance Committees. The procedure shall provide that mediators and ADR facilitators shall not be members of or subject to the jurisdiction of the Certified Grievance Committee.

(1) Minimum Standards. To obtain and retain certification, each grievance committee shall satisfy all of the following minimum standards:

(a) ...

(b) ...

(c) ...

(d) ...

(e) File quarterly reports similar to those required of the Disciplinary Counsel under Section 3(B)(4) of this rule. Each Certified Grievance Committee shall include in the report the results of cases referred to Board approved ADR methods along with recommendations for further action, including discontinuance or amendment of ADR procedures.

Section 4

(G) Duty to Cooperate.
The Board, the Disciplinary Counsel, and president, secretary, or chair of a Certified Grievance Committee may call upon any justice, judge, or attorney to assist in an investigation or testify in a hearing before the Board or a panel for which provision is made in this rule, including mediation and ADR procedures, as to any matter that he or she would not be bound to claim privilege as an attorney at law. No justice, judge, or attorney shall neglect or refuse to assist or testify in an investigation or hearing.

Section 11

(E) Proceedings Private; Public.
(2)(a) From the time a complaint has been certified to the Secretary of the Board by a probable cause panel, the complaint and all subsequent proceedings in connection with the complaint shall be public; except that deliberations by the panel and deliberations by the Board shall be confidential and the recommendations of the Board shall be private until filed with the Supreme Court. The Board-approved ADR process shall be confidential. Any knowledge obtained by a mediator or facilitator shall be privileged for all purposes under DR 1-103, provided the knowledge was obtained while the mediator or facilitator was acting as a mediator or facilitator.

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
MEMORANDUM

TO: Interested Parties

FROM: Jonathan W. Marshall, Secretary

Board of Commissioners on Grievances and Discipline

DATE: June 19, 1997

RE: Guidelines for the Use of ADR

The Supreme Court amended Gov. Bar R. V, Sections 3(C) and 4(G) to permit the use of ADR procedures by certified grievance committees. The procedures adopted by the Board are set forth on page 2 of this memorandum. Listed below are those matters that may be referred to ADR by a certified grievance committee after a determination is made at the intake level that the grievance does not contain sufficient allegations to constitute a disciplinary violation.

Categories of disputes eligible for ADR referral:

1. Fee disputes.

2. Continued failure to adequately communicate with client or inform the client of progress of legal matter including, but not limited to, missed appointments or conferences or unreturned telephone calls.

3. Inactivity on case, short of neglect; attorney lack of diligence; failure to provide a requested case update for client.

4. Failure to timely return client files or documents; attorney unilaterally asserting a retaining lien on client files or documents.

How the ADA process will work:
The referral to the ADR process is made before grievance fact finding has begun; either after reviewing the grievance or reviewing the grievance and written response of the attorney.

The type of ADR to be used is mediation except in the area of fee disputes when a bar shall use arbitration. Thus, mandatory fee arbitration under ADR will replace the current non-mandatory procedures.

A certified grievance committee shall not refer a matter to ADR if the respondent lawyer, in the past five years, has been sanctioned by the Ohio Supreme Court and the grievance alleges a violation of a disciplinary rule.

The mediator used shall have no connection with the certified grievance committee.

The mediator shall not violate the oath of confidentiality guaranteed in Gov. Bar R. V; if sanctionable misconduct is discovered during the mediation process, the mediation and the utilization of ADR is terminated forthwith, and the matter shall be returned to the certified grievance committee.

The respondent lawyer must cooperate with ADR pursuant to Gov. Bar R. V; and a copy of this Rule, requiring cooperation, shall be provided with the initial ADR notice to the Respondent lawyer. "Me grievant may object to utilization of ADR but in that situation the certified grievance committee will usually issue a letter of dismissal because the matter does not rise to the level of a disciplinary violation.

If the respondent attorney fails to fully cooperate in the ADR process by not responding or by not providing information concerning the grievance, such failure to cooperate shall be turned over to the certified grievance committee for investigation and appropriate action.

On their quarterly report forms, certified grievance committees shall report the number of grievances referred to ADR. Certified grievance committees shall report annually the outcome of the ADR referrals by stating the total number of matters referred to ADR, the number of matters resolved by ADR, and the number of matters which resulted in no resolution by utilization of the ADR process including the number of matters dismissed or referred elsewhere. This annual report shall further include any suggested changes or modifications for improvement of the ADR process.

The ADR result is final and conclusive, resolving the dispute between attorney and client for any grievance referred to ADR. At the conclusion of the ADR process a grievant may not bring the matter back into the grievance process.

Disciplinary Counsel may refer a grievance to an appropriate participating certified grievance committee if the grievance falls into one of the four categories established for disputes eligible for ADR. Disciplinary Counsel shall report the number of grievances referred for ADR to certified grievance committees on the quarterly report form.