To the Council of Delegates:
The Legal Ethics and Professional Conduct Committee requests your favorable consideration of a proposal to amend Rule V of the Rules for the Government of the Bar of Ohio to reinstitute the "colorable grievance" as a means of addressing a disciplinary grievance. The text of the proposed amendment follows:
5. Retention of grievance; No probable cause. If, upon investigation of a grievance, a certified grievance committee or the Disciplinary Counsel determines that the grievance is colorable, but probable cause is not established, and that the conduct of the attorney or judge, if repeated, could form the basis for a disciplinary violation, the grievance may be retained on file for a period of two years from the date the grievant was notified of the determination that the grievance is colorable. Within two years from the date the grievant was notified of the determination that the grievance is colorable, the grievance may be considered in connection with any subsequent grievance against the attorney or judge. The grievant and the judge or attorney shall be notified in writing of that determination with a brief statement of the reasons that the complaint was found to be colorable. The grievant who is dissatisfied with the determination by a certified grievance committee not to file a complaint may secure a review of the determination by filing a written request with the secretary of the board within 14 days after the grievant is notified of the determination pursuant to Division (I)(4) of this section.
The "colorable grievance rule" is not new to the Ohio discipline system. A version of this rule was in effect until 1996, when it was repealed by the Supreme Court. Thereafter, the Report of the Committee to Review Ohio’s Disciplinary Process, as approved by the Council of Delegates on June 4, 1997, recommended that the Court "reinstate the colorable grievance rule with standards clarifying the applicability of the rule."
The Legal Ethics and Professional Conduct Committee believes that it is appropriate to again make the "colorable grievance" a tool available to certified grievance committees and the Office of Disciplinary Counsel. The colorable grievance rule, as proposed, will allow disciplinary agencies to better fulfill their roles of protecting the public. It will do so by allowing a grievance, which may not be prosecuted normally, e.g., a single act of neglect, to be retained for two years. Thus, the lawyer has further incentive to avoid misconduct and the public’s confidence in the system is reinforced. The alternative to the colorable grievance is the outright dismissal of the grievance—a result that does not serve the public interest.
James P. Miller, Wilmington