Periodically we receive calls from clients and other members of the Bar across the State asking questions such as:
- I received a grievance, but it was dismissed. Does the Georgia Bar keep records of grievances that have been dismissed?
- My grievance resulted in a Letter of Instruction (which I understand is not considered a form of “discipline”). Does the Georgia Bar keep a record of Letters of Instruction?
- I am applying for a new malpractice insurance policy. Do I need to disclose a dismissed grievance or Letter of Instruction?
- I am applying for pro hac vice admission to another court. Do I need to disclose a grievance that resulted in a Letter of Instruction?
Bar Rule 4-224 Expungement of Records
As part of our commitment to guiding Georgia lawyers through the disciplinary process, we want our colleagues to clearly understand how their disciplinary records are handled when a matter is dismissed without discipline. This guide explains expungement of records, including what happens to those records, your rights regarding inquiries, and your responsibilities under Bar Rule 4-224.
What Does ‘Expunge’ Mean?
“Expunge” means all records, paper or electronic, and any other evidence of the existence of the complaint which are in the State Bar’s possession must be destroyed. Despite the State Bar expunging its records, it very well could be that the grievant may retain copies of the disciplinary file. Despite dismissal, grievants commonly keep copies of disciplinary files and take them to other lawyers to review in consideration of bringing a legal malpractice claim. As the respondent in a prior disciplinary case, you should keep a copy of the disciplinary file to defend a future claim of malpractice or to provide proof of dismissal to an inquiring malpractice insurance carrier, court or professional organization.
When Will a Disciplinary Record Be Expunged?
| Type of Matter | When It’s Expunged |
|
Closed at Screening by Bar Counsel |
After 1 year |
| Dismissed After Probable Cause Investigation by State Disciplinary Board (Rule 4-204(a)) | After 2 years |
| Dismissed by the Supreme Court of Georgia after Formal Proceedings | After 2 years |
How to Respond to Inquiries After Expungement
After your matter has been expunged:
– If asked whether you’ve ever had a disciplinary complaint, you may still be required to answer “Yes” depending upon the question asked. But, under Rule 4-224 if you answer “No” you can only do so after confirming the record has been expunged.
– If asked whether you’ve ever been professionally disciplined or determined to have violated the Rules:
– Depending upon the question asked, you may still be required to answer “Yes”—but under the Rule you can only respond “No” if all grievances against you have either been:
– Referred to the Client Assistance Program
– Dismissed, or
– Dismissed with a Letter of Instruction. NOTE: a Letter of Instruction is not discipline.
Bottom line: despite the question asked or the answer given, courts, insurance carriers and other state’s Character & Fitness Committees may still be require you to disclose the occurrence of the grievance, the disposition of the grievance and documentation evidencing the disposition.
You cannot presume expungement has occurred. You (or our firm, on your behalf) should verify with the Office of the General Counsel.
Retention of Records Exception
In rare cases, the Office of the General Counsel may apply to the State Disciplinary Board to retain a record (instead of expunging it) for up to 3 additional years for good cause, with notice to you and an opportunity to be heard. They may also seek further extensions in certain circumstances.
Your Responsibilities as a Respondent
-Preserve the File: If you or your firm kept any physical or digital files related to a dismissed matter that has been expunged, you are not obligated to keep the files, but we strongly recommend keeping a copy to defend a future claim of malpractice or to provide proof of dismissal to an inquiring malpractice insurance carrier, court, or professional organization. Furthermore, preserving a copy of your file may be an integral requirement of renewing an existing policy, and it is likely a requirement of your malpractice insurance carrier’s cooperation provision of your policy.
– Confirm Expungement: Before responding to any inquiry regarding past disciplinary complaints, confirm that the matter has been expunged.
Next Steps Checklist
✔ Track the dismissal date of your disciplinary matter.
✔ Note the applicable expungement timeline (1 or 2 years).
✔ Confirm expungement with the Bar once the timeline passes.
✔ Maintain an electronic copy of all personal and firm-held records of the matter.
✔ Respond truthfully and accurately to professional inquiries per this guide.
If you have any questions about the expungement process, verifying the status of a file, or responding to a specific question from a court, malpractice carrier or professional organization, Chandler Law is here to help you wade through the issues.
By: Douglas V. Chandler
