Tuesday, June 9, 2015
Several years ago I posted an article on the ins-and-outs of dealing with a bar complaint over at Build A Solo Practice LLC.
Some of the basics remain unchanged
First, in any disciplinary complaint, the bar prosecutor is the key decision maker. If the prosecutor decides to bring charges, charges will likely be brought. If the bar prosecutor wants to admonish the lawyer, the lawyer will likely be admonished. If you get a complaint, you must deal with it. There is nothing more important that I can say. Failure to respond to a complaint is a free-standing ethical violation that is the easiest charge in the world to prove. Bar counsel will only get the most negative view of your ability to practice if you won't deal with them. If you need more time, call or write and request it. If you need help in responding, get it. Second, understand the disciplinary process in your jurisdiction. What sanctions may be imposed? How are addiction/depression issues dealt with? Who (court, disciplinary board, bar prosecutor) shapes policy? The rules that govern bar discipline procedures are available online virtually everywhere. If you have a complaint against you, understand the process and know what avenues for resolution of a complaint exist.
Seven rules for avoiding and resolving Bar complaints
1. Avoid problem clients. If the client has wildly unrealistic expectations, wants much justice than he or she can afford, or has had several prior lawyers all of whom are liars and cheats, it may be prudent not to get involved. If you decline the case, promptly confirm that fact in writing. Bar Counsel gets plenty of cases where the lawyer and putative client disagree on whether or not there is an agreement to represent. doubt may be resolved in the client's favor. Return any documents if you are not taking the cases
2. Provide competent service. There is no substitute for a sufficient degree of obsessive-complusive behavior toward deadlines, maintaining your calender and being able to document your time and attention to the client's matter. A well-kept file can serve you well if the bar comes calling
3. Communicate. Return calls. Send written updates. Care about the client and the matter. As many complaints arise from a bad bedside manner as a bad law practice. I'm convinced that there are plenty of marginally competent lawyers who never get complaints because their clients like them.
4. Don't encourage unreasonable expectations. This can be tough in practice as the matter evolves and may be unavoidable to some extent, but it is something to keep a close eye on throughout the representation
5. Honesty is the only policy. If there is bad news, deliver it. If it involves your conduct, don't conceal it from the client. The adage that it's the cover up not the misconduct that ruins a career is absolutely true in bar discipline. Don't make a minor problem a suspension-worthy offense. Abide by the rules that relate to honesty with tribunals, opposing parties and third parties
6. Other peoples money. The rules of escrow of entrusted funds are the most important to all lawyers who wish to maintain their license. Know the rules: are you obligated to escrow unearned fees? Escrow violations are considered the most serious violations throughout the country. Follow the rules and keep the required records or have a post-lawyer career plan.
7. If the client fires you (which is the client's right), don't react in anger. While you can protect your right to fees, you should return the file immediately and fully cooperate in the transition to new counsel. Many bar discipline cases have a genesis in a suit for unpaid fees, so be prepared for that if you sue the former client.
I'd welcome the thoughts of readers on the subject. (Mike Frisch)