GPSolo Magazine - October/November 2006
Disciplinary Actions
When Bad Things Happen to Good Lawyers
After 15 years as a State Bar of California prosecutor, I have become completely convinced that the discipline imposed against attorneys by their licensing boards arises at least 80 percent to 85 percent of the time from the failure of attorneys to document the work they do, their marginal business skills, and their failure to respond appropriately when a disciplinary complaint is lodged against them. Only a very small percentage of legitimate complaints arise from intentional malfeasance by the attorney—there are easier ways to steal money than going to law school and passing the bar exam. At the end of this article, I’ll give you my ten tips to avoid incurring a discipline complaint in the first instance (which I’ve taught in our ethics school for several years). I’ll begin, however, with some practical tips for responding to a complaint notice from your disciplinary agency.
When the Disciplinary Agency Comes Calling
First, take a deep breath. A complaint does not mean a finding of professional misconduct. It is merely a complaint. In California we estimate that we close half of the complaints at the intake stage, before they are ever referred to an investigator or prosecutor. Other jurisdictions differ, of course, but it’s important to remember that your licensing agency understands that not all complaints are legitimate and they are willing and eager to hear your side of the story.
Second, the operative words in the paragraph above are “hear your side of the story.” You must, must, must give the disciplinary agency your version of events. Any envelope from your licensing agency should be the first piece of mail you open. If you’re too nervous to do it yourself, call a lawyer friend or a licensing defense attorney and have them do it for you. I cannot overstate this point. In California, we estimate that 40 percent of the discipline decisions rendered by our state bar court result from default. This is a tragic and horrifying statistic. Tragic because the attorney worked so hard to get a license, and horrifying because the discipline imposed will almost always be greater after a default than it would have been if the attorney had participated. The licensing decision makers, in whatever form, also want the opportunity to hear from the attorney before making their decisions.
Third, after you’ve taken a deep breath and girded yourself for battle, then get out of your own way. By this I mean that we attorneys are a defensive lot, ready with the snappy comeback and quick to deflect blame. This works about as well with licensing boards as it does with our families (i.e., it doesn’t). You cannot and will not be objective about complaints against your license. There are few absolutes in law practice, but that is one of them. Therefore, you must have another lawyer to talk to about how to handle the licensing board inquiry. Does this always have to be an expert in disciplinary defense cases? No, but it does need to be someone whose opinion you value and respect, someone with whom you can be completely candid and honest, and someone who will be equally frank with you in return. You need this kind of lawyer buddy in your life generally, but never so much as when there is a licensing complaint filed against you.
Fourth, before you decide whether to employ a specialist or only to discuss the matter with an attorney friend, do your due diligence. As hard as it is, remove yourself from the equation, reduce the complaint to its essentials (abandonment, failure to respond to calls, failure to return fees, misappropriation, unconscionable fee, etc.), and assume all the facts in it are true. Then take those facts and apply them to the discipline decisions that have been made in your jurisdiction. This will give you a rough idea of the exposure you are facing and will help you decide how important it is to hire counsel to represent you. It’s the best reality check that you can give yourself.
Fifth, there are some important considerations if you do decide to hire counsel. Most important, not just any attorney will suffice. Regardless of how experienced they may be in trial matters, general practitioners are not usually equipped to handle licensing board issues. The attorney licensing field has its own unique culture (and separate organizations and listserves for prosecutors and private defense attorneys), and you need to have someone represent you who knows how the game is played and who the players are—the specific investigator, prosecutor, and judge assigned to your case.
Fortunately, these experts are relatively easy to find. Most jurisdictions have state bar magazines or newsletters with a plethora of licensing defense attorneys listed in the advertising sections. This is a good place to start. If you happen to be in a jurisdiction where no such publication exists, I suggest a computer search for licensing defense attorneys in your jurisdiction. This is also guaranteed to yield results; many discipline defense attorneys have their own websites, which also give terrific practice tips and updates on relevant law. Just finding some names, however, is not the end of the inquiry. You also need to do a computer search to find discipline cases in which they’ve appeared, to see what their results have been. If a computer search doesn’t lend any results, then consult the hard-copy decisions. It’s time well spent and will give you something concrete and objective to do to stave off the anxiety of feeling out of control.
After you do your due diligence in checking out the attorneys, call a few (or at least a couple) and set up informational, in-person interviews with them. When you make that initial call, ask if they have a résumé or a website, and if not, ask for the names of their most recent published cases. Then review these items before your interview. Also, be sure to fax the inquiry from the licensing agency to them before your face-to-face meeting, along with a written explanation from you and any supporting documents, so they will have an opportunity to consider your situation. In the first five minutes of your meeting, before you ask them any questions, give them an opportunity to give you their thoughts about the materials you have provided. This will be an important preview of their personality skills, which could prove very important to your ability to resolve the matter with as little drama as possible. After they give you their initial thoughts, you may want to ask them whether they specialize in settling cases or in taking cases to trial. This is important information for you to have, depending on whether you know you have some exposure or whether you wish to defend yourself vigorously at trial.
You will also want to talk with them about the cost of representation. I wish I could tell you the general range of attorney fees in the field, but it varies so much from one jurisdiction to another that I simply cannot. If you call around, however, you’ll quickly get a sense of the going rate. Most discipline defense attorneys I know allow their clients to pay the fees in installments, although I imagine that this practice also varies across jurisdictions. Respondents in my caseload frequently ask me whether they should hire a lawyer, and my answer never varies—absolutely, if you can possibly afford it. It will be the best money you ever spend.
Regardless of whether or not you hire counsel, be sure to respond immediately and completely to the first letter of inquiry you receive, certainly in no more than five days. If, within that period of time, you cannot gather all the materials you need to make a full response (e.g., files from storage or client trust accounting records from the bank), then send a partial response and tell the disciplinary agency that you will provide the additional materials as soon as possible. It should go without saying that you must keep this commitment—but I’m always surprised how many respondents send a partial response and then don’t send the follow-up. You need to demonstrate to the licensing agency that you take the complaint as seriously as they do. If you don’t respond, then the matter is guaranteed to escalate from the investigation stage to the prosecution stage, and public charges will be filed. You want to avoid that to the fullest extent possible, and if settlement is your goal, the sooner the better.
Finally, before turning to my practice tips, I want to tell all of you that I know for a fact that if you do incur professional discipline—at any level—you will survive it and can go on to prosper. The current president of the California State Bar, Jim Heiting, is an alcoholic in recovery who had his own disciplinary problems after he seriously injured a motorist while driving under the influence. He is very public about his past and is an inspiration to all of us. Frequently, we lawyers are harder on ourselves than we are on anyone else, and I’ve seen shame destroy more really good lawyers than anything else. Remember that we are not defined by the worst thing that we have ever done. In the words of one of my personal heroes, Maya Angelou, “When we know better, we do better.” Take whatever discipline you may receive as a learning opportunity, and then put it behind you.
Avoiding Complaints in the First Place
Now, as promised, here are my suggestions for how to avoid most disciplinary complaints—but remember, some will be filed no matter what you do.
1. Hold your law license very close. Attorneys are all too trusting of others. Remember how hard you worked for your license, and don’t give anyone else permission to take it away from you. Supervise your staff scrupulously. Don’t let them write checks, accept money, give legal advice, or lie to cover for you.
2. Never go it alone. This does not mean that you cannot or should not be a sole practitioner. My father was a sole practitioner, and he loved every minute of it. What it does mean, however, is that you need another attorney to consult when the need arises. You need someone to give you a reality check and someone who’ll cover for you if disaster strikes. Disaster for a sole practitioner can be as small as a three-week bout of the flu with no other attorney available to step into the breech.
3. Develop business skills and savvy if you don’t already have them; work smarter, not harder. Embrace the technological benefits of practicing law in the twenty-first century. There are a plethora of computer programs that will do the administrative tasks in a law office in record time. These tools have the additional salutary effect of providing a paper trail if you are ever questioned by the bar. Most state and local bar associations have a law and technology section, and the American Bar Association has a wealth of information in this regard. Avail yourself of the tools you need to minimize your nonlegal work so that you can focus on the substantive issues.
4. Have a law practice management plan and follow it. Equally important, have your employees read and follow it. Again, state and local bar associations always have information for their members about this aspect of practicing, as does the ABA. This is not rocket science, and you don’t need to reinvent this wheel. The materials are there for the asking (and your licensing agency will be very impressed with your professionalism if a complaint is ever lodged against you).
5. Keep your client trust accounting responsibilities at the very top of your priority list. You would be astounded at how many attorneys delegate this important task to their office staff (including spouses and relatives who work in the office). Whether or not your jurisdiction has a rule against allowing nonlawyers to write checks on your trust account, never, ever allow anyone else to do so. Also, you must reconcile your trust account records—personally—on a monthly basis. You can have an accountant manage your trust account record keeping (and many times, errant respondents are required to have a CPA certify their records on an ongoing basis), and you can have your employees do the basic bookkeeping, but the ultimate responsibility for your client trust account is a non-delegable duty.
6. Document, document, document all the work you do. When a client employs you, look to the worst-case scenario and protect yourself proactively by having a paper record of all communications with them. If you follow tip number three above, you’ll find out that there are wonderful computer programs that will set up forms for you requiring very little effort on the part of you and your staff but yielding huge benefits for your practice. The best-case scenario when the bar inquires is to have a two-inch stack of paper documenting your position. Believe me.
7. Respond to every telephone call within 48 hours. This is the number-one reason that clients complain to our state bar. If you are employed by a large firm and your client can’t get you on the telephone, then the receptionist can transfer the call around until some attorney can take it. No such luck for sole practitioners and small firms. Accordingly, clients call your licensing agency. It’s much easier to return a client’s call than to have to respond to one from the bar.
8. Remember that no lie (or fib) is ever worth the potential consequences. We frequently see this in connection with tip number seven. Attorneys adhere to rule seven but then are embarrassed about not having progressed as far as they expected (here’s that shame again) and make up a little fib, telling the client that the matter is proceeding nicely. That little fib turns a low-level disciplinary offense (not returning calls) into a major one (moral turpitude). All of us have those files that never seem to get attention—the credenza queens gathering dust across the room. If you really can’t or won’t get to the file after multiple inquiries from the client, then you may need to withdraw. Anything except lie to a client.
9. Read all the disciplinary decisions on a monthly basis (whether you want to or not). Remember how for years after you passed the bar you continued to read the subsequent bar exam questions (well, at least I did) to remind yourself how glad you were that it was behind you? You should read the discipline decisions for the same reason—to remind yourself on an ongoing basis that your license is a privilege that must be carefully safeguarded. Some jurisdictions— California included—have ethics classes and client trust accounting schools at nominal cost. These, too, can be valuable resources for you. Again, keep your eyes on the prize—avoid complaints against your license to the full extent possible.
10. If you find that your “bump in the road” includes alcohol, drug, or mental health problems, get help before it affects your license. Immediately after I started working for the state bar discipline office, I discovered that a significant number of licensing matters involved attorneys who were suffering some kind of impairment. Whenever possible, I immediately referred these people to our lawyers-helping-lawyers organization, called “The Other Bar,” with great results. More recently, we’ve added to our ability to reach impaired attorneys with a full-time, professional lawyer assistance program (LAP) staffed by licensed mental health clinicians. The services of The Other Bar are always 100 percent confidential, and the services of our LAP are always 100 percent confidential unless attorneys specifically waive confidentiality to have their participation considered as a mitigating factor in their disciplinary matters. Fortunately, every state in the United States has some form of a professional LAP and/or an organization of lawyers helping lawyers (and sometimes judges). If you take away no other thought from this article, please, please, please consult one of these organizations if you find yourself in need of its services. If you’re not clear about the organization in your jurisdiction, please call the ABA toll-free number (800/238-2667), and the Commission on Lawyer Assistance Programs (CoLAP) will provide you the contact information and support that you need.
I wish you well in your practice, and I applaud your courage in working as a sole practitioner or in a small firm. I know from watching my father that this is the hardest way to practice law. My father always said that it was also the most rewarding. I hope that is true for you.
Cydney Batchelor has been a California State Bar prosecutor for the past 15 years. For the last five, her practice has been limited to cases in which attorneys with discipline complaints have drug, alcohol, or mental health problems. She can be reached at cydney.batchelor@calbar.ca.gov.