GPSOLO October/November 2010
IN THE SOLUTION
Dealing with an Ethics Complaint
By Donald R. Lundberg
The lawyer discipline system casts a wide net—intentionally so. If the system discouraged grievances, meritorious ones would as likely be discouraged as frivolous ones. Public protection suffers when valid complaints never make their way to bar counsel’s office. (In this article, I will call the lawyer discipline prosecutor and associated lawyers “bar counsel”; I will call an initial complaint from a third party to bar counsel a “grievance.”)
Let’s look at some numbers from the 2008 ABA Survey on Lawyer Discipline Systems: An active lawyer had 8.4 chances in 100 of having a grievance filed against him or her. There were better than 50–50 odds that the grievance was dismissed on its face, and better than 50–50 odds that an opened grievance was dismissed after preliminary investigation. Only 5,048 lawyers were formally charged with misconduct in 2008 after a finding of probable cause. That’s a miniscule third of a percent of all practicing lawyers. Around one-half of a percent of grievances led to a formal charge of misconduct. In other words, a lot falls by the wayside on the way to formal discipline. Is that a reason to relax? Not really. Try arguing to bar counsel that, statistically, it’s not your turn yet.
This is an article about dealing with grievances, not about preventing them. There is a lot of good stuff out there about avoiding grievances. Read it. If you disregard that sage advice, I’ll guarantee there will be more than one grievance in your future. If you are cavalier about your ethical duties, I can’t be of much help to you. But even conscientious lawyers open their mail to discover that someone has filed a grievance against them. What to do?
For starters, you can hope that it is a notice of facial dismissal. Your heart stops beating, you open the envelope, read its contents, breath a sigh of relief, and life goes on pretty much as before, right? Not so fast. Use it as a learning opportunity. What could you have done to have avoided the grievance in the first place? Maybe nothing—fair enough. But maybe it could have been prevented. How much better to have never been grieved than to have had a grievance dismissed?
But this time, you draw the short straw. The grievance is going to be investigated. You will be asked to respond in writing. Correct that—more than likely it will be called a “demand.” And that’s an important word, because even if you committed no other misconduct, failing to cooperate can itself be a violation of ABA Model Rule of Professional Conduct 8.1(b). Plus, other bad things can happen. In my state of Indiana and in many others, your law license can be suspended until you decide to cooperate. It’s human nature to want to avoid unpleasantness. Even so, deal with it. Don’t put it off. It doesn’t get better with time.
If you have to respond, here are ten helpful tips:
- Take it seriously. Don’t be flip or cavalier. Carve out plenty of time to fully attend to the matter and not feel rushed. You must approach it as one of your highest priorities.
- Get current. Read over your jurisdiction’s rules of professional conduct. Study the procedural rules. Bar counsel I know will not intentionally lay procedural traps, but they aren’t your babysitters. Ask bar counsel for procedural guidance if you need it, but don’t waste their time posing questions that are clearly answered by the rules.
- Use proper form. Know the expectations for form of response. Is there a file or case number that should be referenced? Is there an accepted form of caption? Does it need to be signed under penalty of perjury? Whether it does or not is immaterial—you still have a duty to be complete and truthful. Proofread thoroughly. Sloppy work for yourself signifies sloppy work for clients. A response submitted through counsel may only need to be signed by your lawyer. Consider co-signing it. Demonstrate that you personally stand by it. Avoid submitting lengthy responses by fax. They are hard to read. If you are sending a hard copy, avoid wasting trees by faxing it, too.
- Be on time. Know your due date. Calendar it. Be early for a change. Learn your bar counsel’s views on and procedures for obtaining extensions of time. Don’t ask for an extension of time unless you need it—get the misery over with. Make any extension request in writing and solicit a written response. Do not assume an extension will be granted, so make your request well before the deadline and state the reasons why you need additional time. In my experience, requests for short extensions of time are readily granted upon a credible statement of good cause. Requests for longer or additional extensions require a stronger showing, supported by detailed reasons and supporting documentation. Deliver your response by a method that provides proof of delivery.
- Be complete. Summary denials, as if you were answering a civil complaint, are not helpful to bar counsel. The grievant has had the opportunity to tell a story. Now it’s time to tell yours. Many grievants are uneducated, unsophisticated, or inarticulate. It is concededly difficult to respond to such a grievance, but be generous in your reading of it—bar counsel will. Avoid being dismissive simply because it is not elegantly stated. If you are still in the dark about some aspect of the grievance, ask bar counsel for guidance. Remember, the focus of a preliminary investigation is primarily on facts. You are not foreclosed from addressing the legal merits of a grievance, but you should not do so at the expense of the facts. Client confidentiality is not a bar to allowing you to defend yourself (ABA Model Rule of Professional Conduct 1.6(b)(5)). If the grievant is not a client or former client, work with bar counsel to prevent necessary disclosures of confidential client information from falling into the wrong hands.
- Verify the facts. Never trust your memory on factual matters. Thoroughly refamiliarize yourself with your file. Do not commit yourself to facts that you are not certain are true. Making a false statement in a response is an invitation to worse trouble. If your factual assertions are qualified in any way, say so.
- Document your response. Support your response with appropriate documentation, especially as to factual matters that are highly material or in dispute. If you don’t have direct knowledge of important facts, supply sworn statements from third parties to bolster those facts or direct bar counsel to other individuals who possess direct knowledge. If access to important records is outside your control, bar counsel might have the authority to subpoena them. Solicit bar counsel’s assistance to obtain those records.
- Moderate your tone. Personal attacks or emotional diatribes are not helpful. It is largely immaterial to bar counsel that your client is a bad person. Even bad guys are entitled to ethical, legal representation. Where there are differing versions of material facts, highlight factors that might reflect favorably on your credibility or adversely on the credibility of your accuser without resorting to name calling or gratuitous revelations of immaterial, but embarrassing, client confidences.
- Consider legal representation. Consult with an objective legal advisor, especially one who knows the lawyer discipline system well. Now is the time to think of yourself as a client, not a lawyer. Should every responding lawyer hire counsel? Certainly not. But if you don’t hire counsel, it should be because you have consciously decided against it. If the matter goes beyond preliminary investigation, revisit the decision to hire counsel. The stakes are getting higher. The fact that a lawyer is represented is welcomed by bar counsel and is never taken as a sign of culpability. Even if you don’t formally hire counsel, you are well advised to have another trusted lawyer review your response before submitting it.
- Cooperate fully. Invite further inquiry from bar counsel and offer to make additional materials available to assist with the investigation. Bar counsel view the investigation as a process directed at finding out what really happened. Convey a tone of shared commitment to that project.