April 06, 2021 LAW PRACTICE MANAGEMENT

DIY Disciplinary Defense

Lucian T. Pera

It’s a terrible feeling. You find in your morning mail a letter from your state’s lawyer disciplinary agency. More than a little nervous, you open it to find that someone has filed a bar complaint saying you engaged in misconduct. What to do?

First steps. You will be amazed to learn that, every year, in pretty much every jurisdiction, a few lawyers are disciplined for not responding to bar complaints. Engage fully with the complaint. Lawyer disciplinary investigations are governed by procedural rules and customs unique to each jurisdiction. Understand what is expected of you, how the process works, and the extent of confidentiality of the process.

Start by reading the complaint. Often, it will say clearly what you are accused of doing wrong, with legal citations and affidavits. But that’s not always true. Some are virtually incoherent. Still, read it. Try acting like a lawyer. Are the facts stated in the complaint true? Are the assertions about what the law and the ethics rules require correct? Did you violate any ethics rules? If not, did you behave poorly? Even if you didn’t, is it possible that the disciplinary counsel or fact finders might think so?

Time for help. Here’s the moment where, if you have not yet done so, you need to seriously consider hiring experienced disciplinary defense counsel. Consider hiring a lawyer who does this work regularly for clients. One good source: the membership roster of the Association of Professional Responsibility Lawyers, with members in almost every state who do this work for a living.

You can certainly represent yourself, but beware: The case reports are littered with the battered licenses of self-represented lawyers.

Consider hiring expert counsel if the complaint alleges serious misconduct; if you need an objective evaluation of the complaint or the facts; if you need an evaluation by someone experienced with the disciplinary process; or if you need to say things or take positions that are more effectively made by someone other than you as the accused lawyer.

If any of these are true, don’t try this at home. Bear in mind, of course, that there may well be “minor” disciplinary complaints for which self-representation might be entirely prudent.

Remember, too, that a paid lawyer can add value in different ways. He or she could review and comment on your draft response to the complaint that you might then submit over your own signature. He or she could write a response you could sign and submit over your own signature. Or he or she could “appear” for you by submitting a written response over his or her signature as your counsel.

Fully investigate. By this point you have probably found and reviewed the client file, but think afresh about the allegations and whether there is further investigation to be done. Do you need to pull old e-mails, phone logs, or time sheets? Are there documents or information outside your client file, or outside your office, that you need to find and review? Should you talk with witnesses or obtain their statements?

Consider a report to your carrier. Some bar complaints are obvious indications that a malpractice claim is coming; if so, seriously evaluate whether you need to report it to your carrier. And your carrier may well recommend (and pay for) a lawyer to help.

Just as importantly, even if that’s not the case, investigate the availability of insurance coverage under your malpractice policy to pay for disciplinary defense. Many policies have coverage for disciplinary defense, maybe as much as $50,000; other policies do not, or may have limitations on this coverage. The availability of coverage may change your evaluation of whether to hire defense counsel.

Consider the fallout. Think now about whether the filing of the complaint itself, or any adverse finding, might have downstream effects. Complaints can directly (or even immediately) affect the underlying cause of the complaint, whether a malpractice claim or a fee dispute. Further, disciplinary sanctions, or even the pendency of a complaint, can affect the status of your license in other jurisdictions, applications for admission or pro hac vice admission in other jurisdictions, or specialization certifications.

Some problems that lead to bar complaints—such as fee disputes or malpractice claims—can be fixed, or at least mitigated, sometimes by settling the underlying dispute. Can you do anything to make the complainant happy enough—or not unhappy enough—to withdraw the complaint?

Time to respond. In responding, there are many factors to consider in addition to clearly laying out the facts and the law. If you need more time to respond, ask for it, and be sure you ask for enough time.

Tell the truth. Treat your response just like an affidavit—if you lie or make any misrepresentations, they may well be added as charges to any disciplinary complaint against you. And consider the extreme rhetorical importance of candor. The mantra of Lanny Davis (former Clinton advisor and Michael Cohen’s lawyer) might serve well: Tell it early, tell it all, tell it yourself.

Tone is everything. Whether you respond on your own or through counsel, find the right attitude or posture. Which of these works best?

  • I did nothing wrong.
  • I am a hero, not a criminal.
  • The complaint is untrue and bogus.
  • I made a mistake, and I acknowledge responsibility for it.
  • I made a mistake, but it was a small, excusable one.

Consider whether you are permitted to disclose client confidential information. Generally, you are, under most states’ versions of ABA Model Rule of Professional Conduct 1.6(b)(5), but do so with care and thought. Consider whether you need to protect confidential information against a complainant who is not your client—one who is, for example, a party adverse to your client.

And do not assume that disciplinary counsel know the law, especially in specialized practice areas. Explain arcane points of divorce law, or bankruptcy, or local rules, or the way a particular kind of real estate transaction works and why. Consider treating disciplinary counsel like a well-informed layperson as to your specialized practice area.

Be patient. In many jurisdictions the process takes a long time to resolve, and it always feels longer to the respondent than anyone else, even when a complaint is dismissed. When you have a special need for prompt resolution—such as a pending bar application in another jurisdictionthink about talking with disciplinary counsel; sometimes they are in a position to assist.

In some jurisdictions local custom allows a respondent to informally call disciplinary counsel and sound them out about their concerns, whether to help identify and respond to their concerns about the complaint or to negotiate a sanction. Handled with care and judgment, discussions like this can be invaluable.

Respond promptly and fully to any further requests. In some jurisdictions there will be further opportunities or requirements that you respond, whether to further submissions by the complainant or to questions from disciplinary counsel. Of course, treat these with respect and respond promptly and fully.

And, above all, remember: Don’t panic.

ABA LAW PRACTICE DIVISION

This article is an abridged and edited version of one that originally appeared on page 16 of Law Practice, September/October 2019 (45:5).

For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

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By Lucian T. Pera

Lucian T. Pera is a partner in the Memphis, Tennessee, office of Adams and Reese LLP.