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October 17, 2019 Feature

Dealing with an Ethics Complaint

Notify your insurer and prepare for a possible lawsuit.

Michael Downey

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“I received an ethics complaint,” Paradox said. “It was filed by a client. What should I do?”

“Well, often the first thing to do is notify your legal malpractice insurer.” Seeing Paradox’s surprise, Ethox continued, “There are two main reasons to do this. First, many insurers pay legal fees and expenses incurred in dealing with ethics complaints.”

“Really?” Paradox wondered.

“Yes,” Ethox answered. “Some insurers provide first dollar coverage, helping the lawyer respond to the initial complaint. Other insurers pay only if a formal charge is filed. Others do not pay at all, but it is worth a try.

“Second, lawyers generally need to provide notice to their insurer of any claims or potential claims. Ethics complaints often precede lawsuits. You don’t want to fail to provide timely notice, because that may waive insurance coverage. Also, you will probably need to report the ethics complaint when trying to renew your insurance—so better to report the complaint early.”

“OK, so I should notify my insurer,” Paradox summarized. “What next?”

“Then you hire or ask another lawyer to help prepare the response,” Ethox said. “Your insurer may recommend counsel. Or you can pick the lawyer. Either way, you should hire someone who can help prepare a good, thorough response—unless there may be criminal charges.”

“Criminal charges!” That surprised Paradox.

“Yes,” continued Ethox. “Sometimes alleged misconduct may result in criminal charges. For example, if the lawyer has stolen client funds, this would violate ABA Model Rule 1.15—and it could result in criminal charges.

“When this happens, normally the lawyer needs to focus on dealing with the criminal charges, not the ethics complaint,” Ethox said. “The tactics are usually very different. Often a criminal defendant should not cooperate. A criminal defendant can plead the Fifth, invoking the privilege against self-incrimination. And criminal charges must be proved beyond a reasonable doubt.

“In a discipline case,” Ethox paused, “a lawyer who doesn’t cooperate may violate Rule 8.1(a). Also, a lawyer’s invocation of the right against self-incrimination may be admitted as evidence against the lawyer.

“I often tell lawyers the hierarchy is life, liberty, then license. Stay alive, stay out of jail . . . and then worry about your law license.”

“There is no risk of a criminal charge here,” Paradox said, “so what is the third step?”

“Prepare a written response,” Ethox responded with a smile.

“What does that involve?” Paradox asked.

“Gather and review whatever you can—including the file, the pleadings, and the court docket—and write a thorough document setting out your position on what occurred,” Ethox said. “Often it is good to introduce your background and law practice, then provide a narrative of what occurred in the matter, followed by sections that address specific legal issues, if necessary.”

“Can I get more time to respond?” Paradox asked.

“Usually,” Ethox responded. “Most discipline counsel will allow a brief extension, as long there are no special circumstances requiring an immediate response.”

“And then?” Paradox asked.

“Be patient,” Ethox advised. “It may take months or longer for a complaint to be resolved. The goal is to get the investigation closed.

“You also should not ignore the client, if the representation is ongoing.”

“The filing of a complaint doesn’t end the representation?” Paradox asked.

“No,” Ethox answered. “You may be able to withdraw under Rule 1.16(b), or the complaint may create a conflict that forces you to withdraw. Otherwise, you may continue on the case—but need to provide competent, diligent representation and continue communicating with your client.”

“Doesn’t Rule 4.2 prevent me from communicating with the client?” Paradox asked.

“No, because disciplinary counsel does not represent the complainant,” Ethox answered. Looking at Paradox’s expression, he added, “And I would be honored to help you write your response.”

Michael Downey

The author is a legal ethics lawyer and founder of Downey Law Group LLC.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).