Kevin Tynan, of Richardson & Tynan, PLC, out of Tamarac, Florida, currently represents lawyers with disciplinary issues and applicants before the Florida Board of Bar Examiners. Prior to that, he worked as a prosecutor for the Florida Bar for more than 13 years, including a time as the manager of The Florida Bar’s Fort Lauderdale office. Mr. Tynan presents a unique perspective as he has worked on both sides of this issue and was happy to share his wealth of knowledge on the topic.
The Basics of the Disciplinary Board
As in most states, Florida has multiple branch offices of The Florida Bar throughout the state, and its main office is in Tallahassee. Bar counsel attorneys are primarily in charge of screening and reviewing new grievances that come in, all the way through their ultimate resolution, be it dismissal or a trial.
Grievances are initially filed at the Tallahassee Office of The Florida Bar through the Attorney Consumer Assistance Program (ACAP). Once a grievance is filed, Bar counsel determine whether there’s any merit to the complaint. If they think there’s potentially an issue, they send it off to one of the five branch offices throughout the state of Florida. If the local Bar counsel feels there’s something worth further investigation, the complaint proceeds to the grievance committee.
The grievance committee is the Bar’s grand jury. It investigates; however, the most it can do is render a finding of probable cause, like an indictment. These cases then go out for litigation in front of a judge, which could be at the county or circuit level or even before a retired judge. They are handled off the regular docket and can be tried or settled. An appeal of this decision goes straight to the state’s Supreme Court.
Luckily for most lawyers, the vast majority of grievances are dismissed without being investigated further. This can be for various reasons; however, the most common one that Mr. Tynan came across was dismissal due to factual inaccuracies or a lack of investigative jurisdiction. According to the lawyer discipline statistics published by The Florida Bar each year, for 2021–2022, there were 3,380 files opened. Of these, 388 rose to the level of actual cases. Of those cases, only 236 attorneys were disciplined in some way. The most common disciplinary action that lawyers immediately think of would probably be disbarment; however, the Bar can take plenty of other actions. These include suspensions, public reprimands, disciplinary revocations, admonishments, probations, and even injunctions. Interestingly, the statistics stay roughly the same each year regarding files opened and attorneys disciplined.
The Most Common Offenders
In Mr. Tynan’s experience, the most common cases that he sees arise, both as a prosecutor and now as a defense attorney, are those of trust account violations. One of the most frustrating things he finds is that sometimes these violations often are not committed by the attorney but rather by one of their employees, such as a paralegal or secretary. Unfortunately, the attorney is still on the hook for these violations, and the attorney is ultimately the one who will pay the price in front of the disciplinary board. Moral of the story: pay attention to who you hire and what they’re doing!
Other consistent violations include criminal acts. Obviously, committing a crime is frowned upon by the Bar, but if the crime the attorney commits rises to the level of a felony, there’s a strong presumption of disbarment. Excessive fee cases, conflict cases, and neglect cases are also regular offenders.
One particular offense that’s easy to avoid is communication issues with clients. These usually present as neglect cases, but attorneys can often smooth these over if they just talk to their clients: simply respond to that email or call. Communication is key. Don’t ignore those clients . . . no matter how annoying you may find them! Disgruntled clients who feel ignored are often prone to file grievances with the Bar, claiming their attorney has neglected or abandoned them and their case.
When asked whether new or more experienced lawyers make the most mistakes, Mr. Tynan stated that while he does see inexperienced lawyers in hot water for rookie mistakes, the primary wrongdoers are seasoned solo practitioners. He feels that’s due to the lack of a support system often found in larger firms, be it having senior attorneys to discuss things with or just the number of paralegals and support staff available for research and other casework. Also, higher-risk areas of law tend to have more issues: matrimonial and criminal defense lawyers, for example.
It’s Not Just Clients Who Can Complain
According to Mr. Tynan, most grievance complaints are filed by disgruntled clients; however, complaints can have a few other sources that should be considered. Your fellow attorneys can file a complaint against you with your state bar. These complaints are not run-of-the-mill types of complaints. Although you may be incredibly annoyed with opposing counsel’s refusal to comply with discovery on time, those issues are best dealt with via court motions.
Complaints against opposing counsel that rise to the level of a bar complaint are typically more egregious. These can include insulting or rude behavior toward opposing counsel and their clients or perhaps violations of court orders, to name a few. However, something opposing counsel cannot do is call you, threatening a bar complaint unless you comply with their demands! That is not allowed and may justify a complaint against the threatening attorney.
A recent trend that Mr. Tynan has observed is judges filing bar complaints against attorneys they encounter in their courtrooms. This unfortunate trend can be quite problematic for the accused attorney for various reasons. With a judicially filed bar complaint, the judge is given a very high level of deference and presumed correct, just as they are in their courtroom. If a judge files a complaint against an attorney, these complaints can’t just be dismissed at the intake level. They automatically move forward to a grievance committee. Judges can file complaints against attorneys for a myriad of reasons; some examples include rude comments made in the courtroom by the accused attorney, conflict issues, contempt of court matters, or other varying forms of misconduct.
How to Avoid the Disciplinary Board
Beyond the trite advice of knowing your state’s rules regarding ethics, talking to your fellow attorneys is one of the best sources for both advice and general information. If you’re in a large firm, this is easy: you have scores of other attorneys at your fingertips. For solo attorneys, Mr. Tynan’s advice is simple: get a mentor—someone you trust and can use as a sounding board. Whether this person is an attorney specializing in ethics or just a more experienced practitioner, double-checking that you’re handling a matter correctly is crucial. While there’s self-help available with a state’s ethics department and hotlines, they often don’t give the clear-cut answers that most young lawyers need.
Serving on a grievance committee is a great way to learn more about the whole process. You’ll gain firsthand experience from a different point of view. This can go a long way in teaching you what not to do and the mistakes that can be avoided. However, a caveat to this suggestion is that you can’t serve on a grievance committee, at least in Florida, until you’ve been a practicing lawyer for five years. Nevertheless, Mr. Tynan feels it’s an excellent endeavor, especially for those interested in the proceedings of this area of law.
Serving on a Grievance Committee
For those who choose to get involved with a grievance committee, it’s important to understand what that role entails and how it fits in the grand scheme of the disciplinary board process. At their core, these are volunteer committees that operate, at least in Florida, under The Florida Bar’s Board of Governors. The number of attorneys serving on these committees varies across the state, depending on the county or region they serve. In some counties, there are nine members to a grievance committee; in others, Mr. Tynan has seen as many as fifteen. There are some benefits to a larger grievance committee, one being that if some members can’t attend, plenty of members will still be present. However, a quorum must always be reached for a decision at the grievance committee level. You always want to ensure you have enough members to hear your side of things.
Volunteering to serve on such a committee can be a valuable and rewarding experience, but one must enter understanding the importance of the work that’s being done: holding a fellow attorney’s career in your hands. Complaints must be fairly assessed so that the grievance committee examines both the complainant and the accused attorney’s versions of events preceding the complaint.
Grievance committees receive complaints after they’ve initially been filed with the main Bar office. Per Mr. Tynan, much credence is given to whatever decision the grievance committee makes. These are intended to be a jury of your peers and fellow attorneys, and the hope is that they, better than any layperson, can understand the issues presented. If the grievance committee closes the case after reviewing it, that’s it. The case is dismissed, and nothing more happens. However, if the grievance committee finds probable cause for the complaint filed, it proceeds to litigation. When Mr. Tynan served as a Bar staff attorney, he said the grievance committees were considered to be a “referee level.” Their decision stands, but ultimately, they determine the next stage of the complaint, be it dismissal or litigation.
Should litigation result from the grievance committee’s decision, the local Bar counsel gets involved to represent The Florida Bar. The accused attorney then, at this point, should have retained their own counsel; however, many do so as soon as they receive notice that a complaint was filed against them. Mr. Tynan further explained that most litigation involving Bar complaints happens outside of the county in which the accused attorney practices; this is often the case to avoid recusal issues of judges who may personally know the accused attorney. However, this is less of an issue in larger counties with an abundance of judges, and these may be litigated in the accused attorney’s home county.
What to Do If It Happens to You
If you do find yourself on the receiving end of a complaint, don’t respond right away. Mr. Tynan says one of the worst mistakes he sees young lawyers make is shooting from the hip without thinking things through. Keep your cool! While you are required to respond, it’s important always to stay professional and have someone else review your response before ultimately sending it off.
Answer only the question presented, and don’t create more problems by providing more information than is necessary. For example, if a client is complaining about excessive fees, provide your documentation, but ensure you’re not giving other documents that could be reviewed and found to be problematic. For example, Mr. Tynan has seen this happen with retainer agreements: a retainer agreement is sent in as documentation that a client agreed to the attorney’s fees. However, there was a provision in the retainer agreement itself that was, in fact, another disciplinable offense. Don’t add fuel to the fire!
Something also to consider is the fact that complaints can be filed under the guise of originating from a disgruntled ex-client but are clearly drafted by their new attorneys. These complaints can serve several different purposes; however, the one to be most concerned with is that filing bar complaints can sometimes be utilized as a free discovery tool. When a complaint is filed against an attorney, that attorney must respond: it’s required. Mr. Tynan outlined several instances when a bar complaint was filed just a little too timely in conjunction with pending litigation.
Imagine the scenario where a disgruntled ex-client is alleging legal malpractice or is involved in a fee dispute with their prior attorney. Upon retaining new counsel, their new counsel drafts and files a bar complaint against the prior attorney, albeit on the ex-client’s behalf, using the ex-client’s name. Depending upon the response drafted by the accused attorney, that accused attorney may be forced, or coerced, into producing some of their own litigation strategy within the response that is relevant to the pending litigation. Just like that, opposing counsel has gotten a sneak peek at what the arguments presented at trial may look like. Yet another reason Mr. Tynan stresses the importance of only providing the information that is absolutely necessary in a response letter . . . as well as having someone else review it for you.
Switching Sides
While Mr. Tynan jokes about his career flip from prosecutor to defender as going to the dark side, he still feels that the system ultimately works and believes in the legal profession policing its own. He also thinks that the two purposes of the disciplinary board, protecting the public from bad lawyers and protecting the lawyers from bad clients, are at the heart of most conflicts. However, they sometimes get a bit muddled together and aren’t always given equal weight.
Despite the years he spent prosecuting for The Florida Bar, Mr. Tynan doesn’t think he could ever return to that side of the law. The prosecution and defense sides of legal ethics matters are vastly different, just as prosecution and defense in criminal law are two sides of the same coin. Ultimately, he’s happier defending the lawyers.
Mistakes Happen
The disciplinary board is something that most lawyers hope to avoid throughout their careers, for good reason, and the vast majority of attorneys will do so. However, just in case you’re one of the unfortunate few, it’s important to remember that just because a grievance is filed doesn’t always mean it’s the end of the world. Most complaints and grievances that are filed are ultimately dismissed. Mistakes happen, but rest assured that ethics counsel, like Mr. Tynan, are in every jurisdiction in every state and are primed and ready to defend their fellow attorneys, should you ever need it.
