What happens when a client files a disciplinary complaint? The CLE webinar “Peeling Back the Curtain: Lawyer Disciplinary Complaints,” walks attendees through the most common complaints, the accompanying ethical rules alleged to have been violated as well as tips for avoiding complaints.
First, lawyers should know that given the number of lawyers in the United States, very few are disciplined each year, says Laura N. Gryb, a bar counsel who represents The Florida Bar in prosecuting ethical violations before the Florida Supreme Court. Speaking about the numbers in her state, she says that of the approximately 4,000 disciplinary cases that were filed, “only 300 of those actually resulted in some discipline ordered by the court.”
Julia Sheridan, bar counsel at the Board of Overseers of the Bar in Maine, agrees, and compares disciplinary complaints to a pyramid. “The complaints come in; you get to anything that really has any legs. It’s a very small percentage of the top of the pyramid” who are disciplined.
The most common disciplinary complaints filed against lawyers are for:
- Neglect
- Lack of communication
- Misrepresentation/Dishonesty
- Scope of representation
- Fee disputes/Excessive fees
The Model Rules of Professional Conduct violations leading to the most discipline are:
- 1.3: Diligence
- 1.4 Communications
- 1.5 Fees
- 1.15 Safekeeping Property
- 1.16(d) Declining or Terminating Representation
- 5.5 Unauthorized Practice of Law
- 7 series Lawyer Advertising
- 8.4 Misconduct
The top two complaints, neglect and lack of communication, often go hand in hand, says Eva J. Dossier, co-managing member of Stanley, Reuter, Ross Thornton & Alford LLC in New Orleans, which represents lawyers and law firms on matters of ethics and professional liability.
As for complaints about misrepresentation and dishonesty, Dossier says, “Here you might be surprised at how frequent this complaint is, but oftentimes when a lawyer is speaking with the client, the client may read into the lawyer’s statements a promise that perhaps a lawyer did not intend.
“Even in a relatively mundane, routine practice, there is ample room for misrepresentation or dishonesty complaints to arise,” Dossier says, and they are frequently related to trust accounts and the scope of representation.
When it comes to complaints about fee disputes or excessive fees, that is the category “that most encouragingly can lead to an amicable resolution,” she says.
“I think one of the reasons that fees end up leading to discipline is that many lawyers just assume they’re doing it correctly because they don’t have some nefarious intent,” says Dossier. “As it turns out, there is ample room for missteps.”
Dossier says the rules are quite technical. “Once you know them, it’s easy enough to stay in the lines, but many people don’t know them.”
She encourages lawyers to ask themselves, “Is this something I’ve actually confirmed? Or am I just doing it the way someone else did it without checking it out?”
The panelists had other tips for avoiding and handling complaints:
Put it in writing. After you talk to a client, send a follow-up letter to basically restate what was discussed and what the expectations are, advises Gryb.
“If things go south, you have your letters,” says Sheridan. “We get an awful lot of complaints from the party on the other side, especially in family court matters when cases are pending, because I think it’s a strategic move to try to knock out the other side’s lawyer.”
Communicate clearly and often. “Communication is so key to the lawyer-client relationship,” Sheridan says. “It’s just crucial to even the client understanding what the lawyer’s doing, what the lawyer’s thought process is.”
Don’t panic. “Respond and be honest and just tell us what happened,” Sheridan says. “I think that people get into trouble when they try to structure it right from the beginning or posture it in a certain way. It’s not a lawsuit. It’s regulatory.”
Take your time and be very, very careful. Focus on the facts, Dossier says. “Many times, people will think, ‘Oh, I can sit down and type up my response based on my recollection of what happened,’” she says. “If you get any of the facts wrong, it’s going to work against you very badly in the future.”
Prioritize your mental health. “We can’t be of use to our client or community without doing that,” says moderator Melissa M. Lessell, equity partner and member of Deutsch Kerrigan LLP’s Commercial Litigation and Professional Liability Department in New Orleans. “Please make sure you’re doing that, especially in these weird times that we live in.”
For more information about the disciplinary process, check out “Peeling Back the Curtain: Lawyer Disciplinary Complaints,” sponsored by the ABA Center for Professional Responsibility. The on-demand CLE is free to ABA members.