Responding to an Ethics Complaint: A How-To Guide
Every year, ethics boards receive thousands of complaints. The California State Bar alone received over 16,000 ethics complaints in 2011, a number that represents about 7% of California’s active lawyers. At some point in your legal career, one of those complaints could be against you.
Here’s how to handle an ethics complaint, if you wind up the subject of one.
What you should not do
If a complaint is filed against you, there are several tempting but totally unhelpful responses to avoid.
Do absolutely nothing and hope it will go away
You will no doubt think the complaint is bogus. You will likely believe that the complaining witness has no case against you, and you expect the prosecutor to see that too. You think that, if you do nothing, the complaint will vanish and your life will go on as usual. So you bury it, possibly unopened, in a pile of junk mail and hope it will go away. Or maybe you just put it on your to-do list and never get around to it. Either way, the result will be the same.
Much as you would like for an ethics complaint to vanish, that is not going to happen. You may bury it on your desk, but the prosecutor’s investigator will not bury it on hers. She reports to her superiors on her cases, and yours will not be forgotten.
Instead, the investigator will look at the complaint, the documents the complaining witness provided, and any other documents she can obtain. She may subpoena your trust account records, pull court filings, interview witnesses, and build a case against you, all while the prosecution’s notice lies buried in your paper pile.
When the prosecuting attorney gets your file on his desk in just a few short months, he will see you have done nothing to cooperate in the investigation. Since you have an obligation to cooperate in ethical investigations, he will add an additional charge against you for failure to cooperate. Since this charge is independent of the original complaint brought against you, you can be prosecuted for failing to cooperate even if you win on the underlying ethics complaint.
Shoot from the hip and respond angrily and defensively
You read the complaint and get very upset. Obviously, your former client has completely misunderstood the legal representation and the relationship between you. He also lied about what you did. You sit down and bang out an angry response in which you not only defend yourself but also denigrate your former client as a ne’er do well who never appreciated how hard you worked for him and whose own conduct is to blame for the poor results achieved in his matter. You send it off without bothering to re-read it or to get someone else to look it over.
When the prosecution adds this letter to its arsenal, your angry response will be seen for exactly what it is: an emotional and defensive tirade. It will be treated accordingly.
Dump your file on the investigator and hope it overwhelms her
Notices from the prosecutor’s investigator typically include a request for “all correspondence” between you and your former client, and “notes, memoranda and/or other documents” pertaining to the case. Basically, your entire client file could be considered responsive.
So, you copy it all (in its current, possibly disorganized state) and send it off with no page numbers, no index, no useful guide to the confusion. You envision the investigator receiving this full banker’s box (or two or three) and either (a) being completely overwhelmed to the point of closing your file, or (b) becoming convinced that since you produced such a volume of paper, you must have performed competently.
Of course, neither of those reactions is at all likely. Prosecutors do not close files simply because they do not want to wade through the paper. The investigator will be irritated by your response, and that could impact the inquiry unfavorably, but she is not going to close your file. It is her job to go through your response in detail, and that is what she will do. Moreover, the person to whom you send those boxes has no authority to close the inquiry. She investigates; she does not rule.
As to paper equaling competency, we all know that just is not true.
Plus, in your haste to copy and send, you may not have taken attorney-client privilege into account, and you may have now just committed another violation and proven that you are not competent.
So if you shouldn’t bury the complaint hoping it will vanish, relegate it to the bottom of your to do list, fire off an angry and defensive response, or send the investigator your entire file, what exactly should you do?
What you should do
Consider whether you want to hire counsel
You may want to handle your ethics complaint yourself, but is a good idea to have someone do it for you. Consider your resources, including the time it will take you and the money it will cost you to hire someone to do it for you, and think about whether having representation is right for you.
You have several options when it comes to hiring counsel for an ethics complaint. You can hire an ethics defense lawyer to do all of the work necessary to present your defense, or you can hire a dedicated defense lawyer on a limited-scope basis. A limited scope attorney will assist you to the extent you request, while you take a very active role in your own defense. You can draft your own responses for your lawyer to review, or you can work in tandem with the attorney to craft your defense.
You can also hire a lawyer who does not specialize in ethics defense to work on your case. This is not the best option for reasons that should be obvious, though it is sometimes the choice of attorneys who do not have the financial means to hire dedicated ethics defense counsel and have a friend or colleague willing to take on the matter pro bono.
Deal with the emotional fallout
Absent dead nerves and a heart of steel, reading the letter informing you of an ethics complaint will make you defensive beyond belief, angry to the core, and probably unable to concentrate or sleep. You must address the emotional aspects of the complaint head-on. Distance yourself emotionally, accept that it is happening to you, meditate or do yoga or practice deep breathing — whatever it is you need to do to make yourself right with it. You have just been put in the shoes of every client who has ever been sued, and it is your turn to take the same advice you usually give to your clients.
Read the complaint letter in its entirety
If a client was sued and sent you the complaint, the first thing you would do is read it, probably several times. Doing this with an ethics complaint where you are the target can hurt, and it will make you angry, but you have to know what you’re dealing with. Plus, the letter’s contents may actually surprise you. The list of gripes you heard from your client may not be the same things you see in the ethics complaint.
If you have malpractice insurance, notify your carrier
Perhaps you already did this if you could see that the complaining witness was heading toward a complaint or malpractice suit. If not, do it now. Read your policy, too, as some carriers have specific coverage for ethics complaints which can make the decision to hire counsel a simple one.
Read the rules
Get familiar with the process. In some states, the discipline process is handled by a specialized court. In others, it is handled by the state courts. Find out how it is done in your state, and get the rules (most are online). Yes, it is litigation, but it is a special world unto its own. Do not assume that the rules you know from traditional litigation will be the same.
Plan your response
You have a deadline, so start from there and work backwards. If you can get extra time, get it. Consider whether you are hiring counsel or not, and factor in extra time for your portion of the work (either drafting your response in its entirety or assisting your lawyer in doing so). The emotional punch will almost certainly increase the time you need to complete your part of the work. True, you might be able to draft a solid answer to a complaint for a client in a single block of hours, but you will definitely not be able to work on your own response that way.
Draft your response or meet with your attorney to draft it
You know what a good brief looks like. Make your response to the complaint letter look like a good brief — detailed, well-written, and complete. The prosecutor’s investigation letter may not cite rules that they allege you violated, but your response should cite rules with which you know you complied. You can probably see from reading the letter what types of charges they are contemplating. For example, you may see phrases like “failure to act competently,” “failure to maintain communication with your client,” “failure to act in a timely manner.” Cite your state’s rules and explain how you fulfilled your obligations. If you have affirmative defenses, e.g., you withdrew from representation by following proper procedures, explain what you did and how you complied with the rules. Make your response as complete as possible so that the prosecutor has to do no further research to find in your favor.
(No, the prosecutor is not likely to stop researching and investigating, but give them enough information so that when they do dig in, all they find are the same authorities you’ve already cited, and they come to the same conclusions you’ve stated.)
Accept that this may go on for months, and you cannot allow it to take over your life
You must still continue to meet your obligations to your other clients and to live your daily life. Consider it an unwelcome lesson in being a litigation party. It will make you relate better to your clients.
Consider the effects on your overall practice
There are many questions to ask yourself about the impact of the complaint on your existing practice. Are the potential charges of a type you will need to disclose to your current clients? Will you need to stop taking on new clients? Can you effectively serve your clients while this complaint is pending?
It may be too early to tell, since the prosecutor has not presented draft charges at this point, but keep the future in mind. If charges are filed, they will become public at some point. They may even be linked to your online profile at the state bar’s website. If the charges say you failed to return phone calls, that is one thing, but if they say you stole money from your client, you need to consider the ramifications. Plan now for the eventuality. If you are in a partnership, talk to your partners about taking over your cases if it becomes necessary. If you are solo, reach out to friends in the same practice area who might be able to step in should they be needed. Our tendency is to keep everyone from knowing about an ethics complaint, but the fact is that you must plan. Do not compound your troubles by prejudicing additional clients with your handling of the case.
If you might have to refund fees, plan now
Set money aside to pay them, no matter how you assess the merits of the complaint. If nothing else, setting aside the money to pay back disputed fees puts you in a better position at the time of settlement talks. If it turns out you don’t have to refund fees, you can celebrate with the funds.
Honestly assess your practice
Consider whether the same type of complaint might be on the horizon with any other clients, and address them now. Put any potentially-disgruntled clients at the top of your list and tend to them. Put systems in place to correct any shortcomings in your office — make sure phone calls get returned, bills get out on time, deadlines are met, and sources of irritation for clients and opposing counsel are eliminated. I will address more ways to prevent ethics complaint in another post.
As with all litigation, there are no guarantees in the disciplinary process. However, a well-planned response has a much better chance of being successful than no response, or an ill-advised one. Be careful and thoughtful, and take steps to ensure that this is your only ethics complaint.
(image: Exhausted, stressed businesswoman in her office from Shutterstock)