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To the list of things law school may not have prepared you for, dealing with an attorney grievance filed against you may well be one of them. In those heady days of law school, who really envisioned a future with brushes against ethical rules? Probably not one of us. Even as you may consider yourself wrongfully accused or possibly just a little bit justified in violating an ethical rule ever so slightly, think about the dark rainbow of punishments that could be heading your way should the matter not be dismissed: private admonition, public censure, suspension, disbarment.
A client, or even a fellow practitioner, might accuse a lawyer of all sorts of sins—commingling funds, stealing from a client, missing deadlines, not paying bar dues, making a teensy infraction involving legal advertising. “There could be any number of matters which could lead to discipline,” explains Jesse Diner, a Fort Lauderdale, Fla.-based shareholder of Buchanan Ingersoll & Rooney. “A very common and easy to remedy error is a failure to timely communicate with a client so that the client’s inquiries are not responded to or the client is not kept abreast of the status of a matter,” says Diner, a past president of the Florida Bar who also served on and chaired a grievance committee.
Where the alleged transgression does not involve a high degree of wickedness, an accused lawyer may be dismissive of the entire inquiry. The process of dealing with an attorney grievance committee may seem like a simple procedural hurdle to jump before ultimate vindication.
A lawyer may well be tempted to represent herself in the matter.
To that decision, I’d suggest this response: Are you serious? This is your career. You’ve gotten yourself into this mess on your own; do you really trust that you’ll be able to get out of it unscathed?
Of course, self-representing can, at least theoretically, save money.
If you’re tempted to deal with a grievance made against you on your own, review recent decisions in your jurisdiction, especially those concerning allegations like the ones made against you. How often did the accused win? How often did the accused win when representing himself?
Think back to your bar admission interview, when chances are you got to meet with what could only be described as a really straight-laced member of a character committee who assessed your good morals and fitness to practice law while simultaneously grilling you on why you were actually speeding when you got that ticket five years ago. In preparing for your character examination, you might even have practiced beforehand how to answer any questions on, say, recreational drug use during college. During the interview itself, you may have been tempted to sigh, Really?, while listening to a sternly worded reminder on the importance of honoring speed limits at all times. Do you really think grievance committee members are going to be let’s-push-the-envelope sorts on ethical rules?
Even so, of course, lawyers facing a grievance are tempted to represent themselves in disciplinary proceedings, at least part of the way. “Frequently they will respond to an initial request for information,” observes Craig Hudson, managing attorney of Marshall Dennehey Warner Coleman & Goggin’s Fort Lauderdale, Fla. office. “The better recourse is to consult with an attorney who can provide some perspective and assist in formulating a response,” explains Hudson, who supervises the firm’s professional liability practice group in Florida.
Remember to inform your malpractice insurer about the matter. “I strongly recommend that lawyers receiving bar inquiries immediately contact their malpractice insurer because lawyers typically have coverage for defense of bar discipline charges,” says Russell Yurk, a partner at Jennings, Haug & Cunninghamin Phoenix who served on the State Bar of Arizona’s ethics committee. “Some policies even provide this coverage without a deductible,” he continues. “Lawyers then have the option of choosing defense counsel or requesting that the insurer to retain one on their behalf. Regardless, involving discipline defense counsel quickly is important to allow time for defense counsel to investigate the charges and draft an effective response letter,” Yurk says.
Going the self-representation route is understandable, especially if the lawyer is having a bad financial year and his insurance doesn’t fully cover the costs of defending. “Many policies provide limited expense coverage for assisting with a response to a grievance notification,” Hudson says.
Ultimately, whether you retain your own lawyer or represent yourself probably depends on how serious the charges against you are. “If the initial inquiry is minor in scope and can satisfactorily be answered, many lawyers may respond themselves and their response may be sufficient for the matter to end at that point with no further inquiry or proceeding,” says Diner. “If the matter progresses to the grievance committee level or if the grievance committee finds probable cause sending the matter before a judge who sits as a designated referee, it is more likely and prudent the lawyer will retain counsel,” he notes.
Whatever you do in dealing with a grievance, don’t procrastinate. “The lawyer should respond in a timely manner. If the lawyer needs more time to respond or to gather documents for the response, the lawyer should ask for a reasonable extension, which will probably be granted,” Diner says. Now is not the time just try to wish the matter away. “Do not ignore any inquiry by the Bar,” Diner cautions. “If the matter is serious, obtain counsel who is experienced in dealing with lawyer discipline so that the lawyer can obtain proper advice and guidance in dealing with the process,” he says.
Consider, after all, how much a lawyer whose practice focuses on disciplinary actions can help you. “Many lawyers assume they can simply represent themselves in discipline actions. After all, they are lawyers,” Yurk notes. “But that is a mistake.” he continues. “Disciplinary proceedings are a unique area of the law and lawyers should retain (or at least consult with) a lawyer experienced in that area. There are unique procedural requirements, different burdens of proof, and different evidentiary standards. Experienced discipline lawyers will also usually have a good relationship and reputation with the state bar,” Yurk notes.
By Lori Tripoli
