It is always a bit disconcerting (as an understatement) when a client files a disciplinary complaint against you. This is especially so when you believe you did a good job for the client. Usually, you have some idea that an inquiry is in the offing. And, let’s face it. We have all taken on that one client even though every bone in our body tells us that it is a bad idea. So, now there is an inquiry from your licensing authority. What do you do?
First, realize you are not alone. Clients files grievances against their attorneys every day. If one practices long enough, chances are this situation will arise at least once. Calm down and do not panic. On the contrary, taking the position that the matter is frivolous and unworthy of time and resources is also a mistake. You must respond to the inquiry. Normally there is a response due date. Make sure you log that date into your calendar or case management system. Under most state’s procedures, the response timeline can be extended with the investigating authority’s permission. So, keep in contact with the investigator and, by all means, stay on good terms with him or her. Understand that the disciplinary authority acts very much like a prosecutor. Thus, whether to prosecute or not is within his or her sound discretion.
Not surprisingly, you will be highly motivated to get the grievance dismissed as soon as possible. So how does one accomplish that? Begin by reading the grievance thoroughly. You will likely have to read it more than once. If you can, try to step into your client’s shoes to see what it is that the client thinks you have done wrong. Review the file and see if there is any merit to the client’s complaint. Just because there may be some merit to some of the client’s criticisms does not mean a violation of the ethics rules has occurred. In this regard, it may be wise to enlist the help of a fellow attorney. Understand that, as the defendant, your view of the situation is not unbiased. The objective opinion of another individual can add immeasurably to the quality of your response.
Prepare a response. This will likely take several drafts. If the response refers to a document, include it as an exhibit. The response should directly address the conduct that the client believes was wrongful. In so doing, consider the sage advice of Detective Joe Friday in Dragnet, “Just the facts, ma’am.” Your opinion matters little. Diatribes, cocky remarks, defensiveness and dismissiveness will garner no points with the investigator. A reasoned, objective, response, however, will. The idea is to make the investigation as easy for the investigator to complete as possible. This approach is similar to the one litigation attorneys take when writing Memoranda and Briefs to the court. If there is a document that helps, even if it is already in the file, attach it. That way, the investigator need not search for it. In the end, ask for dismissal of the grievance.
It is always best to prepare the response several days prior to the response deadline date. A good approach is to put the response aside for a day or so. Then, prior to sending, review the response again. Often, one is surprised by the tone the writing may convey, even though not evident in the first preparation of the response. If you have ever had a person in authority say to you: “Do not take that tone with me,” you will quickly understand that tone is important. Unfortunately, one of the great disadvantages to the written word is that tone may be misinterpreted. A second reading of the response after putting the matter aside for a day or so is the best way to diminish the possibility of an unintended tone.
Importantly, your best opportunity to get the grievance dismissed is at this very first response stage. Accordingly, consider retaining disciplinary defense counsel. Many attorneys balk at the idea of expending resources to hire someone to do a job they themselves can do. Legitimate as such a position seems, disciplinary defense counsel will be able quickly to get to the crux of the behavior the disciplinary authorities thought was worthy of investigation. Many insurance carriers allow attorneys to choose their own disciplinary defense counsel rather than using counsel the insurance company uses to defend in negligence actions. Retaining someone familiar with the disciplinary rules, case law and procedure is important. Disciplinary investigations and prosecutions are quasi-criminal in nature. They share the characteristics of both criminal law and civil law. Disciplinary defense counsel has a complete understanding of the interplay between these two areas in a disciplinary matter.
Once the response is submitted to the disciplinary authorities, there is nothing to do but wait. Although one always hopes for a quick decision, it does not always work out that way. Investigations, like civil litigation, are on a time track. The ones that must be decided because the time limit is nearing are the ones that the disciplinary authorities will work on. When your case reaches that point, a decision will occur. Sometimes this seems like an exceedingly long time. Taking the attitude that no news is good news can help in alleviating the anxiety of awaiting a decision.
Once the dismissal arrives, understandably, you will heave a big sigh of relief.
If, rather than a dismissal letter, you obtain a letter that says that your response has been received but there are just one or two other questions the investigator has, you may want to seriously consider hiring disciplinary defense counsel. This is a signal that either you missed a matter upon which the disciplinary authorities were focusing or that there is a real ethics problem with your representation of your client. Either way, you will want an independent third party to work out whatever can be worked out with the disciplinary authorities and discover exactly what they believe you did wrong.
There is no doubt that a disciplinary investigation causes stress and concern. However, the vast majority of attorneys get through it without incident. Chances are good that you will, too. It is only in a handful of cases that actual prosecution ensues.