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Do's and Don'ts in Responding to a Bar Complaint
A CLE presentation for the Louisville Bar Association
Benjamin Cowgill, Counselor and Attorney at Law
2333 Alexandria Drive, Lexington, Kentucky 40504
Telephone: (859) 225-5236 • Fax: (859) 225-5237
Web site: cowgill.com
Lawyers often ask me, "How should I go about responding to a bar complaint?" The answer is, "It depends."
You must be truthful and responsive, of course; that's an ethical duty. See SCR 3.130(8.1). But that doesn't go very far in telling you how much needs to be said, how it should be said or what other steps might be taken to address the situation appropriately.
That's partly because bar complaints come in all shapes and sizes. Some are barely intelligible, even to the lawyers in the Office of Bar Counsel, while others cite chapter and verse from the Rules of Professional Conduct.
Some are filed by disgruntled clients or disappointed adversaries and are obviously retaliatory in nature. But others are issued by the Inquiry Commission itself, often in response to a report from a judge, and should be regarded as the practical equivalent of a formal charge of misconduct.
Between those two extremes there are at least 57 different varieties, like the pickles that inspired the name of Heinz ketchup.
The Office of Bar Counsel opens a file (and therefore requires a response) if the complaint contains any words or phrases which indicate that the respondent may have violated one or more provisions of the Rules of Professional Conduct. It takes very little to meet that standard; consequently, many different kinds of complaints are forwarded to the attorneys for response. Some are easily rebutted while others require a careful and considered response.
Let me clear in saying that I am not encouraging anyone to employ a "strategy" in responding to a bar complaint, if that term is construed to mean anything evasive or improper. But if it is your "strategy" to respond appropriately, avoid further trouble and maximize the chances that the complaint will be dismissed (or at least reduce the chances of making things worse), that is what this presentation is about.
Different allegations of misconduct obviously require different kinds of information in response. But the content of the complaint is not the only factor that distinguishes one bar complaint from another. Other factors include the lawyer's prior disciplinary record and whether there are any other complaints pending against the same lawyer.
That's because the OBC is not limited by the allegations of the complaint in deciding how much attention the situation deserves. Its job is not to rule upon the sufficiency of the bar complaint like a judge ruling on a motion to dismiss. Its job is to investigate any situation that may involve a violation of one or more duties under the Rules of Professional Conduct.
Having said that, the reality is that OBC doesn't have the resources to launch an independent investigation of everything that comes to its attention. It therefore relies heavily on a day-in, day-out process of reviewing lawyer's responses to bar complaints and making recommendations to the Inquiry Commission as to which of those complaints should be dismissed and which should be converted into formal charges. In most cases, the recommendation is based on nothing more than a side-by-side comparison of what the complaint alleges and what the lawyer has said in response. As indicated, however, it may also be influenced by any other information in the Office about the same lawyer, including any prior disciplinary record.
That means that the content of the lawyer's response is absolutely critical to his or her defense. All too often, lawyers "whip off" responses to bar complaints in the mistaken belief that their responses are the first step in a dialogue with the Office of Bar Counsel. The OBC simply doesn't have the time or resources to handle bar complaints in that way. It therefore relies heavily on its review and assessment of the response in deciding whether to recommend a formal charge.
Thus, there isn't one right way to respond to every bar complaint, just as there isn't one right way to make a settlement presentation in every personal injury case or negotiate a plea bargain in every criminal case. There are simply too many factors that determine what constitutes an appropriate response.
Consequently, I don't give CLE presentations titled, "How to Respond to a Bar Complaint." I think it is more helpful to offer a list of "Do's and Don'ts" that will help a lawyer avoid common mistakes in responding to any bar complaint. For all the differences I have mentioned, there are still some things that can be said which have general application.
Let me emphasize, however, that this is only a list of "do's and don'ts," not a cookbook that tells you everything to put in or what to leave out. If anyone else would presume to offer you such a cookbook, that person is doing you a disservice in my opinion.
This list of "Do's and Don'ts" is based primarily on my experience inside the OBC, first as Chief Deputy Bar Counsel and then as Chief Bar Counsel. In those positions I had the opportunity to see lawyers make many mistakes in the way they responded to bar complaints. I have no doubt that OBC continues to see other lawyers make the same mistakes every day.
If my experience is any guide, lawyers who follow these suggestions will be less likely to have an unhappy experience with the disciplinary process.
A. Getting Ready to Respond
1. DO get your head on straight. A bar complaint is a serious matter even if it is completely without merit. It is a serious matter because it is delivered to you as an official communication from the Kentucky Bar Association, acting as an agency of the Kentucky Supreme Court. That fact alone triggers ethical responsibilities under the Rules of Professional Conduct including, in particular, the duty to respond. (See Rule 8.1).
But a bar complaint is not the end of the world, no matter how serious it is. That needs to be said because, sadly, disciplinary problems cause some lawyers to sink into despair and become self-destructive. This, too, will pass, and you'll feel better about it as soon a you get on top of it.
Therefore, DO take the bar complaint seriously but DON’T panic, DON’T beat yourself up, DON’T lash out at the complainant (or anyone else), and DON’T try to “fix” the situation by taking remedial steps without careful consideration (and, preferably, the advice of counsel) regarding their impact on the allegations against you.
a. Bear in mind that the Office of Bar Counsel has already made a threshold determination that the Complaint raises issues about your compliance with the Rules of Professional Conduct. Otherwise, you would not be asked to file a response.
b. Consider the value of confiding in a trusted friend or colleague, in order to have a confidant and coach as you prepare your response. You are required to maintained the confidentially of the bar complaint (see SCR 3.150), but that duty has never been interpreted to prevent you from discussing the matter confidentially with a close friend or advisor, even in the absence of an attorney-client relationship.
2. DO take time to acquire a basic understanding of the disciplinary process, so that you will have an understanding of why a file has been opened and what comes next. (See "An Overview of Kentucky's Attorney Disciplinary Process" on this site).
3. DON’T call the attorneys in the Office of Bar Counsel to persuade them that they never should have opened the file, and certainly don't belittle them for doing so. That accomplishes nothing except drawing more attention to your file and getting off on the wrong foot. As obvious as that may seem, lawyers do it every day. That's because they never got past Rule #1 above.
4. DO give due consideration to the old maxim that “a man who represents himself has a fool for a client – and a fool for a lawyer.”
a. Reasons why it might be foolish to represent yourself:
i. You cannot exercise independent professional judgment in evaluating your own situation.
ii. You don’t spend most of your time analyzing fact patterns for possible violations of the Rules of Professional Conduct (and the lawyers in the Office of Bar Counsel do).
iii. Your experience in civil or criminal proceedings is not equivalent to experience with the disciplinary process. It is a different arena with different rules, standards and conventions.
iv. Your response to the bar complaint will become part of the official record of the case if a charge is filed against you, and may be given greater weight than your answer to that charge.
b. Ten factors to consider. While every case turns on its facts, experience teaches that there is a higher likelihood you will be charged with professional misconduct where one or more of the following factors are present:
• the complaint contains any allegation that you have (a) engaged in dishonest conduct, (b) mishandled client funds, (c) violated a duty under rules of court, or (d) exhibited signs of alcoholism, drug dependency or any other condition that may impair your ability to practice law; or
• the complaint has been issued by the Inquiry Commission in its own name (identified as an "Inquiry Commission Complaint"); or
• the matter has been brought to the attention of the KBA by a judge or appellate court; or
• your conduct was the subject of an investigation by the Office of Bar Counsel before the complaint was filed; or
• the complaint alleges that your were not licensed in Kentucky at the time of the conduct at issue; or
• you have a prior disciplinary record that includes more than one private admonition or any other sanction more severe than a private admonition; or
• you have been the subject of bar complaints by three or more clients within a period of one year; or
• you have been the subject of several bar complaints containing similar allegations (e.g., lack of diligence or inadequate communication with clients); or
• the complaint has been filed by another lawyer, or by someone who appears to be assisted by a lawyer; or
• you have received a follow-up inquiry from the Office of Bar Counsel after filing your initial response to the bar complaint.
Where any of those factors is present, you are well-advised to consider hiring a lawyer to assist you with your response.
Many lawyers decide to prepare their own responses to avoid the expense of hiring an attorney, telling themselves that they can always do so if they receive word that the Office of Bar Counsel finds something significant in the complaint. All too often, they are surprised to find that the next communication they receive is a charge of professional conduct, and that they are haunted by ill-considered contents of their response throughout the ensuing disciplinary proceeding.
c. Examples of bar complaints for which you MIGHT not need the assistance of counsel:
i. A complaint by a convicted client which ONLY raises issues about the way you exercised your independent professional judgment in your defense of the case.
ii. A complaint by a convicted client (or family member) which ONLY alleges that you failed to provide a competent defense (and does NOT raise issues of diligence or client-communication).
5. DO consider the potential benefit of hiring a legal ethics attorney to counsel and assist you in preparing your response, even if you decide that you don’t want him or her to enter an appearance on your behalf.
a. Investigation. Your attorney can discuss the matter with the complainant and other witnesses more easily, more productively and with less risk of creating additional ethical issues. You may still have an attorney-client relationship with the complainant, but your own lawyer does not.
b. Analysis. Your attorney can also help you see the situation objectively and prepare a response that addresses the issues in a detached, professional manner.
c. Drafting. An experienced disciplinary defense lawyer can help you frame your response in a way that addresses the ethics concerns legitimately raised by the bar complaint and reduces the risk of an expanded investigation.
B. Starting Work on the Response
1. DO “front load” your attention to the matter in the preparation of your response to the complaint. In other words, DON’T make the mistake of “whipping off” a half-baked response while telling yourself that you will take time to prepare a more complete response later if the KBA isn’t satisfied.
2. DO make a careful analysis of the actual content of the complaint and identify the Rules of Professional Conduct actually placed at issue by the allegations of the Complaint. In other words, DON'T make the mistake of treating the complaint as a wholesale attack that should be met by a wholesale counter-attack.
3. On the other hand, DON’T take undue comfort in the fact that the allegations of the complaint are incomplete, inarticulate or even self-contradictory. The decision-makers in the disciplinary process will be inclined to forgive many shortcomings in the complainant’s ability to articulate the reasons for his or her dissatisfaction with your services, especially if it appears that the complainant is uneducated or semi-literate. Likewise, the decision-makers will not look favorably on your response if it appears that you are focusing on the language of the Complaint as a way of avoiding a candid response on the merits.
4. DO be aware that the Office of Bar Counsel will probably provide a copy of your response to the complainant, with a cover letter inviting the complainant to comment on your response.
5. DO be aware that your response to the complaint will continue to be part of the official record of the case if a formal Charge is filed against you. In fact, your initial response may be given more weight by some of the decision-makers (e.g., members of the Board of Governors and Justices of the Supreme Court) than the “formal” contents of your Answer to the Charge.
6. DO be aware that the Office of Bar Counsel can ask the Inquiry Commission for permission to investigate aspects of the situation that are not placed at issue by the allegations of the complaint, if it concludes from your response (or from any other information) that you may have engaged in misconduct in some way that it is not placed at issue by the allegations of the complaint.
7. For all the reasons set forth in paragraphs 4, 5 and 6, DO analyze the situation carefully and decide upon an approach which: (a) is truthful; (b) has the best chance of getting the best outcome under the circumstances; and (c) does not run a risk of making matters worse by concealing or “fudging” matters that will come to light as the investigation proceeds.
The “best” approach in any case depends on a number of factors, including the form and content of the complaint and the true facts of the situation as you know them.
In some cases, a lengthy and detailed Response is necessary to show that the complaint is without merit and should be dismissed. In other cases, however, a lengthy and detailed response may “backfire” by raising issues that are not fairly raised by the complaint.
It is therefore necessary to analyze the situation and decide upon an appropriate response, just as you would decide upon a strategy in a civil or criminal case. That does not mean deciding whether you should be candid or truthful; that's a given. Rather, it is a question of deciding what kind of response is appropriate, considering the contents of the complaint, the true facts of the situation and all other relevant factors.
C. The Form of the Response
1. DO comply with the instructions and suggestions you received from the Office of Bar Counsel with the bar complaint. There can be no doubt that a well-packaged response makes a favorable impression and, conversely, that a poorly-packaged response may be regarded as an indication that you really are incompetent. That's human nature, and it applies in the disciplinary system as much as it does in the courts.
2. On the other hand, DON’T submit a response that is formalistic in appearance or legalistic in tone. In particular, DON’T submit a response that looks like an answer in a civil case or contains ten different defenses that have no application to disciplinary proceedings. Responses of that nature are a great way to get off on the wrong foot with the lawyers in the Office of Bar Counsel, and that should not be your goal.
D. The Contents of the Response
1. DO consider whether it makes sense to hire counsel to file the response on your behalf, so that counsel can address aspects of the situation in a way that might seem less appropriate coming from you.
2. DO err on the side of submitting a detailed response, in order to demonstrate that you are taking the matter seriously and endeavoring to be completely candid with the disciplinary authorities.
3. DON'T attack the complainant, but DO include straightforward factual information about any difficulties you encountered in maintaining a productive relationship with the complainant (e.g., difficulties in communication), IF those facts are relevant to the question of whether you fulfilled your ethical duties to the best of your ability.
4. DO document your assertions with photocopies of appropriate documents, e.g., pleadings, motions, correspondence, memos to file, telephone logs, time records, handwritten notes, and anything else of a genuine, contemporaneous nature. Abundant documentation goes a long way in satisfying the Office of Bar Counsel and the Inquiry Commission that your side of the story is the one they should believe.
5. Likewise, DO look for opportunities to show why the complainant does not have an accurate understanding of the situation -- for example, that there were aspects of the situation not known to the complainant. That kind of information helps the decision-makers reconcile the allegations of the complaint and the position asserted in your response in a manner favorable to you.
6. DO consider the value of attaching affidavits from appropriate witnesses, who may include law partners, office staff or independent third parties such as former employees or court personnel who witnessed particular events. See #4. above.
© 2006 Benjamin Cowgill • All rights reserved