● Responding to a bar complaint
● Defending a disciplinary charge
● Defending a motion to disqualify

Responding to a bar complaint

The Kentucky Bar Association receives about fourteen hundred bar complaints every year. Many of them are frivolous. But even a frivolous complaint can trigger a disciplinary investigation, because the Office of Bar Counsel ("OBC") is not restricted by the allegations of the complaint.

Currently, about 30% of the total  –  that is, over 400 complaints – result in formal disciplinary charges. (See Bench & Bar magazine, September 2006, at 3.)

In fact, a disciplinary charge can result from an issue that is raised for the first time by the content of the lawyer's response. For that reason alone, every bar complaint is a potential source of trouble.

Nevertheless, it is clearly not necessary to retain counsel for each and every bar complaint. As in other areas of the law, the difficulty is knowing when it makes sense to employ another attorney.

Ten factors to consider

Mr. Cowgill recommends that you consider ten factors in deciding whether you should employ a legal ethics attorney to assist you in responding to a bar complaint. Specifically, he recommends that you strongly consider hiring counsel to assist you if:

► 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.

Statistics show that each of those factors increases the likelihood that the Inquiry Commission will decide to issue a formal charge of misconduct against you.

That may not happen until many months after your response, when the KBA's file is reviewed and presented to the Inquiry Commission for a decision on what should be done in disposing of the bar complaint. It is therefore important that your response tells your side of the story, carefully and completely, so that it will stand as a proper statement of your position long after the fact.

Even when none of the foregoing factors is present, competent ethics counsel can help you reduce the likelihood that the complaint will result in unforeseen consequences. In particular, a competent ethics attorney:

► can often identify issues beneath the surface of the complaint that need to be addressed preemptively;

► may also see opportunities to persuade the reviewing attorney that your conduct ought to be analyzed in a different manner or under a different rule;

► may recognize a need to pursue a deferred disposition of the complaint in a proactive way. where there exists a likelihood of a charge; and

► can help you manage the situation in a way that avoids additional ethics issues.

Defending a disciplinary charge

Formal charges of professional misconduct are issued by the Inquiry Commission following its review of your response to a bar complaint (or a complaint issued in its own name).  Formal charges are clearly identified as such and are similar in format to an indictment.

Experience teaches that it is always unwise for any lawyer to represent himself in the defense of a formal charge. The issuance of a charge means that the Inquiry Commission has already found probable cause to believe that you are guilty of professional misconduct. The KBA steps in as the  "Complainant," and the person who filed the bar complaint ceases to have any role except as a witness.  In short, the issuance of charge means that you are headed directly toward a final order of the Kentucky Supreme Court, imposing disciplinary sanctions in accordance with the recommendation of the KBA, unless you mount a defense which succeeds in showing that a different outcome is warranted by the facts and law.

Defending a motion to disqualify

A motion to disqualify is typically based upon an alleged conflict of interest.

The conflict-of-interest rules are part of the Rules of Professional Conduct. That's important for two reasons:

► It means that a motion to disqualify is most successfully prosecuted or defended by providing the court with a clear and articulate explanation of how the conflict rules apply, supported by case law from Kentucky and, if necessary, from other jurisdictions that have similar or identical rules; and

► It means that a lawyer who is the subject of a motion to disqualify may also become the subject of a disciplinary proceeding, and is well advised to defend the motion with an eye toward that possibility.

Mr. Cowgill has successfully defended lawyers against motions to disqualify.  He has also served as a testifying opinion witness on both sides of disqualification proceedings.