I was working on a state court complaint the other day for abuse of process against an attorney and his client. With full knowledge of all relevant facts, the attorney filed an unlawful detainer action based upon a three-day notice he had rescinded in a writing to the tenant. Despite that rescission, the attorney filed the unlawful detainer based upon the notice, drafted and had his client sign a verification of the UD complaint stating that the notice had been given and was the basis for the complaint, and eventually got an order of eviction based upon the rescinded notice. The order came after a “trial” that the attorney did not tell the tenant about, at which he presented sworn testimony from his client to the effect that the three day notice was in effect.
In putting together the complaint, it crossed my mind to make a complaint to the State Bar as well. After all, this attorney’s conduct clearly violates multiple ethical standards applicable to attorneys. He was not candid with the court, presented false pleadings, suborned perjury both in the verification of the complaint and the trial testimony, and repeatedly misrepresented to the Court the status of the notice — whether by affirmatively stating that the notice was in effect or by failing to state that the notice had been rescinded. I would argue that such deceitful conduct was also committed with moral turpitude.
All of this brings me to today’s point — we worry about our relationship with our clients and whether they will sour, leading to State Bar complaints, but clients are not the only potential source of disciplinary investigations. Anyone can file a complaint about an attorney. Your ethics practices are being scrutinzed by adversaries and their clients, judges, and everyone involved in the legal process. It pays to keep your nose clean no matter who you’re dealing with.
When a complaint is filed, one of the first things the Bar will ask is that you present most of your file for their review. While issues of privilege will at times shield your work from scrutiny, you should not count on that for your own protection. For each action you take, each strategy you devise, carefully consider whether you would feel comfortable standing before the Bar explaining your actions. If you wouldn’t, reconsider what you’re doing. Even if your client condones it, as I’m sure the client in the case I was drafting did, you may well find yourself the subject of an investigation instigating by someone else.
If you receive an ethics complaint from the California Bar and you’re not sure where you should start, check out The State Bar Playbook. This is Megan’s interactive and easy to use guide (and community!) that will help guide you through the process from receipt of the complaint all the way through the appeals process!