Edited: January 28, 2019 to reflect the California Bar’s 2017 Annual Attorney Discipline Report.
If you’ve received an ethics complaint from the California Bar, take heart. You’re certainly not alone. The California Bar releases an annual discipline report generally in April of each year. As of January 28, 2019, we’ve updated this post to reflect the most recent annual discipline report which provides the statistics for attorney discipline in 2017. During 2017, the California Bar received more than 15,175 new ethics complaints filed against lawyers. Out of that number, the disciplinary committee filed disciplinary charges or stipulations to discipline in 491 cases. The State Bar Court recommended 592 formal disciplinary actions. The Supreme court disbarred 129 and suspended 134.
Related to the California Bar’s backlog, the number of cases open where the Bar had yet to file any disciplinary charges or reach any other disposition within six months of the date the complaints were filed amounted to 1,851. According to Table 1A, that is a 23% increase compared to the 2016 backlog. More than one-third of the 1,851 were suspended or had a previous suspension and were also reactivated. Thirty-five percent of the backlog was subject to anticipated disbarment. Only 23 cases were referred to probation.
The most commonly reported ethics violation for 2017 was overdrafting the trust account.
With an increase in the number of ethics complaints filed and an increase in the backlog, you must be prepared to properly respond if you receive notice of an ethics complaint filed against you.
Here’s what you should do before you respond.
Read the Entire Ethics Complaint
Consider how you handle a client matter. If you’re served with a complaint where your client is named as a defendant, you’d read the entire complaint. You’d probably read it more than once. You should read the entire ethics complaint at least once. Yes, you’re likely going to feel angry. No one really likes feeling as if the California Bar targeted them for something they feel is unjustified. Knowing everything that’s in the complaint can help you understand what you’re facing.
Yet, the contents may surprise you. In fact, it may not have anything to do with the discord you’ve heard from your clients.
Contact Your Malpractice Insurance Provider
If you have malpractice insurance and you’ve yet to inform them about the ethics complaint, contact them right away. Then, review your policy. You may have specific coverage that can help you determine which attorney you should hire to help you if the matter is serious.
This is probably the most difficult aspect of the process. Receiving an ethics complaint from the California Bar isn’t something that’s going to leave you full of happiness and pleasant dreams. You must address how receiving the complaint made you feel so that you can distance yourself and stay objective when you respond. Do whatever it is that helps you remain calm. You’re feeling what all your clients feel when they get sued. Just like you advise them to remain calm and not respond in anger, you must do the same.
Get Familiar with the Rules
By rules, we’re not just talking about the rules you’re accused of violating in the complaint (although that’s also important). We’re talking about the rules involved in the discipline process. California has a detailed process. Megan Zavieh’s The Playbook can help you find the original text. It also explains what each rule means and how you can handle an ethics complaint starting from the investigation process all the way through the appeals process.
Meet with an Attorney
To decide whether you should handle your own response or hire an attorney, there are several factors you must consider. Three important factors are the identity of the complaining witness, the severity of the potential consequences, and whether you have a previous discipline history. Those three factors alone could mean that hiring an attorney is your best defense option. Even if you believe that you can handle your response, meeting with an attorney who handles bar defense matters can help ensure that you’re on the right track and that you’re aware of potential pitfalls.
Properly Plan Your Response
Much like responding to a complaint where your client is named as a defendant, you’ll have a deadline by which your response must be filed. Consider the deadline during your planning process. Ask for extra time to respond. Remember that whether you hire someone or not, that extra time could come in handy. The emotional toll that an ethics complaint takes will also play an important part in whether you’re able to meet the deadline.
Recognize That the Issue Won’t Be Resolved Overnight
Do not allow the process to overtake your life. You must recognize that the process won’t be resolved overnight. You must find a way to balance this with the obligations you have to your clients. Allow the experience to affect how to relate to your clients. They’ve been in your shoes and they too must continue to function.
Understand that the Process Can Affect Your Practice
You must consider the way that your practice will be impacted. Will you eventually need to disclose the charges to current clients? Will you have to stop taking on new clients? Can you be an effective lawyer while handling this matter?
It’s not always easy (or possible) to answer these questions when you first receive the complaint, but they are things that you must think about. If you’re involved in a partnership, you can discuss whether they can handle your cases if that becomes necessary. If you’re a solo lawyer, you may need to reach out to friends and colleagues who are in the same practice area.
Do You Need Help Planning Your Defense?
If you’ve reviewed an ethics complaint and you’re considering professional assistance with your defense, Zavieh Law is here to help. Megan Zavieh is admitted to practice in California, Georgia, New York, and New Jersey. To schedule your consultation, click here.
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!