Every year, the California Bar releases the most common bar complaints filed for the year. We still have right around three weeks before we can expect the report detailing complaints filed in 2018. So, instead, we thought we’d share, from a historical perspective, the most common bar complaints as well as what lawyers should do if they receive one.
Related: [VIDEO] 5 Tips for Reducing the Likelihood of a Bar Complaint
The Three Most Common Bar Complaints
The three most common bar complaints filed against lawyers are allegations of incompetence, not acting with reasonable diligence and promptness, and the lawyer having a conflict of interest. When it comes to all three of these common bar complaints, it’s important to note that every jurisdiction has rules that speak directly to these subjects. Those rules may or may not be a direct adoption of the ABA Model Rules. We will discuss these most common bar complaints with the ABA Model Rules in mind.
Competence. ABA Model Rule 1.1 states that lawyers are required to provide competent representation. The rule goes on to say that competent representation is comprised of the necessary legal knowledge, skills, thoroughness, and reasonable preparation for representation. It’s also important to note that technological competence is also required in many jurisdictions.
Diligence. ABA Model Rule 1.3 covers diligence as a requirement. It states that lawyers must act with reasonable diligence and promptness during representation. What does this mean? It means you must get in control of your schedule. You must get and stay organized. You must research and follow through on all potential legal theories you plan to use. In short, you must do everything that is necessary to represent your client.
Conflict of interest. ABA Model Rule 1.7 covers conflicts of interest. Unless your relationship with the client meets a stated exception, you must avoid representing the client if it creates a conflict of interest for a current client. Waiving conflict of interest takes proper consent. Gaining proper consent requires that you read and understand the rules in your jurisdiction related to this matter. A broad waiver within your retainer agreement simply won’t do.
What Lawyers Should Do If They Receive a Complaint
It doesn’t matter what the subject is of the bar complaint. Getting one is a scary experience. Here’s what you should do:
Don’t ignore it. Again, it doesn’t matter if it is one of the most common bar complaints or if it is for a reason we didn’t list. Do not ignore it. It will not go away.
Read the entire complaint from an objective standpoint. Don’t just skim the contents. Read the entire thing from an objective standpoint. We know you have a lot of strong feelings (plural) related to what’s happening, but you must be objective. It’s important to understand the consequences may affect you.
Be aware of the response deadline. Like any other sort of complaint you see, there is a deadline for response. Don’t be afraid to ask the investigator for an extension if it is necessary.
Decide how you’ll address the complaint. Even for the most common bar complaints, you’ll want to consider who filed the complaint, the potential consequences, and whether you have a previous history of bar discipline. All of these factors can affect what happens and may also change how you wish to address the complaint. Small consequences, such as a private reprimand or a small fine, could likely be handled on your own or with limited scope representation. If there are more serious consequences or if you have a previous history of bar discipline, it isn’t wise to handle the situation on your own. Consider full scope representation to help you protect your future.
Create a calm, rational response. Your response isn’t the place to express your frustration at the process. Don’t take your anger out on the investigator. They are doing their job. Don’t try to bury them in paper and think that will make them drop the investigation. If you’re not careful, you could be giving them information that could hurt your position. Do not attack the complainant, either. You must get into a state of mind that contributes to the creation of a calm, rational response. If you can’t get into the right state of mind, get help from an ethics defense lawyer.
If you need resources, Zavieh Law is here to help. Zavieh Law provides both full and limited scope representation. We also provide The State Bar Playbook which walks you through the California Bar discipline system from the time the complaint is filed all the way through the appeals process.