How to Deal with State Bar Disciplinary Matters

How to Deal

with State Bar

Disciplinary Matters

Douglas Chandler

Contact a Chandler Law Attorney Today

(770) 872-0663 | [email protected]

How to Deal with State Bar

Disciplinary Matters – 1

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eceiving a Bar complaint can be one of the

most traumatic experiences in an attorney’s

professional career. I’ve spent a lot of time

writing about how to avoid Georgia State Bar com-

plaints, but what do you do if you receive one? How

you respond, and the type of assistance you seek, is

absolutely critical in minimizing the disruption as

well as disposition.

Here’s a quick summary of Bar complaint ling

volume from the 2011-2012 OGC Annual Report.

3,584 clients contacted the State Bar, and of those

2,105 actually led complaints. 1,733 grievances were

dismissed, and 268 were reviewed for further inves-

tigation. While some are still in process, the results

included everything from dismissal through con-

dential or public discipline.

Pursuant to the Bar’s procedural Rules, the 2,105

complaints were sent to the attorney for a response.

Once the initial shock wears o, most attorneys tend

to follow one of three paths:

1. Do nothing. I’m going to ignore this [expletive]

thing. ere’s no merit.

2. Spill their guts. I’ll overwhelm the Bar and the

grievant by discussing every minute detail.

3. Respond eectively. Keep reading below.

e Bar Complaint Response Process

Your initial response will not only improve your

chances of a quick dismissal, but will also minimize

the possibility and severity of discipline should the

complaint have merit. Using the appropriate for-

mat, tone, workow, and advocacy can improve

your chances of success and minimize the potential

damage. Aer working with hundreds of attorneys

through this process, here is the most eective way to

react and respond:

• Get over it. is really did happen. Compartmen-

talize it and deal with it.

• Read it cover to cover. Most are only a few pages.

Also review the client le to refresh your memory.

I hope you kept a copy if the client requested their

le back.

• Respect the deadline. In most cases, you have

about 2 weeks to initially respond. You don’t want

to get a phone call reminding you that you have

missed a deadline.

• Dra your response. Try to link each complaint

to the applicable Bar Rule and then respond

based on that Rule. is is how the complaints are

reviewed. Submit whatever supporting evidence

you have, even unsigned dras and notes.

• Contact your E&O carrier. Many carriers require

you to report everything, and many also cover the

cost of the attorney you choose. If your carrier

does not provide cost of defense or indemnity for

attorney’s fees, it is well worth including this type

of coverage in your renewal discussion.

Always Seek Independent Advice

My good friend Warren Hinds oen mentions Abra-

ham Lincoln’s famous quote, “He who represents

himself has a fool for a client.” Just like you tell your

clients every day, you need an advocate – someone

else responding on your behalf. Your advocate may

be a peer who can oer neutral advice, or someone

with specic experience in these matters along with

established Bar relationships. It is also easier for the

Bar to communicate with counsel rather than the

accused.

Part One: Responding to Bar Complaints

How to Deal with State Bar

Disciplinary Matters – 2

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f the grievance screening members, aer the initial

response, believe there has been a violation, they

will send the grievance to the Investigative Panel

(IP) or an IP subcommittee. At the same time, the

named attorney (respondent) is served with a Notice

of Investigation. is documents the acknowledge

ment of the charge, the alleged Rule violations, the

Panel Member (and sta investigator if applicable)

assigned, and the opportunity to respond in writing

under oath. A list of active Panel Members is provided,

and the respondent also receives notication of the

right to challenge the competency, qualications or

objectivity of any Panel Member.

Responding to the Georgia Bar Investigative

Panel

Once service of the Notice of Investigation is acknowl-

edged, the clock starts running for what is normally

a 30 day window to le a veried response. Here are

four general themes in responding to the Investigative

Panel:

1. I didn’t violate any Rules.

2. I may have technically violated Rules, but not the

spirit in which they were created or intended.

3. ere were extenuating circumstances.

4. I did violate the Rules. Have mercy upon my soul.

As the respondent, this is your last opportunity to keep

the matter condential. Remember, this doesn’t mean

that you are tried and convicted. If there was a commu

nication breakdown at the initial stage, x it now and

ensure that the response is 100% accurate. If you get

caught in a misstatement or dishonest action, you could

be charged with additional Rule violations, like Rule

8.4(a)(4) for professional misconduct involving dishon

esty, fraud, deceit or misrepresentation. If you and/or

your counsel determine that your acts or omissions did

violate a Rule, this may be the time to admit it and sug

gest appropriate punishment. e IP may look favor-

ably upon what is known as a Voluntary Petition for

Discipline, particularly if there are mitigating factors, no

aggravating factors, and no prior disciplinary history.

Based on the veried response, the Investigative Panel

has several options:

1. Dismiss the Notice of Investigation – no action

taken.

2. Refer it to the Arbitration Committee – oen the

case with fee disputes.

3. Refer it to the Committee on Lawyer Impair

ment – if the lawyer requires medical or psycho-

logical treatment.

4. Issue a letter of instruction – helps the attorney

avoid future situations. is is not considered

discipline

5. Issue a formal letter of admonition – a letter out

lining the Rules violated and the ndings of the IP.

is is the lowest level of condential discipline,

and remains on your record.

6. Issue an IP Reprimand – in-person admonition

before the members of the IP.

7. Issue a Notice of Discipline – failure to formally

reject this Notice may result in the loss of right to

an evidentiary hearing. Following rejection of the

Notice of Discipline by the respondent, the Inves

tigative Panel may consider new evidence and take

appropriate action, or it may direct the Oce of

General Counsel to le a Formal Complaint and

Petition for Appointment of a Special Master. If the

respondent fails to reject the Notice, the respon

dent is in default and is subject to further public

proceedings as may be determined by the GA

Supreme Court.

It’s Time to Get Help with Your Georgia Bar

Grievance

If you haven’t engaged counsel during the initial griev-

ance review, do it now. Depending on the result of this

investigation, report and the IP’s decision, you could

face serious discipline, or even the ultimate sanction

–

disbarment. Do you really want to go at this alone?

Find an attorney with specic experience in these

disciplinary matters and with established State Bar

relationships.

Part Two: Investigative Panel Review

How to Deal with State Bar

Disciplinary Matters – 3

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s attorneys, we’ve certainly made mistakes. A

quick review of Bar complaint ling volume

from the 2011-2012 Georgia Oce of Gen-

eral Counsel (OGC) Annual Report shows that 3,584

clients contacted the State Bar and 2,105 actually

led complaints. e Georgia Bar does a great job of

screening and disposing of frivolous complaints by

disgruntled clients (and opposing counsel), but about

20% of complaints are not dismissed.

Understanding why Bar complaints are led can help

us avoid them. I talked to members of the OGC Of-

ce sta who monitor grievance communications,

and also drew upon my own experience defending

lawyers facing Bar complaints, to create a partial list

of situations that resulted in clients ling Bar com-

plaints. Some of these may seem humorous, but all

should be taken seriously as they can have a major

impact on your reputation and law practice.

Situations that resulted in clients ling

State Bar complaints

1. My former attorney will not return my le to me.

2. My attorney will not return my phone calls. I

always get the paralegal.

3. My attorney represented my partner and me

when we started the business. en he repre-

sented by partner against me when our business

dissolved.

4. My attorney’s paralegal gave me the wrong advice.

5. My attorney settled my case without my author-

ity, or for too little money.

6. My attorney represented my ex-spouse a few

years back in a similar matter.

7. My attorney did not tell me that there was a po-

tential conict of interest or advise me to get an

independent professional opinion.

8. My attorney charged me too much for the work

performed.

9. e opposing counsel threatened to report me to

the IRS if I did not resolve the matter.

10. My attorney disclosed condential information to

the media which caused the business deal to fail.

11. My attorney made advances to me during a time

when I was emotionally vulnerable / owed him a

lot of money.

12. My attorney told me that he could negotiate that

Medicare lien to zero.

13. My attorney compromised my case just to avoid

trial.

14. My attorney prepared the contract which later be-

came the focus of the litigation, and then told me

that he could represent me in the litigation too!

15. e attorney allowed an improper notary / forged

a signature on case critical documents.

Once you are done chuckling and asking yourself

whether things like these really happen, think back

to your own unique experiences. As the saying

goes, perception is reality – and perception is what

sometimes guides client decisions. Have you acted

in a similar fashion at one point in time, or could a

client have misperceived your actions? You prob-

ably provided an explanation, corrected the problem,

improved a relationship, or even disengaged from

the client. Imagine if you had instead received a Bar

complaint.

With this knowledge you can improve your internal

processes to ensure clients won’t even perceive that

these activities are occurring. ink about ways you

can improve communication, better document client

procedures, promptly return les, and regularly train

your sta to help prevent client misperception. en

you can ask me to lunch to share your war story, rath-

er than asking me to represent you.

Part Three: Why Clients File Bar Complaints

How to Deal with State Bar

Disciplinary Matters – 4

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or a small percentage (about 3%) of Bar com-

plaints, the Investigative Panel nds probable

cause (Rule 4-204.4) and refers the case to

the Oce of General Counsel (OGC) to le a For-

mal Complaint before the GA Supreme Court. At

this point, the named attorney’s professional career

and reputation are on the line, and the attorney can

expect to receive some sort of public discipline. e

respondent-attorney is served with Notice, a Peti-

tion for Special Master (acting as the trial judge),

and a copy of the Formal Complaint. Hopefully, the

respondent has already retained an attorney who will

acknowledge service and avoid the embarrassment of

service by the Sheri.

Unless there is a negotiated agreement by the ling

of a Voluntary Petition for Discipline, which must be

ultimately approved by the GA Supreme Court, the

attorney-respondent is now involved in full-blown

litigation. is includes an Answer to the Formal

Complaint, written discovery, witness identication,

depositions, motions, hearings and ultimately trial.

e oce, data, clients, and peers are all fair game for

the OGC prosecutors, which can disrupt the respon-

dent-attorney’s practice and drain nancial resources.

What’s worse, the information is available to peers

and the general public.

Potential Georgia State Bar Complaint

Sanctions

At this point, the respondent-attorney is going to get

punished publically. e only dismissal examples I’ve

seen at this point were for internal procedural mis-

takes. Punishment options include:

• Review Panel Reprimand

• Public Reprimand before a trial judge

• Suspension

• Disbarment

Respondent-attorneys still have a chance to negoti-

ate a resolution, but it depends on the issue(s) and

is greatly inuenced by the involved member(s) of

the State Bar and the make-up of the GA Supreme

Court. e goal of the OGC is to protect the public,

so they will aggressively pursue each case. Generally,

the most eective negotiation option is for the re-

spondent-attorney to quickly get to the central issues

and oer a realistic resolution based on supporting

disciplinary case precedent, mitigating factors, and

aggrevating circumstances.

Real Life Bar Complaint Example

Here is an example. My client’s law rm was under at-

tack aer federal agents uncovered a network of run-

ners/cappers getting an illegal piece of the settlement.

My client admitted responsibility and requested a

6-month suspension. e State Bar and the Supreme

Court agreed. Other attorneys entangled in the same

runner network held out, dragged out the proceed-

ings, and were ultimately disbarred.

Normally Bar complaints should be resolved well

before the Georgia Supreme Court gets involved. If

you ever receive a complaint, immediately seek expe-

rienced counsel, respond quickly and accurately, and

work toward a fair resolution to the situation.

Part Four: What to Expect if the Complaint

Against You Ends Up in Front of the Georgia

Supreme Court