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August 28, 2007

17 Year Veteran Bar Counsel Prosecutor, Michael Frisch Talks About Avoiding/Dealing with Bar Complaints

Michael Frisch, a 17 year veteran Bar Counsel Prosecutor for the D.C. Bar counsel office from 1984 through 2001, current adjunct professor at Georgetown University School of Law and Ethics Counsel for the Law Center graciously offered to guest post on Build A Solo Practice because of the recent conversations on the issue of whether or not solos are disproportionately targeted by Statewide Bar counsels.  This matter was discussed here and also on Carolyn Elefant's MyShingle so I thought we should get the lowdown from someone with nearly two decades of inside knowledge and expertise.

How to Avoid and/or Deal with Bar Complaints - Michael Frisch, Esq.

Susan has asked me to guest post for her readership on avoiding/dealing with bar complaints.

I was a federal public defender and in small firm practice (the last eighteen months as a solo) before joining the D.C. Bar Counsel office in 1984. I was there until 2001. I currently hang my hat at Georgetown While I am most intimately familiar with the process in the District of Columbia, I also worked closely with other jurisdictions, particularly Maryland and Virginia, in cases where we shared disciplinary authority or responsibility. These comments are intended to be generic to all bar discipline matters, except where indicated. (Of course, the views expressed here are my own.)

A couple of preliminary matters should be mentioned. First, in any disciplinary complaint, the bar prosecutor is the key decisionmaker. If the prosecutor decides to bring charges, charges will likely be brought. If the bar prosecutor wants to admonish the lawyer, the lawyer will likely be admonished. If you get a complaint, you must deal with it. There is nothing more important that I can say. Failure to respond to a complaint is a free-standing ethical violation that is the easiest charge in the world to prove. Bar counsel will only get the most negative view of your ability to practice if you won't deal with them. If you need more time, call or write and request it. If you need help in responding, get it. Second, understand the disciplinary process in your jurisdiction. What sanctions may be imposed? How are addiction/depression issues dealt with? Who (court, disciplinary board, bar prosecutor) shapes policy? The rules that govern bar discipline procedures are available online virtually everywhere. If you have a complaint against you, understand the process and know what avenues for resolution of a complaint exist

Is bar discipline biased against solo/small firm lawyers? The answer is not simple. Bar discipline is complaint driven: bar prosecutors react to what they get. It is received wisdom that complainants go to bar counsel when they have no where else to go. Big firm clients tend to change lawyers when they are dissatisfied; small firm clients are far more likely to complain to bar counsel. I perceive no bias at the complaint stage.

There is much greater likelihood of at least subtle bias at the charging stage. Complicated conflicts cases tend to get shunted aside in favor of cases involving neglect, failure to cooperate and, most significantly, money cases. If there is a strong case that the lawyer has fiddled with entrusted funds (i.e. other people's money), the case will likely be prosecuted regardless of the lawyer's status. At the decisionmaking stage, the key question is: who makes the critical credibility decisions in the process? It may be a judge or a panel of lawyers/laypersons. At this stage, I believe that bias can exist in a not so subtle form. It is not so much anti-small firm as pro-big firm. It is also quite pro-partner and anti-associate when those interests clash. My article in the Georgetown Journal of Legal Ethics (spring 2005) makes this argument regarding the District of Columbia disciplinary system in some detail

Avoiding and Resolving Bar Complaints

1. Avoid problem clients. If the client has wildly unrealistic expectations, wants much justice than he or she can afford, or has had several prior lawyers all of whom are liars and cheats, it may be prudent not to get involved. If you decline the case, promptly confirm that fact in writing. Bar Counsel gets plenty of cases where the lawyer and putative client disagree on whether or not there is an agreement to represent. doubt may be resolved in the client's favor. Return any documents if you are not taking the cases

2. Provide competent service. There is no substitute for a sufficient degree of obsessive-complusive behavior toward deadlines, maintaining your calender and being able to document your time and attention to the client's matter. A well-kept file can serve you well if the bar comes calling

3. Communicate. Return calls. Send written updates. Care about the client and the matter. As many complaints arise from a bad bedside manner as a bad law practice. I'm convinced that there are plenty of marginally competent lawyers who never get complaints because their clients like them.

4. Don't encourage unreasonable expectations. This can be tough in practice as the matter evolves and may be unavoidable to some extent, but it is something to keep a close eye on throughout the representation

5. Honesty is the only policy. If there is bad news, deliver it. If it involves your conduct, don't conceal it from the client. The adage that it's the cover up not the misconduct that ruins a career is absolutely true in bar discipline. Don't make a minor problem a suspension-worthy offense. Abide by the rules that relate to honesty with tribunals, opposing parties and third parties

6. Other peoples money. The rules of escrow of entrusted funds are the most important to all lawyers who wish to maintain their license. Know the rules: are you obligated to escrow unearned fees? Escrow violations are considered the most serious violations throughout the country. Follow the rules and keep the required records or have a post-lawyer career plan.

7. If the client fires you (which is the client's right), don't react in anger. While you can protect your right to fees, you should return the file immediately and fully cooperate in the transition to new counsel. Many bar discipline cases have a genesis in a suit for unpaid fees, so be prepared for that if you sue the former client.

If you wish to continue this discussion, I believe Attorney Frisch is willing to answer questions in future blog posts


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Anonymous Lawyer

Very nice and insightful article. I had my own dealings with the Bar in the past, and I cannot over emphasize the importance of being truthful, and being prompt in responding to a bar inquiry.

Most importantly, never assume the bar is on your side when dealing with a formal complaint, and hire a lawyer specializing in bar issues immediately.

Do not give everything they ask for, as you may be divulging attorney client documents, information not relevant to the subject matter of their inquiry.

Therefore, its is imperative that you contact a lawyer!

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