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    Dolores Dorsainvil
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Tips on How to Deal with a Bar Counsel Complaint

Responding to dreaded lettersFor many attorneys, coming across an envelope with the return address marked “Attorney Grievance Commission ” undoubtedly brings a sinking feeling. After reading the bar complaint, an attorney’s initial reaction may be one of many: anxiety, incredulousness, fear, or even anger. Some attorneys may even view the correspondence from Bar Counsel’s office as a personal attack on their credibility and professionalism as a lawyer.  Whatever the feeling, and however the bar complaint arose,[1] with the hundreds of bar counsel complaints that are lodged every year,[2] attorneys should appreciate and understand not only the serious nature of attorney discipline investigations, but that the process can be managed.

Here are several simple tips that will guide you in responding to an inquiry from Bar Counsel should one ever become subject to a complaint:

1)      Think. Before penning an emotional response to Bar Counsel, take the time to think about the legal matter, the history of the case, and the client that filed the complaint.  Taking this time will aid an attorney in focusing on the issues involved in the complaint and may give that attorney time to give a response based on the facts rather than emotions.  An attorney may even want to take the time to review the file in its entirety to make sure that they are able to recall every detail about the underlying legal matter.

2)      Be timely. Request an extension if needed.  In its cover letter accompanying the bar complaint, Bar Counsel provides a date by which an attorney is required to respond. If for some reason, an attorney is not able to submit a timely response, that attorney may wish to request an extension of time to respond. Bar Counsel will usually grant an initial reasonable request for an extension. The attorney should confirm such a courtesy with a written correspondence. If a circumstance exists that requires a lengthy response period, because as we all know – life happens, i.e. illnesses, deaths, vacations, business or personal matters, it is prudent for an attorney to explain that in writing to Bar Counsel, and provide corroborating documents explaining the lengthy extension request.

3)      Respond. This may seem like an obvious step but there are attorneys that, even when they have not committed misconduct, stick their head in the sand in an effort to avoid dealing with the allegations made in a complaint altogether. The important fact to note is that failing to respond to a lawful inquiry from Bar Counsel is a violation of Rule 8.1 (b).[3] So, even if Bar Counsel is not able to make any findings of a violation of the Maryland Lawyers Rules of Professional Conduct (“the Rules”) in the initial bar complaint, Bar Counsel may pursue and prosecute an attorney for violating Rule 8.1(b).  No matter how distasteful the prospect of being subject to a bar complaint is, every attorney has an affirmative duty under the Rules to respond to requests for information from bar counsel authorities.

4)      Answer the allegations honestly and concisely. An attorney should provide a comprehensive and fair explanation of the facts and circumstances surrounding the allegations made in the complaint. Providing a full picture or history of the representation will assist Bar Counsel render a disposition; however, an attorney should be judicious.  Do not do “lawyer speak.” Providing a thirty (30) page response to a complaint and failing to actually address the allegations of misconduct made in the initial complaint may raise concern.

5)      An attorney should provide the documents Bar Counsel requests but should also provide relevant documents as exhibits if they corroborate an attorney’s version of events. For example, supplying Bar Counsel with a copy of a key pleading of an issue that has already been addressed by a tribunal is helpful. Taking this pro-active step saves time in the investigation process.

6)      Be diligent and comprehensive. An attorney should take the time to explain relevant areas of law as it relates to the underlying legal matter. It is important for an attorney to not assume that Bar Counsel is familiar with every practice area. Providing Bar Counsel with a copy of the applicable rule or statute that the attorney has relied on in the underlying matter is invaluable and can assist Bar Counsel in determining the validity of the bar counsel complaint.

7)      Hire counsel, if necessary.  This is a determination that can only be made by an attorney but there are benefits to hiring representation. Respondent’s counsels are usually more familiar with the attorney disciplinary process and can help navigate the system.

8)      Resolution. If the attorney can and wishes to resolve the issue with his/her client, they are welcome to while the disciplinary matter continues.  Sometimes the issue occurs as a result of a misunderstanding, or sometimes the client wants their client file returned or requests a refund. Bar Counsel will not resolve fee disputes but usually will refer the parties to a voluntary fee dispute committee for further review.

An attorney’s cooperation to a Bar Counsel investigation will contribute to a resolution of the matter in a manner which safeguards the rights of the public and protects attorneys from unfounded complaints.

[1] Bar Counsel has many sources for bar complaints. While the majority of them come from clients, Bar Counsel also receives complaints from the courts, opposing counsel, family members, employees, neighbors, and acquaintances of lawyers. Additionally, it is also common for bar counsel authorities to initiate investigations when Bar Counsel learns information either through the media or through litigation records that would support a finding that an attorney has violated the ethical rules.

[2] The 36th Annual Report of the Attorney Grievance Commission (July 1, 2010 through June 30, 2011) states that that 1,880 bar counsel complaints were filed.

[3] An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:  [f]ail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6.

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