We as attorneys have a duty of care to adhere to the Rules of Professional Conduct. What happens if someone accuses you of violating these rules? While this article is not intended to replace legal advice, it will outline some important steps that an attorney should take in the face of an ethics complaint.
TAKE A DEEP BATH
Pause. Take a deep breath. This could happen to anyone. It does not necessarily mean you will be disciplined just because someone has filed a formal complaint.
Many professional responsibility courses in law school focus on unethical and blatantly illegal situations. Do you have to sleep with your client? No. No. No. No. It is a resounding yes.
Ethical issues aren’t always so simple. What should you do if you feel that the interests of your clients are not aligned? How can you represent a client with declining capacity? These types of issues are not to be feared.
Even if everything is perfect, there are still ethics complaints. Maybe a client is dissatisfied with your ethical representation. You could be investigated if they file a complaint.
There is no reason to panic despite all this. Most ethics investigations end without any discipline or private discipline. Private discipline is the absence of a public record or outcome. Only the complainant, respondent and Office of Lawyers Professional Responsibility are aware of private discipline. Private discipline is still discipline but it does not usually become public.
CONSULT YOUR INSURED POLICY AND YOUR ATTORNEY
After you have gotten over the shock, it is time to consult your professional liability insurance policy. This is crucial for many reasons.
Many policies require that attorneys notify their carrier whenever they learn of facts or circumstances that could result in a malpractice case. Many policies provide assistance to attorneys who are facing ethics complaints. This often comes in the form legal representation.
You might be wondering, “Why should I hire an lawyer if I’m an attorney?” This is because, according to the old saying, “a lawyer that represents themselves has a foolfor a client.” This is especially true when it comes down to ethics investigations.
An ethics investigation involves the questioning of an attorney’s conduct. How do we react when our conduct is being questioned? We get defensive. It can be difficult to keep your eyes open and present the facts without becoming emotional.
A neutral third party can represent you in ways you might not be able to. Some attorneys devote their entire practice to professional liability law. A knowledgeable person can help you to manage stress in stressful situations. Even if you don’t have insurance that covers legal representation, it is worth having an expert ethics attorney guide you.
REVIEW THE COMPLAINT
It doesn’t matter if you are represented or not, it is important to read and understand the complaint. You have the opportunity to respond to the ethics investigation and to tell your side of it. You will be better equipped to respond to the investigation by understanding the identity of the complainant and the allegations they make.
REVIEW YOUR DOCUMENTATION
Once you have identified the complainant, and all the allegations, gather any documentation. These documents could include correspondence with the complainant and notes taken during meetings. You may be able to find the details you need by looking at the nature of the complaint.
Situation 1: The complainant is a former client. They claim that you failed to respond to their emails promptly. This is where you should focus your attention on the communication you had with your client. You should have a detailed understanding of the times they asked questions and when you responded. You may want to establish a timeline for communication so that the investigator has this information at their fingertips.
Situation 2: Assume that the complainant is opposing counsel and alleges you were dishonest with your representations to court. It will be less helpful to create a detailed timeline of client communications in this situation than it was in the first. Instead, review the false representations made to the court and locate documentation supporting your representation.
These are the documents that you should share with your lawyer if you are being represented by counsel. These are the documents that you should use to respond to the complaint if you are not represented.
COOPERATE THE INVESTIGATION
The most important thing when you are faced with an investigation into ethics is to cooperate. It means that you should be open and timely with your responses. An attorney has two weeks to respond in writing to a notice of investigation. Even if the allegations seem unfounded, you must respond.
Rule 8.1(b) states that an attorney cannot “knowingly fail” to respond to a lawful request for information from an admissions authority or disciplinary authority. In other words, even though the allegations are false, you could still be disciplined if you do not adequately participate in an investigation.
It can be intimidating to participate in an ethics investigation. You don’t have to do this alone, it is important to keep in mind. You should consult an ethics attorney if you find yourself in such a situation and take the appropriate steps to protect your licence.
The post Don’t Panic: First Steps to Make if You’re Faced with an Ethics Complaint originally appeared on Attorney at Law Magazine.