Responding to a Bar Complaint
| Publication year | 2012 |
| Pages | 0137 |
By Robert P. MacKenzie, III
A good reputation is the most important asset a lawyer can have. When a complaint is made to the Alabama State Bar (bar), that reputation is subject to challenge. Whether the complaint is based upon some statutory provision, i.e., Ala. Code § 34-3-1, et seq., the Alabama Rules of Professional Conduct (ARPC) or Alabama Rules of Disciplinary Procedure (ARDP), an investigation will follow. This can lead not only to embarrassment and stress, but also legal fees, suspension and, in some cases, disbarment or even imprisonment. Fortunately, most lawyers enjoy a practice away from such experiences. When a complaint is filed and an investigation begins, however, the consequences are real. Every attorney needs to understand how to respond and should consider the following nine points.
Respond
An investigation may be initiated for any reason and upon a complaint by any person, not just a client, or by the bar's own motion. (ARDP 3(c); 4(b)(1)). The complaint may even be filed anonymously. Ex parte Alabama State Bar, 3 So. 3d 178 (Ala. 2008). No matter how frivolous a complaint may be perceived, a response must be made in a timely and appropriate fashion. To ignore an inquiry by the bar is simply to invite more problems. In fact, the failure to respond is, in and of itself, a ground for discipline. (ARDP 2(e); ARPC 8.1(b)).
Often, a complaint is filed without the attorney's knowledge. While lawyers should be mindful and absolutely respectful of the bar's authority, due process provides you with certain rights. Ex parte Case, 925 So. 2d 956 (Ala. 2005). The requirements of due process include adequate notice and a reasonable opportunity to respond. Ala. Code § 34-3-83.
Practically speaking, this means you should first ask for a copy of any written complaint or petition. You should have an understanding of the scope of the complaint. Second, you should allow yourself a reasonable opportunity to respond to the bar's inquiry. This may mean consulting another lawyer. In communicating with the bar representatives, it is important to convey that your decision to seek a lawyer's advice is not a refusal to respond, but only an effort to protect your rights. Be mindful that seeking such legal counsel does not allow an open-ended time to respond. Thus, if the bar requests information by a time certain, you should reply. Failure to timely comply may lead to the bar's exercising its right to obtain an emergency court order in its favor. (ARDP 20). It is imperative to understand that the complaint is not going to be dismissed based upon your inaction.
Equally important to the timing of your response is the manner. There is no need to "kill the messenger." Asam v. Alabama State Bar, 675 So. 2d 866 (Ala. 1996). Experience shows that the bar's request for information is not reflective of some prejudgment already formed against the lawyer. Rather, the investigation is driven to secure information to fairly evaluate the complaint. Usually, an investigation will precede an emergency suspension or the filing of formal charges. The chance to convey your position to the bar is critical to resolving the problem at the beginning. The investigation may lead the Disciplinary Commission to recommend no formal charges be filed. (ARDP 12(c)(1)). At all times, you should demonstrate a willingness to cooperate and resolve the complaint. Incivility and arrogance simply have no place in a response to a bar problem. Remember, the same individuals who investigate the complaint will ultimately have a tremendous influence over the resolution.
Do Not Underestimate the Bar's Authority
The authority of the bar is prescribed by the Alabama Legislature, the ARPC and the ARDP. Though subject to appeal, those powers are enormous. Ala. Code § 34-3-80. The bar's jurisdiction over a lawyer extends to misconduct outside the attorney-client relationship. (ARDP 1(a)). As such, it is not defense to a charge of misconduct that the act was somehow separate and distinct from the provision of legal services. Ala. Code § 34-3-86; § 34-3-87.
In addressing an attorney's exposure, ARPC 8.4 broadly defines professional misconduct to include "dishonesty, fraud, deceit, or misrepresentation, . . . or any other conduct that adversely reflects on his fitness to practice law." Committee Comments to ARPC 8.4 cite specific examples of abuse of offices outside the practice of law such as acting as a trustee, executor, administrator, guardian, agent, officer, or manager. These examples are not exclusive. Questions have arisen in certain cases where the complaint is directed toward a collateral entity such as a title company which is owned or managed by the attorney. While this entity may be separate from the law firm, it is the attorney's conduct which is at issue. Alabama State Bar v. Quinn, 926 So. 2d 1018 (Ala. 2005). As such, any act of wrongdoing by a person admitted to the practice of law in...
To continue reading
Request your trial