Bar Counsel: 7 Tips for Dealing With Bar Counsel Complaints

From Washington Lawyer, December 2012
By Dolores Dorsainvil

For many attorneys, coming across an envelope with the return address marked “Office of Bar Counsel” 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 as a personal attack on their credibility and professionalism. Whatever the feeling, and however the complaint arose,[1] with hundreds of Bar Counsel complaints 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 seven simple tips to guide attorneys in responding to a Bar Counsel inquiry should one ever become subject to such a complaint:

1. Think. Before penning an emotional response to Bar Counsel, take time to think about the legal matter, the history of the case, and the client who filed the complaint. This will aid an attorney in focusing on the issues involved in the complaint and may give him or her time to provide a response based on facts rather than emotions. An attorney may even want to review the file in its entirety to make sure he or she is able to recall every detail about the underlying legal matter.

2. Be timely. Request an extension, if needed. In its cover letter accompanying the 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, he or she may wish to request an extension. Our office usually will grant an initial reasonable request for an extension. The attorney should confirm such a courtesy in writing. If a circumstance exists that requires a lengthy response period—as we all know, illnesses, deaths, vacations, business or personal matters happen—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 who, 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. 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 D.C. Rules of Professional Conduct in the initial complaint, our office may pursue and prosecute an attorney for violating Rule 8.1(b). No matter how distasteful the prospect is of being subject to a complaint, 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 in rendering a disposition; however, an attorney should be judicious. Providing a 30–page response while failing to actually address the allegations of misconduct may raise concerns.

5. Provide documents, and then some. An attorney should provide the documents our office requests, but he or she also should provide relevant documents as exhibits to the response if those documents corroborate an attorney’s version of events. For example, supplying Bar Counsel with a copy of a key pleading of an issue that already has been addressed by a tribunal is extremely helpful. Taking this proactive 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 they relate to the underlying legal matter. It is important for an attorney not to 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 upon in the underlying matter is invaluable and can assist our office in determining the validity of the 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 usually are more familiar with the attorney disciplinary process and can help to navigate the system.

Overall, an attorney’s cooperation with a Bar Counsel investigation will contribute to a resolution in a manner that safeguards the rights of the public and protects attorneys from unfounded complaints.

Dolores Dorsainvil is a senior staff attorney with the Office of Bar Counsel.

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Notes

[1] Bar Counsel receives complaints from many sources. While the majority comes from clients, Bar Counsel also receives complaints from the courts and opposing counsel as well as an attorney’s family members, employees, neighbors, and other acquaintances. 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] In 2011 the Office of Bar Counsel reported that 1,121 complaints were filed.

[3] An applicant for admission 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 lawyer or applicant to have arisen in the matter, or knowingly fail to respond reasonably 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.

Disciplinary Actions Taken by the District of Columbia Court of Appeals

Original Matters

IN RE RICHARD A. SAMAD. Bar No. 462384. September 5, 2012. The D.C. Court of Appeals suspended Samad for three years with fitness and a requirement that he make restitution to one of his clients in the amount of $2,500, plus interest at the legal rate of six percent per annum from the date when the client paid the fee, as conditions of reinstatement. Samad committed 40 violations of the rules in connection with six cases. Specifically, in the first case, while representing a client charged with a felony drug violation, Samad violated: (1) Rules 1.1(a) and 1.1(b) by failing to investigate or prepare for the client’s trial; (2) Rule 1.3(a) by not visiting the scene or filing motions to suppress the client’s confession and other evidence; (3) Rule 1.4(b) by not keeping the client informed about the status of his case; (4) Rule 1.16(d) by failing to return the client’s fee; (5) Rules 3.3(a)(1) and 8.4(c) by falsely telling the presiding judge that he was unavailable because he was in trial, when in fact the trial was over and the case was before the jury; and (6) Rule 8.4(d) by insinuating to prosecution counsel that he would be in trial in another case, failing to put his name on the conflicts list, arriving late to court, and falsely telling the court that he was in another trial.

In the second case, while representing a client in a criminal matter, Samad violated Rules 3.4(c) and 8.4(d) by failing to appear in the presiding judge’s court at the scheduled hour to begin jury selection.

In the third case, while representing a client to obtain a sentence reduction, Samad violated: (1) Rules 1.1(a), 1.3(a), 1.3(b)(1), 1.3(c), and 1.4(a) by not filing a motion to reduce the client’s sentence in a timely manner, by not taking any steps to preserve his client’s procedural rights, and by not taking his client’s telephone calls or otherwise keeping him informed of the status of the matter; (2) Rule 1.4(b) by not advising the client that he would not file the motion to reduce sentence unless the client paid the remainder of his fee and an additional $300; and (3) Rule 1.16(d) by not explaining the limitations of his retainer agreement and by not advising the client or the client’s family that he would not continue to represent the client unless his full fee was paid.

In the fourth case, while representing a client in custody without bond on felony charges, Samad violated: (1) Rules 1.1(a) and 1.1(b) by failing to appear at the second and third status conferences; (2) Rules 1.3(a), 1.3(b)(1), and 1.3(b)(2) by abandoning the client and by failing to attend two scheduled court hearings while he was still counsel of record and before replacement counsel had entered an appearance; (3) Rule 1.4(a) by not keeping the client informed as to the status of his matter; (4) Rule 1.4(b) by not advising the client that he was terminating the representation; (5) Rule 1.16(d) by not taking reasonable steps to protect the client’s interests after he terminated his representation; and (6) Rule 8.4(d) by not advising the client that he had terminated the representation.

In the fifth case, while representing a client in an immigration matter, Samad violated: (1) Rules 1.1(a) and 1.1(b) by failing to explore alternatives to the H-1B visa that might permit the client to remain in the country; (2) Rules 1.3(a) and 1.3(c) by failing to file the necessary papers to protect the client’s ability to remain in the country and by failing to keep her informed of developments; (3) Rule 1.4(a) by not keeping the client informed of the status of her matters and by not taking or returning her telephone calls; and (4) Rule 1.4(b) by not informing the client that there was a quota associated with H-1B visas.

In the sixth case, while representing a client who at 16 years of age was arrested and charged with armed carjacking, Samad violated: (1) Rules 1.1(a) and 1.1(b) by failing to investigate a complicated case in which his juvenile client was facing trial as an adult and a significant period of incarceration if convicted; (2) Rules 1.3(a) and 1.3(b)(1) by not adequately investigating the alleged conduct, and by not fully informing the client of the government’s plea offer and by refusing to negotiate a comprehensive plea offer with the government; (3) Rules 3.3(a)(1) and 8.4(c) by “knowingly misrepresent[ing] to Judge Bartnoff the status of the client’s matter by failing to respond to Judge Bartnoff’s inquiry with complete information regarding his obligations in Judge Cushenberry’s court on the morning that he was to start a civil trial;” (4) Rule 3.4(c) by deliberately and knowingly disregarding court rules and the judge’s order when he failed to appear before Judge Cushenberry and commenced a civil trial before Judge Bartnoff; and (5) Rule 8.4(d) by not being prepared for the client’s trial. Rules 1.1(a), 1.1(b), 1.3(a), 1.3(b)(1), 1.3(b)(2), 1.3(c), 1.4(a), 1.4(b), 1.16(d), 3.3(a)(1), 3.4(c), 8.4(c), and 8.4(d).

IN RE ALBERT R. ZARATE. Bar No. 444609. September 27, 2012. The D.C. Court of Appeals accepted Zarate’s petition for negotiated discipline and suspended him from the practice of law for 90 days, nunc pro tunc to December 30, 2010. Zarate entered a guilty plea to petit larceny, a misdemeanor, in state court in Virginia.

Interim Suspensions Issued by the District of Columbia Court of Appeals

IN RE CHARLES F. DAUM. Bar No. 952481. September 5, 2012. Daum was suspended on an interim basis based upon his conviction of serious crimes in the U.S. District Court for the District of Columbia.

IN RE RICHARD L. LANCIANESE. Bar No. 464879. September 28, 2012. Lancianese was suspended on an interim basis based upon discipline imposed in West Virginia.

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The Office of Disciplinary Counsel compiled the foregoing summaries of disciplinary actions. Informal Admonitions issued by Disciplinary Counsel and Reports and Recommendations issued by the Board on Professional Responsibility are posted at www.dcattorneydiscipline.org. Most board recommendations as to discipline are not final until considered by the court. Court opinions are printed in the Atlantic Reporter and also are available online for decisions issued since August 1998. To obtain a copy of a recent slip opinion, visit www.dccourts.gov/internet/opinionlocator.jsf.