Attorneys are licensed to practice law by the Highest Court of the state. When they are sworn-in, all lawyers take an oath to uphold the laws of the United States, the laws of their state and to be governed by the Rules of Professional Conduct promulgated by their state's Highest Court.
Most lawyers are reputable. They are trained to utilize every available legal avenue to resolve a client's case. Most lawyers value their good reputation.
The American legal system and the attorney-client relationship are founded on trust. Only a few attorneys ever betray that trust. When a breach occurs, not only are the individual clients hurt by the attorney's misconduct, but the entire legal system is damaged.
Every state has a set of Rules of Professional Conduct that govern the conduct of attorneys. These rules establish a very high standard for lawyers. When you file a complaint against your lawyer, ask your state's disciplinary body will to provide you with a copy of the Rules of Professional Conduct and for information explaining the complaint process in your state. Read the ethical and disciplinary rules adopted by the judicial system in your state carefully and completely. (Click here for your state's disciplinary body).
Each state's disciplinary body knows that even if only a few lawyers engage in misconduct, it is the responsibility of the state's disciplinary body to resolve it in a manner that maintains the public's trust and confidence in the judicial system. Each state's disciplinary body wants to do all it can to resolve every dispute that may arise between an attorney and his or her client.
Invariably, in any business enterprise, consumer problems can arise. It is no different for lawyers and their clients.
Nearly all lawyers are competent and respectable people who uphold their legal and professional obligations. However, lawyers sometimes make mistakes, and some lawyers are more competent than others.
In some cases, the problem between an attorney and his or her client does not constitute a violation of ethical rules. A lawyer may be disciplined only if the provisions of the Rules of Professional Conduct have been violated. A lawyer who violates these standards of conduct may be disciplined and given penalties ranging from a private reprimand to permanent loss of the privilege to practice law.
Some problems between lawyers and clients are the result of misunderstandings or a lack of communication. If you have a problem with your lawyer, it is very important to discuss your concerns with your lawyer. As soon as you discover that a problem exists, call your lawyer and tell him or her that you believe something is wrong with your attorney-client relationship or with the work that being done is being done in your case. Your lawyer may not be aware that you have a problem with his or her handling of your case. Insist on a face-to-face meeting. Often, after an open discussion, you may be able to reach a mutually acceptable solution.
If your lawyer is unwilling to talk to you, write a letter explaining the problem and ask for a response from your lawyer. If your lawyer does not respond, consider hiring another lawyer. You have a right to expect competent representation from your attorney. If you are dissatisfied, you may fire the attorney. Ask that your files be sent to your new lawyer. Remember that the reason you terminated your attorney's services may not be grounds for disciplining your attorney.
There are situations that you may find very annoying which do not constitute misconduct. For example, your lawyer's failure to fully explain what is going to happen in your case, or your lawyer's failure to respond to your telephone calls inquiring about the progress of your case. While such actions usually do not constitute misconduct, your state's disciplinary body is anxious to see such conduct corrected, and will generally suggest steps to your lawyer which he or she must take to correct that conduct and to prevent its recurrence.
A lawyer may lose the trust and confidence of a client for various reasons. Your case's outcome does not mean your lawyer violated the ethical standards. Since litigation is adversarial, by definition, many legal matters will not be resolved in a manner favorable to the losing party. Although you may be dissatisfied with the outcome of your case, your complaint may not constitute grounds for disciplinary action. While your lawyer assists you in presenting your case in its best light, the final decision rests with the jury or judge and is not controlled by your lawyer. If you do not agree with the decision, an appeal to a higher court will more likely be able to protect your interests than filing a complaint against your lawyer.
A mistake or an error in judgment is not unethical conduct. An honest disagreement about how a case should be handled or should have been handled does not constitute misconduct. Neither does a mistake. Lawyers are human. Sometimes they make mistakes just like everyone else. If the mistake causes a loss, you may be able to recover the loss by filing a civil claim against your lawyer.
The Highest Court of each state and its disciplinary body recognize that action should be taken to prevent unethical conduct and to restore confidence and trust when misconduct occurs. The purpose of lawyer discipline is to protect the public from future acts of professional misconduct and to establish and maintain high ethical standards in the legal profession. The lawyer discipline system is designed to protect the public by disciplining a lawyer if he or she violated the Rules of Professional Conduct. The purpose of the disciplinary procedure is to determine whether an ethical violation has occurred and, if so, what discipline should be imposed upon the lawyer. The disciplinary process is not designed to recover funds from lawyers or to settle fee disputes.
The procedures established by the Highest Court of each state and its disciplinary body are designed to provide a thorough review of your allegations of misconduct and to resolve the matter in a way that is fair to you and to the lawyer involved.
A formal complaint of unprofessional conduct against a lawyer is a serious matter. A lawyer accused of misconduct is adversely impacted whether or not he or she is ultimately found to have violated the Rules of Professional Conduct. More than a mere claim of alleged misconduct is needed to justify disciplinary penalties. It takes evidence--legal proof. The same legal proof that is required before any member of our society is punished for wrongdoing.
The complaint procedure for reporting and reviewing the misconduct of an attorney varies in each state. After your complaint is received and docketed by the disciplinary body, your complaint will be reviewed by staff personnel to determine whether or not your complaint alleges a matter that is appropriate for the disciplinary body to handle. The disciplinary body reviewing your complaint will read all of the documents you submit with your complaint and decide whether it is appropriate for the disciplinary process to continue. If so, your complaint will be sent to your attorney with a request that he or she respond to your complaint in writing. Your attorney's written response will be sent to you for your written reply. Many states have a statutory provision protecting people who file a disciplinary complaint in "good faith" from a lawsuit by the attorney against whom the complaint is filed.
A complaint of professional misconduct against a lawyer immediately puts into action the investigative and adjudicative processes of the state's disciplinary body. Once a complaint has been filed, it cannot be withdrawn. The decision to close the file is then in the hands of the disciplinary body.
Filing an ethics complaint with the disciplinary body that monitors the conduct of your lawyer is the least known and most powerful remedy you have to correct and prevent lawyer misconduct. The disciplinary body in your state can ultimately have your lawyer's license taken away if your complaint is serious enough, or if there is a history of other complaints about unethical conduct by your attorney.
However, after an initial review, only certain specific allegations of lawyer misconduct are likely to be prosecuted by the disciplinary body in your state. For example, theft of client funds and allegations of sexual contact by an attorney are appropriate allegations for the disciplinary process. While problems such as fee disputes, claims of negligence, and lawyer deceit, are not suitable for the grievance process.
Lawyer discipline may take one of several forms, depending on the circumstances and severity of the offense. Discipline may range from a private reprimand by the disciplinary body, public censure, suspension from practice for a specified time, probation, or disbarment by the Highest Court. Lawyers who are found guilty of serious misconduct, such as theft of client funds, may be suspended or disbarred from practicing law. Other types of misconduct, such as not communicating with clients or failing to diligently pursue a case, may result in a censure or reprimand.
The most frequent discipline handed out to an attorney is a private letter of reprimand. Even though the letter of reprimand is confidential, it is placed in your attorney's permanent record with the disciplinary body. The letter of reprimand and your complaint remain in his or her file as long as your attorney continues to practice law. Suspension or disbarment are reserved for very serious charges and would only be imposed after a hearing in the matter in which you were required to testify.
The state's disciplinary body cannot investigate complaints of malpractice, decide legal questions or give legal advice. Usually the disciplinary body has no jurisdiction over issues pending in court or situations occurring in a lawyer's personal life, such as disagreements with neighbors, creditors or spouses.
Malpractice and attorney misconduct are not necessarily the same. An attorney can commit legal malpractice and not be in violation of the disciplinary rules, or an attorney can be in violation of the disciplinary rules without having committed legal malpractice. You should consult with a reputable attorney to help you decide if there are remedies other than filing a grievance.
The disciplinary process is very serious business for your attorney. However, your state's disciplinary body does not have authority to return money taken by your attorney or obtain compensation for your damages.
You should also be aware that lawyers are reviewing the conduct of lawyers. They can be very protective of other lawyers, especially if they think your complaint is vindictive, or frivolous. In an effort to monitor attorney conduct from the perspective of the general public, many states are now utilizing laypeople to review the conduct of lawyers.
In most states, lawyer discipline is a confidential process, which is designed to protect the reputation of attorneys. A number of states now permit public disclosure of an attorney complaint at the hearing stage. However, some states (for example, Oregon) are beginning to allow the pubic to have notice of a complaint against an attorney prior to a public hearing in the matter, at times, as soon as the matter is filed with the disciplinary body.
Do not file a complaint to force an attorney to take action on a case or to gain an advantage in dealing with an attorney. There are rules that prohibit attorneys from reporting other attorneys solely for these reasons. A grievance is not an action to take in place of talking with your attorney. The grievance system is adversarial and is not a forum for attorney-client communication. Problems of this nature should be handled outside of the attorney grievance system.
Creating a paper trail is important. If you are having problems talking with your attorney, bring your concerns to your attorney in writing. It is extremely important to document your efforts to contact a lawyer who does not keep you informed of the progress of your case and will not return phone calls. If your lawyer is not handling your case in the manner you desire, send your lawyer letters confirming your discussions about your case. In your letters state clearly your attorney's promises and commitments regarding further action on your behalf. Lawyers understand that paper records are hard to dispute. You will get more attention and respect if you create a written record of your dealings with your lawyer.
What your write and how you write it are also important. If the effort to resolve the problem with the lawyer is not successful, judges and jurors may read what your correspondence. Every letter has two goals. First, to inform your attorney of your intention to change the manner in which your case is being handled. Second, to make yourself look reasonable to judges and jurors who may read your letters in the future.
Many problems can be prevented if you know what to expect from your lawyer and how to deal with your lawyer.
SUGGESTIONS FOR AVOIDING PROBLEMS INCLUDE:
Have Realistic Expectations:
You may become dissatisfied with your lawyer because you have an unrealistic expectation about the outcome of your case. Ask your lawyer what you should expect. How long will the matter take? About how much will it cost? What are the unpredictable factors?
Often disputes occur because you and your lawyer have a different understanding about what the attorney fees will be in your case. GET A WRITTEN FEE AGREEMENT AND ASK FOR PROMPT BILLINGS.
Provide documentation and supporting information to your lawyer promptly. You have a right to expect that your lawyer will keep you informed and give you copies of important documents.
If your address or phone number change, let your lawyer know promptly. If you change your mind about pursuing your legal matter, tell your lawyer immediately.
Expect your lawyer to keep you informed of all developments in your case. If you are dissatisfied, let the lawyer know why. Write to confirm important understandings. Keep track of your telephone calls to your lawyer.
VIOLATIONS OF PROFESSIONAL RESPONSIBILITY:
Lawyers are expected to meet high standards. The standards for lawyers' professional responsibility established by the Highest Court in your state are contained in the Rules of Professional Conduct. These rules can be found in most libraries. If a lawyer violates these rules, the lawyer may be disciplined.
The following are examples of complaints handled by the disciplinary body:
Neglect and Delay
Lawyers are required to be reasonably prompt and to keep clients reasonably informed. Do you think your lawyer has been taking far too long with your legal matter? Write to the lawyer and ask for a written explanation. If you do not get a satisfactory reply, file a complaint.
Getting Your File Back
A client may switch lawyers for any reason. Changing lawyers may increase expense or delay, but it is the client's choice to make. If you want your file from your lawyer, call and ask for it. If you do not receive it, send a certified letter repeating the request. If you still do not receive your file, or the lawyer insists that you pay copying costs before you get it, file a complaint.
Money and Accounting
Lawyers handle money for clients, including receiving settlements or awards for their clients. When a lawyer handles client money, the lawyer must promptly and completely account for it. If there is any significant delay in receiving your money from your lawyer or in getting a complete accounting, file a complaint.
Conflicts of Interest
Sometimes lawyers represent more than one client in a matter. In other situations a lawyer may represent a client and at a later time be opposed to the former client. Sometimes the client may agree to the lawyer's work even though there is a conflict. If you believe that your lawyer is acting improperly in representing conflicting interests, file a complaint.
Lawyers are forbidden to make intentionally false statements, however, lawyers may represent their clients' interests aggressively. This may involve relying on the client's version of the facts. In lawsuits, most disputes about the facts are resolved by courts.
Disputes regarding legal fees are usually not investigated by the disciplinary body. The cost of legal services is generally left to an agreement between the lawyer and the client. Written fee agreements are strongly encouraged to avoid misunderstandings. Most routine fee disputes are best resolved outside of the disciplinary procedure. Fee arbitration is a relatively fast and simple way of resolving fee disputes. You and your lawyer may be able to reach an understanding. In a few instances, if a lawyer charges a clearly illegal or grossly excessive fee, discipline may be appropriate.
Lawyers, like any other professional, like anyone, at times make mistakes. A lawyer might handle a matter in a way that is inadequate but not unethical. If a client was damaged by a lawyer's negligence, you may have a malpractice claim against your lawyer. Most malpractice and inadequate performance matters are not appropriate for the disciplinary process.
Dissatisfaction with the quality of a lawyer9s advice or strategy
The disciplinary body in your state cannot regulate the quality of a lawyer9s advice or strategy in either civil or criminal cases, except for certain situations, such as missing filing deadlines, failing to file required documents or totally abandoning the case. If you believe your lawyer represented you poorly, in a civil case, you must file a civil malpractice action against your lawyer, or, in a criminal case, you need to file a petition for a writ of habeas corpus, to deal with your claims of ineffective assistance of counsel. These cases must be filed in the appropriate court of law. These are complex legal issues. To improve your chances of success in these cases, it is strongly recommended that you seek adequate legal counsel.
Generally, complaints that involve behavior of an attorney outside the practice of law, such as use of profanity, landlord-tenant disputes and debtor-creditor matters, are not appropriate for the disciplinary process. Serious matters, such as fraud and criminal offenses, are subject to discipline.
The Opponent's Lawyer
You can file a complaint against the other person's lawyer. However, it is important to understand our adversarial system of justice. Many complaints are filed against lawyers who are representing other people. This is especially common in the area of family law, where one spouse files a complaint against the lawyer of the other spouse. A lawyer must represent his or her client aggressively. Before filing a complaint against your opponent's lawyer, remember that it is an attorney's duty to represent his or her client vigorously and well. In the adversarial system each side presents a different version of the facts in the lawsuit, which can create hard feelings and ill will. You may not like what the lawyer is doing, particularly if it has a negative impact on you, but that does not necessarily make the conduct unethical. Only flagrant abuses will be disciplined, usually only after the court has ruled on the matter.
Complaints by Creditors
Your State's disciplinary body is not a collection agency. Complaints about a lawyer not paying his or her bills should be resolved in the civil courts. In extreme cases, disciplinary action may be taken, if a pattern of willfully unsatisfied and practice-related judgments, issuing checks on a closed account, or fraud can be proved.
Although some states are beginning to open the process of lawyer discipline to the public at an earlier stage, the fact remains that you will have a tough battle to prove a grievance against your lawyer. As with all professionals, attorneys protect other attorneys. Unless your lawyer has committed a serious breach of the Rules of Professional Conduct, an attorney's reputation is likely to be protected. A lawyer's statements about the facts will generally be given more credibility than yours.
More reform of the disciplinary review system is needed. All states need to open the secret disciplinary process to the public. All review systems need to involve a greater number of non-lawyers in the process. Until there is additional reform in the disciplinary process, you will probably not be satisfied with the outcome of your grievance. Nevertheless, file your complaint about all unethical conduct by any attorney. Even though the current system is inadequate, the attorney disciplinary system does maintain a record of all grievances that are filed. The mere fact of potential disciplinary action acts as a deterrent to future misconduct by questionable attorneys with other clients, which benefits the reputable attorneys and the public as a whole.
David E. Danda & Associates, LLC
P. O. Box 941334
Atlanta GA 31141-0334