The Purpose of the Office of the Chief Disciplinary Counsel
We may believe that the Assistant Disciplinary Counsel and the Investigators that work with them are your friend and advocate, that all you need to do is to show the State Bar what you believe to be the truth, and the truth will set you free. Please understand that this division of the State Bar is all about prosecution. Its not the CLE division. Its not the dues division. Its not the advertising division. Its not the support division. It’s the enforcement arm of the State Bar.
Traps for the unwary
You may try explaining one thing about a Rule violation to the State Bar investigator or the State Bar attorney and wind up incriminating yourself with another Rule violation. Keep this in mind when you respond to the inquiries from the State Bar, even though they may seem friendly and helpful when they contact with you.
You may try to personally respond to an inquiry by the State Bar by proving that you made the payment or the refund to the client by sending the State Bar a copy of the check. You rest comfortably knowing that you indeed proved the payment. However, the check that you provided to the client and copied to the State Bar was drawn on the wrong account, i.e. the IOLTA Account instead of the Operating Account, or vice versa. Even though you proved that you gave the payment to the client, the State Bar may now go after you for: co-mingling funds (property); withholding client’s property; and several other rule violations.
You may try to personally respond to an inquiry by the State Bar wherein the client alleges you neglected his case. You tell the State Bar in your response all of the great things you did for the client. You write that you would provide copies to the State Bar if you could just locate “your” file. You may have forgotten that the file is not “your” file, even though you did all of the work that was placed into the file. The reason the file is not your file is because you are the agent of the client. The client is the principal. You work for the principal as his agent. The money that the principal gave to you for the work that you did for him was to create the principal’s file. The file belongs to the client and now you have just admitted that you failed to maintain the safekeeping of the client’s property, you lost the client’s file, which is another rule violation, in and of itself.
The worst thing to do when the State Bar sends you an inquiry is to act offended, indignant, and spiteful of the client, the State Bar and the entire grievance process. You write that the client is a stupid idiot and knows nothing of what she is alleging, even though this stupid idiot was smart enough to hire you and pay you a handsome fee. You belittle the response by saying that the client or the State Bar lacks standing to bring such a frivolous and unfounded complaint. Watch out, all you are doing in this situation is adding lighter fluid to an otherwise smoking fire.
The State Bar tells you that a complaint has been filed against you and you don’t recognize the complainant. Can it be, you don’t know the person and the person was not your client. You are certain that the State Bar made a huge mistake. They can’t do that, can they? It doesn’t matter, anyone can bring a complaint against you, including the State Bar. In fact, the State Bar can bring an action against you without anyone ever filing a formal complaint.
The reason to hire a true advocate when dealing with a grievance
This is exactly why we say that you should not respond to the State Bar on your own. Equally as bad, you should not respond to the State Bar with the help of your “friend,” another attorney, because your friend will only present your characterization of the facts. Besides, friends don’t have any better idea on how to deal with the State Bar than you do.
You must understand that the entire environment (the grievance process from start to finish) is not friendly. Instead, its dangerous, being full of traps and pitfalls.
Immediately hire a person that regularly deals with grievance defense from the first day that you get the notice of the State Bar’s inquiry.