Keep Calm and Carry On – What to Do With a Letter From Bar Counsel
Monday morning just got worse. You check your mail and, rather than finding a check from a client, you receive a letter directed to you from the Office of Bar Counsel (“Bar Counsel”) at the Board of Bar Overseers (“BBO”). Tempted to ignore it, or the opposite, to lose your cool? Don’t. Do not panic and set the letter on fire, and do not ignore it. Instead, take a deep breath and follow the steps below.
When a client, another attorney, or judge complains about the conduct of an attorney (the “Respondent”) to the BBO, the matter first goes to Bar Counsel. In bar disciplinary matters, the BBO acts like a court, while Bar Counsel is the prosecutor.
Bar Counsel typically begins the disciplinary process with an investigation and will send a letter to the Respondent that explains the nature of the complaint and asks for a response. While it seems that Bar Counsel letters only happen to “someone else,” BBO complaints can happen to anyone.
So what do you do if you receive the dreaded Bar Counsel letter?
First, consider that just because Bar Counsel has made an inquiry, that does not mean you are going to be disciplined. According to the most recent annual report from Bar Counsel, the office opened files for 732 attorneys in the fiscal year ending August 31, 2012. In the same fiscal year, the BBO sanctioned 132 lawyers, with 29 private admonitions and 103 instances of public discipline. Of that group, the BBO only disbarred 19, and imposed public reprimands upon 31. The BBO imposed some level of suspension upon most of the remaining lawyers. Meanwhile, Bar Counsel’s intake unit responded to 4,326 inquiries during that time. In other words, the vast majority of disciplinary complaints raised by clients, opposing parties, or other attorneys are meritless and do not result in any discipline at all.
Second, do not ignore Bar Counsel. Even if it appears that the complaint is wholly meritless, once Bar Counsel has started an investigation, you cannot maintain your silence and hope that the problem takes care of itself. You cannot stonewall Bar Counsel, because lawyers have an ethical obligation to “cooperate with the Bar Counsel or the Board of Bar Overseers” under Mass. R. Prof. C. 8.4(g). Many lawyers seem to ignore letters from Bar Counsel in the hope that the problem will go away. It will not. If you fail to cooperate with the investigation, or if you ignore Bar Counsel’s letters, you will make matters worse with Bar Counsel and before the BBO.
Third, consult with counsel or retain counsel to assist you with the BBO. The adage that a lawyer who represents himself has a fool for a client holds true in BBO matters. The most difficult aspect of handling a BBO matter yourself is that it is very hard to be objective. While many inquiries can be handled by a straightforward response – a copy of a cancelled check evidencing an alleged missing payment for example – what appears obvious to you may not be as obvious to Bar Counsel or the BBO. At the very least, you should talk about the matter with another attorney – even a partner or colleague – to evaluate the seriousness of the complaint against you and to formulate the appropriate response. The default approach should be to retain outside counsel who has experience handling BBO matters (preferably someone who has been a BBO Hearing Officer or a member of the BBO itself) and who can provide you with an objective evaluation of the situation.
Fourth, check your legal malpractice policy. For serious BBO matters, the cost of defense can add up quickly, so you should check for coverage under your professional liability policy. Most policies will reimburse you for expenses incurred in defending against a bar disciplinary matter. This coverage is different from malpractice coverage in that it does not provide for indemnity and you control the defense by retaining and paying counsel that you choose and then seeking reimbursement. By contrast, under ordinary malpractice coverage, the insurer provides the defense directly and generally selects defense counsel from a list of attorneys that the insurer uses regularly. Note that some policies will only provide reimbursement if there is no discipline imposed as a result of the proceedings.
Finally, know that often you and your counsel can resolve matters with Bar Counsel. A clear explanation of the facts and law from your perspective may convince Bar Counsel to drop the matter, or lead to a settlement. Under the bar disciplinary rules, Bar Counsel can decline to act on a complaint in its discretion if the allegations are determined, “to be frivolous, to fall outside the Board’s jurisdiction, or to involve conduct that does not warrant further action.” SJC Rule 4:01, § 7(1). If you settle, you may have to admit to wrongdoing, but you will have some control over your own destiny, and the disciplinary process will be shortened.
Receiving a letter from Bar Counsel can be alarming, but the key to an effective response is to Keep Calm and Carry On, and most importantly, consult with another attorney.