One of the most terrifying things an attorney can face in their career is an allegation that they have somehow breached their ethical duties or committed malpractice.
Nonetheless, even the most highly-qualified, diligent, and ethically-minded attorneys can face these accusations. That’s why it is extremely important for every California attorney to understand the state’s disciplinary system.
In this article, we’ve compiled some of the most important things for you to know about California disciplinary proceedings. From statistics regarding attorney complaints, to the sources of those complaints, to the processes and procedures that follow a complaint, this article is aimed at getting you up to speed on what you’ll face if an ethical charge is levied against you or your practice.
Statistics regarding attorney complaints in California
Before we dive into the disciplinary system, let’s first take a glance at the State Bar itself.
The State of California has roughly 200,000 active attorneys practicing within its borders.
Apparently, many more people wish they were able to practice. According to the State Bar’s website, the agency “opened 15,715 cases against California attorneys and non-attorneys holding themselves out fraudulently as licensee” in 2021 alone.
Other misconduct complaints often allege things like:
- Failure to perform with competence
- Lack of reasonable communication
- Inappropriate termination of the attorney-client relationship
- Conflicts of interest
- Misuse of client trust accounts
While these other violations appear to be less common, they are taken no less seriously by the Bar.
Last year, it filed notices of disciplinary charges in State Bar Court against 133 attorneys, recommended license suspensions for 159, and recommended disbarment for 85 attorneys. The bar also reimbursed roughly $5.7 million to 291 victims of attorney misconduct.
This is obviously very serious business. So, how do these complaints come about?
How are attorney disciplinary complaints initiated?
Attorneys may be surprised to learn that misconduct complaints can come from a variety of sources.
Sometimes they come from clients who didn’t like the outcome of their case.
Other times, ethical complaints come from opposing counsel or the courts.
In California, complaints about attorneys can even be made anonymously.
The State Bar website offers free forms (in multiple languages) for initiating Attorney Misconduct Complaints and Unauthorized Practice of Law Complaints. The site even offers links for judicial officers to make discipline referrals against attorneys.
In other words, it is not hard for someone to levy an initial complaint against a California lawyer.
What does the State Bar do when it receives a misconduct complaint?
Upon receipt of a complaint, the State Bar notifies the relevant attorney of the complaint (except in the event of an anonymous complaint).
State Bar attorneys then spend the next three weeks to two months reviewing the consumer complaint. During this time, the complainant may be asked for additional information to substantiate their allegations.
In most cases, both the attorney and the consumer will be notified if the allegations warrant further investigation. In those cases, the State Bar will appoint an attorney and an investigator to thoroughly vet the allegations.
If the investigation reveals no misconduct, the Bar will close the consumer complaint.
On the other hand, if the investigation confirms misconduct, the State Bar will attempt to resolve the matter by proposing a settlement which includes an alternative to discipline.
Note that these settlements are not “get out of jail free” cards. In the most serious cases, they can still recommend license suspension or disbarment, yet save the parties from a disciplinary proceeding in State Bar Court (which becomes a matter of public record).
In cases where no settlement is reached, charges are filed against the attorney in State Bar Court. These are public proceedings that can be followed by the press, opponents, and consumers.
If the State Bar Court determines that suspension or disbarment are warranted, the case is referred to the California Supreme Court for review and approval. If not, the State Bar Court can close the case with no further action required.
Importantly, either the State Bar or the attorney can initiate an appeal of the decision.
What to do if you learn a complaint has been filed against you
Simply put, you can never be too prepared for handling allegations being investigated by the State Bar. Thus, one of the first things an attorney can do in this situation is to review the Rules of Practice and Procedure of the State Bar Court.
You may also wish to retain your own State Bar Ethics Defense Attorney as there are many firms within the state that specialize in these matters.
Regardless of whether you hire a defense attorney, this is a good time for an honest gut-check. Do you think you may have violated one of your ethical obligations?
Being honest with yourself, if you believe that you are in the wrong, you may want to consider requesting an Early Neutral Evaluation Conference, which can help you settle the matter quickly and keep it out of State Bar Court (and thus, out of the public domain).
If not, it’s time to do what you’d advise any client to do when faced with possible litigation: preserve documents and other evidence, locate relevant witnesses, and keep your mouth shut except when you’re engaged in a privileged conversation.
When in doubt…
Of course, the very best thing you can do when it comes to misconduct complaints is to avoid them all together.
How do you do that?
Well, you can start by regularly reviewing the state’s published attorney-discipline cases to learn what not to do.
You can (and should) always stay abreast of the ethical rules regulating your practice. And, if you’re ever in doubt about what to do in a certain situation, you can place a call to the State Ethics Hotline for confidential research and guidance on your professional responsibilities.
No attorney wants to face misconduct charges. Unfortunately, it’s a risk that exists just by virtue of practicing. The best course of action is to confidently follow the rules and be prepared should an allegation come your way.