When Bar Counsel Comes Calling

by Jason Dzubow on December 12, 2012

in Immigration, Legal

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Every attorney who regularly represents immigrants and asylum seekers is familiar with Matter of Lozada.  In short, Lozada states that to reopen an immigration case where the previous attorney was constitutionally ineffective, the alien must file a bar complaint against that attorney.  Despite some intervening decisions, Lozada is still the controlling law.  As a result, many immigration lawyers will face a bar complaint at some point in their career.

It starts with Lozada, and ends like this.

In that happy spirit, I am re-posting an excellent article by Dolores Dorsainvil, a Senior Staff Attorney with the D.C. Office of Bar Counsel (the article is written with the DC Rules of Professional Conduct in mind, but it really applies to all jurisdictions). Ms. Dorsainvil investigates and, where necessary, prosecutes allegations of ethical misconduct of District of Columbia attorneys.  She is also an adjunct professor at the American University’s Washington College of Law where she teaches Legal Ethics.  She has an ethics blog, The Gavel, which can be found here.  Without further ado, here is her article, 7 Tips for Dealing with Bar Counsel Complaints:

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, with hundreds of Bar Counsel complaints lodged every year, 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). 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.

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