Disciplinary Actions When Bad Things Happen to Good Lawyers
By Cydney Batchelor
Now, as promised, here are my suggestions for how to avoid most disciplinary complaints—but remember, some will be filed no matter what you do.
1. Hold your law license very close. Attorneys are all too trusting of others. Remember how hard you worked for your license, and don’t give anyone else permission to take it away from you. Supervise your staff scrupulously. Don’t let them write checks, accept money, give legal advice, or lie to cover for you.
2. Never go it alone. This does not mean that you cannot or should not be a sole practitioner. My father was a sole practitioner, and he loved every minute of it. What it does mean, however, is that you need another attorney to consult when the need arises. You need someone to give you a reality check and someone who’ll cover for you if disaster strikes. Disaster for a sole practitioner can be as small as a three-week bout of the flu with no other attorney available to step into the breech.
3. Develop business skills and savvy if you don’t already have them; work smarter, not harder. Embrace the technological benefits of practicing law in the twenty-first century. There are a plethora of computer programs that will do the administrative tasks in a law office in record time. These tools have the additional salutary effect of providing a paper trail if you are ever questioned by the bar. Most state and local bar associations have a law and technology section, and the American Bar Association has a wealth of information in this regard. Avail yourself of the tools you need to minimize your nonlegal work so that you can focus on the substantive issues.
4. Have a law practice management plan and follow it. Equally important, have your employees read and follow it. Again, state and local bar associations always have information for their members about this aspect of practicing, as does the ABA. This is not rocket science, and you don’t need to reinvent this wheel. The materials are there for the asking (and your licensing agency will be very impressed with your professionalism if a complaint is ever lodged against you).
5. Keep your client trust accounting responsibilities at the very top of your priority list. You would be astounded at how many attorneys delegate this important task to their office staff (including spouses and relatives who work in the office). Whether or not your jurisdiction has a rule against allowing nonlawyers to write checks on your trust account, never, ever allow anyone else to do so. Also, you must reconcile your trust account records—personally—on a monthly basis. You can have an accountant manage your trust account record keeping (and many times, errant respondents are required to have a CPA certify their records on an ongoing basis), and you can have your employees do the basic bookkeeping, but the ultimate responsibility for your client trust account is a non-delegable duty.
6. Document, document, document all the work you do. When a client employs you, look to the worst-case scenario and protect yourself proactively by having a paper record of all communications with them. If you follow tip number three above, you’ll find out that there are wonderful computer programs that will set up forms for you requiring very little effort on the part of you and your staff but yielding huge benefits for your practice. The best-case scenario when the bar inquires is to have a two-inch stack of paper documenting your position. Believe me.
7. Respond to every telephone call within 48 hours. This is the number-one reason that clients complain to our state bar. If you are employed by a large firm and your client can’t get you on the telephone, then the receptionist can transfer the call around until some attorney can take it. No such luck for sole practitioners and small firms. Accordingly, clients call your licensing agency. It’s much easier to return a client’s call than to have to respond to one from the bar.
8. Remember that no lie (or fib) is ever worth the potential consequences. We frequently see this in connection with tip number seven. Attorneys adhere to rule seven but then are embarrassed about not having progressed as far as they expected (here’s that shame again) and make up a little fib, telling the client that the matter is proceeding nicely. That little fib turns a low-level disciplinary offense (not returning calls) into a major one (moral turpitude). All of us have those files that never seem to get attention—the credenza queens gathering dust across the room. If you really can’t or won’t get to the file after multiple inquiries from the client, then you may need to withdraw. Anything except lie to a client.
9. Read all the disciplinary decisions on a monthly basis (whether you want to or not). Remember how for years after you passed the bar you continued to read the subsequent bar exam questions (well, at least I did) to remind yourself how glad you were that it was behind you? You should read the discipline decisions for the same reason—to remind yourself on an ongoing basis that your license is a privilege that must be carefully safeguarded. Some jurisdictions— California included—have ethics classes and client trust accounting schools at nominal cost. These, too, can be valuable resources for you. Again, keep your eyes on the prize—avoid complaints against your license to the full extent possible.
10. If you find that your “bump in the road” includes alcohol, drug, or mental health problems, get help before it affects your license. Immediately after I started working for the state bar discipline office, I discovered that a significant number of licensing matters involved attorneys who were suffering some kind of impairment. Whenever possible, I immediately referred these people to our lawyers-helping-lawyers organization, called “The Other Bar,” with great results. More recently, we’ve added to our ability to reach impaired attorneys with a full-time, professional lawyer assistance program (LAP) staffed by licensed mental health clinicians. The services of The Other Bar are always 100 percent confidential, and the services of our LAP are always 100 percent confidential unless attorneys specifically waive confidentiality to have their participation considered as a mitigating factor in their disciplinary matters. Fortunately, every state in the United States has some form of a professional LAP and/or an organization of lawyers helping lawyers (and sometimes judges). If you take away no other thought from this article, please, please, please consult one of these organizations if you find yourself in need of its services. If you’re not clear about the organization in your jurisdiction, please call the ABA toll-free number (800/238-2667), and the Commission on Lawyer Assistance Programs (CoLAP) will provide you the contact information and support that you need.
I wish you well in your practice, and I applaud your courage in working as a sole practitioner or in a small firm. I know from watching my father that this is the hardest way to practice law. My father always said that it was also the most rewarding. I hope that is true for you.
Cydney Batchelor has been a California State Bar prosecutor for the past 15 years. For the last five, her practice has been limited to cases in which attorneys with discipline complaints have drug, alcohol, or mental health problems. She can be reached at cydney.batchelor@calbar.ca.gov.
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