The Dangers of Self-Inflicted Bar Rule Violations

A hypothetical case study.

One of the interactive parts of my Attorney Ethics and Professional Liability CLE seminars is a discussion of how Bar Rules apply to certain hypothetical situations. I’ve shared a number of these examples in previous articles, but below is another hypothetical situation assimilated from several Bar Complaint defense clients I’ve assisted over the years. As you will see, this hypothetical situation can be avoided with sound business operating procedures.

Douglas Chandler and the case of the perplexed partner

Act I opens with a law firm partner handing his associate a potential client with a case already in litigation. The potential client was not satisfied with his previous lawyer’s representation. The associate, eager to please and hungry for work, has the new client sign a fee agreement after a brief initial meeting. The associate hands the fee agreement to the partner who has never met the client. The partner signs without further review of any file materials. Queue ominous music. At this point, no one knows that the client’s previous lawyer missed a claim determinative deadline.

The case was dead on arrival.

Several months later, the associate uncovers the previous lawyer’s error and realizes that the case is dead. The associate, without alerting the partner, files a notice of withdrawal, e-signing the Partner’s name. The client receives a copy of the withdrawal notice after it is filed. The client doesn’t understand why he’s being dropped, calls the partner, and receives a generic response. Obviously, the partner and the associate are not actively communicating about the matter. The frustrated client files a Bar grievance against the partner.

The partner, surprised that his name is listed on a Bar grievance, hands it to his associate to respond to the Bar. That’s not the partner’s problem, after all. The associate’s initial response is insufficient and starts to introduce some inconsistencies surrounding the withdrawal. Based on the inadequate response, the Bar files a Notice of Investigation (NOI). Upon receipt, the partner:

• Signs the NOI.
• Confirms (without reviewing the file) that the previous responses were accurate.
• Attaches a cover letter addressing only one of several Bar Rule violations alleged in the NOI.

Before intermission, we see the Bar Investigative Panel members scratching their heads wondering if the partner is oblivious, evasive, or downright dishonest. A gavel falls, and the scene fades to black.

I get a phone call….

As the NOI response deadline approaches, the partner finally realizes that he’s got a problem due to previous inconsistent responses. The partner, through counsel, must now backtrack and adequately respond to each alleged Rule violation to avoid further Panel allegations. The proverbial train is leaving the station, and the problems are about to get worse unless we derail this process.

This drama has a happy ending

We provide the details of events leading up to the Investigative Panel review, respond directly to each of the Bar’s specific allegations, and enact some new operating procedures within the law firm to prevent future issues.

How you can avoid this drama occurring in your firm

While I made light of a potential serious situation in this article, these issues occur far too often, and there are several simple things you can do to avoid the same possible pitfalls:

• Meet with every client. If you must have a paralegal meet, you still need to review the file before you, or someone else in your firm, accepts representation. As soon as you sign (or someone signs for you), you are responsible. You cannot shift the blame to a subordinate lawyer or staff member.
• Do some level of due diligence. This whole hypothetical situation could have been avoided if the partner reviewed the case and saw the prior lawyer’s missed deadline. At that point a proper non-engagement letter could be sent with provable delivery.
• Sign your own name. As soon as your name goes on a document, you’re responsible. Resist the temptation to allow lawyers and staff members sign your name “with express permission.” If an associate makes a mistake, you can be held responsible for failure to supervise employees.
• Treat withdrawals like engagements. When you need to withdraw from a case, call and set up a meeting. Explain your rationale and then provide written confirmation. Clear communication like this builds trust and respect, which could result in future business or referrals.
• Respond to Bar Complaints properly and completely. I continue to be surprised that lawyers tend to act like lawyers when responding to the Bar. It doesn’t work, so either be specific and transparent, or find a professional who can respond on your behalf.

The End?

If you enjoyed this article, please let me know and I’ll publish additional case studies in this format. To schedule a seminar for your firm, local Bar Association, or group, please contact the firm at 770-751-8050 or douglas@chandler-law.net.

Douglas Chandler

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