What’s the best way to deal with a Bar Complaint?

Fix your problem or mistake before it escalates into a complaint.

Last year I wrote a white paper on how to deal with State Bar disciplinary matters. It walks the reader step-by-step through the Bar complaint process, from initial response through (heaven forbid) embarrassing public sanctions from the Georgia Supreme Court. I also write and speak about best practices for maintaining an ethical practice and keeping clear of the Georgia Bar disciplinary process.

A recent client meeting reminded me of the often-overlooked period of time between when an attorney discovers an error or mistake and the client subsequently files a Bar complaint. How you react and respond when you first learn of a mistake can be critical to your client’s satisfaction, your reputation, and potentially your ability to practice law.

We’re lawyers, but we’re still human

At some point you probably have made (or will make) a mistake that impacts a client’s case or representation. Some common examples from my clients include:

• Missed deadline.
• Failure to file within statutory time limit.
• Failure to send a timely statutory notice, or notice not delivered correctly.
• Failure to notify carrier about a claim against uninsured motorist coverage.
• Committing to a deal point without the client’s full and informed consent.

You made a mistake. You know it, and your client either knows or will know shortly. You’re in some degree of trouble, and it could lead to a Bar complaint depending on how you handle the situation. It’s time to push your ego aside and move into repair mode.

The lost art of claim repair

Many E&O insurance carriers used to have staff dedicated to the claim repair process. Now they seem to focus more on of a wait and see approach to minimize their costs, potentially at the expense of their clients’ (attorneys’) reputations. Let’s learn from what they used to do, so we can attempt to repair our mistakes and our client relationships.

Grievance avoidance – tips for resolving conflict before a complaint is filed

This is a very tricky situation. How you reveal and respond to the mistake is very important, as you don’t want the client using anything against you in a future legal or Bar action. Also, you do not want to compromise future insurance coverage.

• Acknowledge a mistake. Admit the mistake to yourself and do not play ostrich. Sticking your head in the sand costs you precious time.
• Seek legal counsel. Don’t be a martyr and go at this alone. Additional mistakes may cause you more problems if the situation escalates. Independent counsel can also help moderate the tone and emotion of discussions with the client.
• Notify your E&O carrier if required. The specific timeframe and procedure depends on your policy, and some policies don’t require reporting until there is an actual grievance filed.
• Admit it. Put it in writing. Notify the client that a mistake may have been made, and outline the client’s options, including the right to seek independent counsel.
• Meet with the client. Help the client remember the initial goals. If applicable, outline different avenues for the client to still prevail. Work on a mutually agreeable solution.
• Document the solution. End the repair process with pen on paper. Document the steps taken to repair the mistake and the client’s decision not to see independent counsel. Do not attempt to have your client release the right to file a Bar complaint. That’s a violation of the Georgia Bar Rules.

Remember that your client’s goal hasn’t changed

If you address the issue head-on, you may find that your client just wants to correct the situation, get back to working toward the original goals, and avoid the hassle of consulting another attorney or filing a Bar complaint. For ongoing client relationships, you may find that this experience ultimately enhances your credibility and the client’s loyalty.

Protect the client and protect yourself

Even though you attempted to proactively address your mistake, the approach may not work and the client may still decide to file a grievance. If your attempt at repair doesn’t work, put your carrier on notice pursuant to your policy guidelines. Your proactive position may help minimize or even eliminate allegations of specific Rule violations, and possibly eliminate the resulting discipline, should the client decide to file a grievance.

If you can’t make it to a seminar, please join our LinkedIn group and participate in the online discussion – Attorney Ethics and Professional Liability.

Douglas Chandler