Each year, about 75% of all ethics complaints received by the Office of Lawyers Professional Responsibility are summarily dismissed without investigation, or after investigation with a determination that discipline is not warranted. When the Director’s Office chooses to investigate, there must be “a reasonable belief that professional misconduct may have occurred,” states Rule 8(a), Rules on Lawyers Professional Responsibility (RLPR). A Notice of Investigation (NOI) is issued to the attorney, who then has an opportunity to respond.
If you are an attorney who is served with an NOI (ethics complaint), here are 5 must-dos when responding to it:
1. Cooperate with the investigation
Although the Director’s Office may conduct the investigation, a volunteer with the District Ethics Committee (DEC) usually investigates complaints and makes reports and recommendations. The DEC is comprised of attorney members and non-attorney members.
The NOI includes a copy of the complaint, asks for a response, and identifies the investigator. The NOI might also describe the alleged misconduct and/or the ethics rules at issue. You may also ask the OLPR to clarify the possible rules violation(s) that are being investigated.
Rule 25, RLPR mandates a duty to cooperate with the investigation. This means responding to reasonable requests for papers and documents, a written explanation addressing the matter under consideration, and appearing at meetings, conferences and hearings.
Rule 8.1(b), Minnesota Rules of Professional Conduct (MRPC)(Bar Admission and Disciplinary Matters) further states a lawyer shall not “knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority…” except when the information is otherwise protected by Rule 1.6, MRPC (Confidentiality of Information).
Failure to cooperate amounts to a violation of Rule 8.1(b), which may be an additional charge independent of the underlying complaint. It can even subject the lawyer to public discipline.
Consider the investigation process as an opportunity to set the record straight and provide your perspective on what actually occurred. At this stage, the OLPR is more of a fact-finder instead of a prosecutor.
2. Be on time
Ignoring the NOI and burying it under a pile of miscellaneous files won’t make it go away. Confront the complaint head on, even if you think it has no merits.
The NOI will give you a deadline in which to respond, typically 14 days. Filing your response on time is paramount to meeting your obligations under Rule 8.1(b), MRPC. It can also work in your favor as to the merits of the complaint, particularly if you are under investigation for violating Rule 1.3, MRPC (Diligence).
Put the due date on your calendar and into your tickler system. Set aside plenty of time to fully prepare a well-developed response.
Timely and reasonable requests for extension are readily granted by the OLPR and DEC, but don’t ask for more time unless you really need it. Refrain from asking for long and additional extensions, which could give the impression that you procrastinate on important matters.
Submit a written request well before the due date and explain why you are asking for an extension. (Being preoccupied with client deadlines and attending trial are good reasons. Not being able to locate the client file or the documents requested is probably not.)
3. Set a professional and respectful tone
It can be nerve-wracking to find out the Director’s Office has opted to investigate, instead of summarily dismiss the complaint on its face. Your receiving an NOI means there are claims in the complaint — if found to be true — that amount to a violation of one or more ethics rules.
Show the utmost respect to the investigator (including non-attorney DEC members). Submitting an angry and defensive response will not help you. Resorting to personal attacks on the complainant or witness or engaging in emotional tirades makes a bad situation worse.
Do not file a retaliatory lawsuit or threaten the complainant with a defamation suit, which may lead to additional charges of professional misconduct. The complainant has full immunity. Rule 21, RLPR, provides that an ethics complaint is absolutely privileged and may not serve as a basis for liability in a civil lawsuit.
Although you may take corrective action to address clients’ concerns noted in the complaint, you may not demand they withdraw their complaint as a condition. A complaint cannot be withdrawn once an NOI issued.
Your response will likely be marked as an exhibit if the OLPR decides to pursue disciplinary action against you. Your behavior during the investigation and disciplinary proceedings does matter. In one attorney discipline case, Pokorny was issued a private admonition for isolated and non-serious misconduct, but was suspended for his behavior during proceedings. See In re Pokorny, 453 N.W.2d 345 (Minn. 1990).
4. Provide a coherent description of the facts with documents to back it up
When there are conflicting versions of relevant facts, highlight positive factors that bolster your credibility or discredit the complainant. But refrain from revealing irrelevant and embarrassing information just to get back at the complainant, especially if it involves client confidences. Disclosure of confidential client information is limited to the extent necessary to establish a claim or defense in a controversy with the client or to respond to allegations by the client concerning the lawyer’s representation. Rule 1.6(b)(8), MRPC.
Prepare a well-written, detailed and coherent response as if it were for your most important, favorite client. Provide facts and information that demonstrate how you met or exceeded your professional obligations. Support your response with relevant documentation, including sworn affidavits from third parties who have direct knowledge of the matter.
If the complaint or NOI mentions you failed to provide competent representation, describe the work you did for the client, provide documentation of the work, and explain how the work served to meet the client’s objectives.
If failure to communicate with the client is at issue, produce the letters, emails, telephone records, attorney-client meeting notes, and case notes demonstrating regular correspondence.
If failure to act diligently is one of the allegations, include evidence of your meeting deadlines, attending hearings, and following up on the client’s case. Describe any legitimate basis for inactivity in the client’s case. Did the client fail to timely respond to requests for necessary information and documents? Did you stop working on the case (without unduly prejudicing the client) because the client failed to pay agreed-upon legal fees?
Make sure the information you provide is accurate. Review the client file, including case notes, correspondences, and work product. Qualify factual assertions when necessary. A response that includes false or inaccurate statements may be construed as a violation of Rule 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation) or 8.4(d) (conduct that is prejudicial to the administration of justice), MRPC.
5. Hire counsel (or at least get a second opinion)
When your reputation, profession, livelihood and attorney license are at stake, it can be very difficult to respond to the ethics complaint objectively and calmly. Consider hiring an ethics defense counsel for full representation or on a limited-scope basis. This is not a sign of culpability.
At the very least, have an attorney – who knows the investigation and disciplinary process well – review your response or work with you in preparing a response.
Be sure to review your malpractice insurance policy, which may provide for payment of fees of counsel for responding to the NOI. The policy may also require you to report the NOI to the carrier.
The risks and consequences are higher when the complaint goes beyond preliminary investigation. Present your best case at the outset. Before you submit your response, get experienced counsel to check for clarity, coherence, and tone.
These are the top 5 must-dos when responding to an ethics complaint. These tips will help you maximize your chances of having the complaint dismissed when you did all you could to meet your professional obligations. The response you provide influences the OLPR’s decision on whether to go beyond the investigation. It will also play a crucial role if the OLPR decides to pursue disciplinary action against you.
Be sure to read 5 Must-Knows When Responding to an Ethics Complaint.
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This article provides general information only. Do not consider it as legal advice for any individual case or situation.
The author, Dyan Williams, is admitted to the Minnesota state bar and focuses on the Minnesota Rules of Professional Conduct, which are subject to change. Check your individual state rules of professional conduct, regulations, ethics opinions and case precedents, instead of relying on this article for specific guidance.
Photo by: Davide Cassanello