Responding to attorney discipline letter? Avoid 'stray words,' ethics counsel says
So, you got a notice from your state bar or state disciplinary authority that you are under investigation?
Ryan Little, a legal ethics lawyer, says there are two important things to remember. The first is: Don’t ignore the complaint.
“Some lawyers decide they won’t respond because they didn’t do anything wrong,” Little says. “That is almost universally a mistake.”
Little is the founder of Little Legal, a legal ethics firm serving California, Hawaii, Oregon, New Mexico and Alabama. He stresses that “failure to cooperate with a disciplinary investigation is itself an ethical violation and can lead to immediate suspension in most jurisdictions.”
The second mistake lawyers make, he says, is overexplaining themselves. Little advises lawyers to avoid “stray words” as they risk prolonging an investigation.
Little, who also serves on the ABA Standing Committee on Professional Regulation, emphasizes that “anything you say can and will be used against you.”
“Keep the response factual, and keep legal argumentation to a minimum,” he says.
In a recent interview, Little gave some tips on best practices for handling an initial notice of a complaint.
First off, what is a notice of a complaint? What does it mean?
In general, a notice of complaint is the communication that informs a lawyer that they’re under investigation by the lawyer disciplinary agency in their jurisdiction. The technical names for those communications may vary across states, but lawyers generally refer to them as bar complaints. More colorful language is often used when referring to one’s own bar complaint.
How big of a deal is this?
It’s a serious matter but not necessarily cause for alarm. An overwhelming majority of bar complaints are dismissed or resolved by nondisciplinary means. So you can’t ignore your response obligation, but you also probably shouldn’t lose sleep over the complaint either.
A complaint doesn’t mean prosecutors believe you’re guilty or that you’re going to be prosecuted. In fact, the prosecutor may well think the complaint is as baseless as you do.
Is this a time to hire a lawyer to help?
Yes, this is the time to hire a lawyer. While an inquiry letter isn’t necessarily cause for concern, your response to that complaint will generally dictate the outcome of the case. Missteps early in your response can create major obstacles to a favorable resolution later. Having an ethics lawyer quarterback your response strategy can be the difference between a quick dismissal and a costly, yearslong slog through the disciplinary system.
What are the next steps in responding to a notice of complaint?
My next step is usually to review the factual record underlying the complaint and create a timeline of events and the corresponding evidence. That helps reveal weaknesses in both the complaint and my client’s story. From there, I draft the rest of the response as a linear narrative, with a brief analysis section that explains my client’s position.
When drafting a response, don’t forget to humanize your client. State bar investigators are often responsible for hundreds of cases at a time. Your client will be just another name and case number unless you do something to humanize them. Even a brief biographical section can go a long way.
What happens after a response is submitted?
Once we submit the response, there’s not much to do but wait. Often, my clients’ cases get dismissed within a few weeks of submission. In other cases, it takes several months—sometimes years—to obtain a disposition. Sometimes, the state bar sends supplemental inquiry letters with additional questions about the complaint.
The overwhelming majority of my clients’ cases result in dismissals after the first response, often within a few weeks of submission. Conversely, the longer a case drags on, the higher the probability of prosecution.
What helps or hurts for a positive outcome?
As with any legal matter, hiring counsel is the best way to improve your chances of a favorable outcome. Having someone to consult and handle the drafting of your response is also generally the best way to minimize your stress and anxiety. Importantly, AI is not a substitute for competent counsel. Lately, I’ve noticed an uptick in lawyers that submit AI-drafted responses as a way to save money. Unfortunately, those responses are often utterly focused on the wrong issues. At least for now, humans still have the edge in discipline defense.
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