It can happen to any lawyer, especially if you practice in the areas of personal injury, family or real estate law. It’s a letter from the State Bar of California asking you to respond to a complaint by a former client. Although your first reaction may be anger, panic or disgust at your ex-client making accusations against you, you will have a limited time to respond before the State Bar threatens default disbarment.
First, don’t panic. The majority of complaints are resolved without action being taken. But a complaint letter is the first step in the disciplinary process, and anything you say can and will be used against you. So I advise that you take a deep breath, try to get an extension of time on the due date of your response and talk to a lawyer about how to proceed. Don’t ever respond yourself; most of the time you will say or do something that triggers their antennae and makes you fall further down the rabbit hole. Next, I advise that you pull out a copy of your malpractice insurance policy and read through it.
You may be surprised to find out that many policies cover disciplinary complaints because they are a precursor to a legal malpractice claim. The provision to look for is the supplementary payment provision for the defense of disciplinary proceedings. Often your deductible requirement does not apply and the amount to be paid for defense costs is separate from and does not work to reduce your general policy limits.
The amount available can run the gamut from $5,000 to $25,000, and policy terms regarding choice of counsel can vary too. But one requirement is universal – you have to report the disciplinary complaint to the insurance company if you want to seek coverage. Many policies require that even if you don’t seek coverage.
Another thing you may want to ask your insurance company is whether they cover the initial phase of a Bar disciplinary complaint – i.e. if they cover your lawyer’s efforts to get the complaint administratively dismissed or otherwise resolved without the filing of a formal complaint. Unless the policy is absolutely clear about this, you are in a position to fight for coverage. Look for terms like “disciplinary process” to define the trigger for coverage – if the definition for that does not exclude the investigation phase that may be helpful to your argument.
Hopefully, you never face a Bar complaint. But the silver lining is that if you do, coverage is often available.
Carol M. Langford defends lawyers before the State Bar and provides ethics advice and counseling. She is also an adjunct professor at U.C. Berkeley, Boalt Hall School of Law.
Filed Under: Ethics Corner