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| January 6, 2009 |
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What If Your Client Complains About You? |
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The State Bar’s Lawyer Regulation Department is set up to resolve attorney-client disputes informally and to formally investigate serious allegations of misconduct. Almost all disputes or concerns start with the Bar’s Attorney/Consumer Assistance Program. Attorney/Consumer Assistance Program (A/CAP) A/CAP serves as the intake and prescreening functions of the State Bar’s Lawyer Regulation Department. A/CAP may be able to help if a client is having a dispute with his/her attorney, if an attorney is having a dispute with his/her client, or if an attorney is having a dispute with another attorney. Explaining More About the Discipline Process The Bar has a thorough and fair process to investigate allegations of attorney misconduct. It’s important that you understand how the process works. Frequently Asked Questions About Lawyer Regulation Read the answers to questions received most often from attorneys who contact the Lawyer Regulation Department. Attorney/Consumer Assistance Program The Attorney/Consumer Assistance Program (A/CAP) may be able to help if a client is having a dispute with his/her attorney, if an attorney is having a dispute with his/her client, or if an attorney is having a dispute with another attorney. If you want the assistance of A/CAP, please call the A/CAP informational hotline at 602-340-7280. If you do not wish to call, you can write to us at: State Bar of Arizona Intake and Discipline Process A/CAP serves the intake and prescreen functions of the State Bar’s Lawyer Regulation Office. A/CAP allows concerned individuals--attorneys and consumers--to speak with an attorney who is trained in dispute resolution and interpersonal communication, and who is also knowledgeable in the Arizona disciplinary process. A/CAP attorneys listen, gather information, inform, and, as appropriate, attempt to resolve concerns brought to their attention. When appropriate, they attempt to rebuild the trust between the complainant, say a client or opposing attorney, and the attorney about whom the inquiry is made. In any event, serious complaints are referred to Bar counsel for investigation. Upon receiving a telephone call, A/CAP first attempts to discern whether the complaint is of such a serious nature that it must be referred for investigation. Serious complaints include trust account violations, theft of funds, drug & alcohol related complaints, and criminal convictions. Less serious complaints are resolved as quickly as possible by answering the complainant’s questions and/or facilitating a resolution between that party and the attorney about whom the concern is raised. Often a consumer needs only a referral to an appropriate program or entity, such as, Fee Arbitration, Mediation, Client Protection Fund, Maricopa or Pima County Bar Association Lawyer Referral Service, Commission on Judicial Conduct, or Legal Aid. Minor concerns, such as a recent lack of communication from an attorney or questions regarding case status are handled quickly by facilitating communication between the complainant and attorney. A call to the attorney, alerting her or him to the inquiry, and the need for follow-up, usually resolves the matter. Written complaints are screened under Rule 53(b)(1), Ariz. R. S. Ct., which requires that bar counsel conduct a screening investigation if the complaint alleges facts that, if true, would constitute misconduct or incapacity. To determine whether an attorney’s conduct would constitute misconduct, A/CAP reviews the applicable rules of professional conduct, in Rule 42, Ariz. R. S. Ct. If the allegations fail to meet the threshold for investigation, the complainant is advised of this determination by letter explaining why the matter will not be investigated further. The attorney in issue will also receive an appropriate letter advising her or him that allegations were received but will not be investigated further. The letter may request that the attorney perform some action, such as contacting the complainant to answer questions posed by the complainant, or returning documents. In any event, the attorney inquired about will receive a copy of the allegations submitted to A/CAP. Allegations warranting further investigation are referred to investigative bar counsel. How the Discipline Process Works The purposes of lawyer discipline proceedings are:
What Doesn’t the State Bar of Arizona Handle?
What Happens After a Charge is Received? Charges received by the State Bar of Arizona are handled in several ways: 1. Charges are dismissed if they do not violate the Rules of Professional Conduct contained with in Rule 42 of the Rules of the Supreme Court of Arizona. 2. Charges are referred to the Peer Review Program when the lawyer has not violated the Rules of Professional Conduct but has shown incivility or unprofessional behavior toward clients or others. 3. Low-level violations or client relation problems may be resolved by Attorney/Consumer Assistance Program or may be referred to mediation for resolution. 4. If the charges against an attorney are found to violate the Rules of Professional Conduct, the attorney may be referred to a diversion program, required to pay restitution, issued an informal reprimand or censure, ordered to pay costs, placed on disability inactive status, suspended or disbarred. Any alleged attorney misconduct would be investigated if it meets the following standard: Would the alleged conduct, if true, be grounds for discipline or transfer to disability inactive status? Prescreening Bar proceedings begin when a written charge is received which means "any suggestion of misconduct or incapacity brought to the attention of the State Bar." Each charge is reviewed to determine whether it meets the threshold for screening. This threshold is dictated by court rule and is relatively low. The test for screening is whether the charges as submitted contain facts, which, if true, would constitute misconduct or incapacity. If a charge meets this threshold, it is typically placed into screening (i.e., investigation). A notice of charges made and dismissed or not referred to another State Bar program (e.g., peer review or fee arbitration) is sent to the lawyer(s) named in the complaint for informational purposes only. Screening When a case is placed into screening, the complainant is notified, and a copy of the charge is sent to the respondent lawyer. A written response is due from the respondent within 20 days. Extensions of time may be granted for good cause but failure to make a timely response can result in the respondent being deposed at his or her own expense. It may also often result in a sanction being imposed for failure to cooperate with the Bar. Bar counsel is required to forward a copy of the respondent's response to the complainant, unless a request for confidentiality is granted. The response is sent, along with a cover letter indicating that the complainant may submit further comments, if desired, within 15 days. If the complainant provides a reply, it is forwarded to the respondent. Further comments from the respondent are optional, but are due within 15 days, absent an extension of time. In many cases, bar counsel will have all necessary information after the routine screening process. In other cases, however, additional investigation is necessary. Bar counsel or staff investigators conduct whatever research or investigation is appropriate to form a recommendation. Probable Cause Review Once bar counsel has sufficient information to recommend how a charge should be disposed, he or she prepares a summary of the file. By court rule, the panelist is the first vice president of the State Bar (a position which changes annually) or his/her designee. The panelist or designee may approve, disapprove or modify the recommendation of bar counsel. Recommendations to the panelist may include: probation, diversion, restitution, informal reprimand, costs, probable cause to file a complaint, probable cause to file a disability petition, or stay. Once a probable cause order is issued, bar counsel prepares a complaint. Formal proceedings begin when the complaint is filed by bar counsel with the disciplinary clerk. The clerk assigns the matter to the next hearing officer in rotation in the appropriate venue. In cases assigned to a hearing officer, each side may file one timely notice of transfer. The respondent's answer is due within 20 days of service and is filed with the disciplinary clerk and a copy served on bar counsel. Motions for extensions of time to answer must be ruled on by the hearing officer. If no timely answer is filed, the matter will be treated as a default and the lawyer may be summarily suspended from practice. After an evidentiary hearing, the hearing officer submits a written report with findings of fact, conclusions of law, and recommendations. Recommendations of dismissal, diversion, informal reprimand, or probation are final if neither side objects within 10 days. If either party objects, or if the recommendation is for censure, suspension, or disbarment, the case proceeds to the Disciplinary Commission of the Supreme Court of Arizona. At least one settlement conference will be held before a designated settlement officer prior to the evidentiary hearing, unless the parties agree otherwise. Consent agreements are routinely explored in cases where the essential facts are not in dispute. A respondent against whom a charge has been made or a complaint has been filed may tender a conditional admission to the charge or complaint or to a particular count in exchange for a stated form of discipline, other than disbarment, at any stage of the proceedings. Consent agreements are governed by Rule 56, Ariz.R.S.Ct. Disciplinary Commission The Disciplinary Commission of the Supreme Court of Arizona is an intermediate disciplinary entity comprised of seven lawyers and two non-lawyers. It serves as an appellate body and reviews cases in which objections have been filed and all cases involving recommendations of censure, suspension, or disbarment. The Commission is bound by the record on appeal and no new evidence may be presented to it except under narrowly prescribed circumstances. A party wishing to appeal files a notice of appeal. If oral argument before the Commission if desired, it must be requested in notice of appeal. Opening and answering briefs are filed with the disciplinary clerk. Decisions of the Commission are final as to dismissal, probation, informal reprimand, and censures that are not appealed. Supreme Court of Arizona If the Commission recommends censure, suspension or disbarment, the parties may file petitions for review with the Supreme Court. In suspension and disbarment cases, if no notice of appeal is filed, the Court may, in its discretion, order that the matter be docketed for review. If the Court does not exercise its right to sua sponte review within 60 days, the matter becomes final with an order signed by the Supreme Court Clerk, appended to which is the report of the Disciplinary Commission. At its February 26, 1999 meeting, the Board of Governors unanimously approved to adopt the following schedule of costs for respondents in the discipline system:
*the amount is a cost assessment for up to 5 files (complainants) per proceeding. If files/complainants exceed 5, the assessment shall increase by 20% for each additional file where a violation is admitted or proven. Frequently Asked Questions about Lawyer Regulation
No, generally you do not need a lawyer to prepare your response to a bar charge. If you do not feel at ease in responding, or feel that you may in fact have violated the ethical rules, it may be wise for you to at least consult with counsel before responding. There are several lawyers who regularly handle matters from the screening stage through any formal proceedings, including before the Disciplinary Commission and Arizona Supreme Court. The Arizona Association of Defense Counsel (AADC) has established a program to provide a free initial consultation for attorneys asked by the State Bar to respond in writing to a disciplinary charge. A panel of experienced attorneys has been created to provide this service. If you are interested in receiving a free initial consultation please contact the AADC program coordinator: Gail Hornstein Upon receiving your request, the project coordinator will contact a panel member to determine his or her availability. The project coordinator will then put you into direct contact with the panel member to arrange for the initial consultation. (Except as necessary to fulfill the foregoing assignment responsibilities, the program coordinator will maintain the confidentiality of disciplinary charges.) Any responses during the screening phase of a complaint are sent to bar counsel assigned to handle the investigation of the charge. Any pleadings or motions filed during the screening phase should be filed with the State Bar records manager at 4201 N. 24th Street, Suite 200, Phoenix, AZ 85016-6288 and copies should be sent to the Probable Cause Panelist and to assigned bar counsel. If the matter becomes a formal proceeding, pleadings need to filed with the Disciplinary Clerk of the Supreme Court located at 1501 West Washington Street, Suite 104, Phoenix, Arizona 85007 with a copy being sent to the assigned bar counsel. A respondent against whom a charge has been made or a complaint has been filed may tender a conditional admission to the charge or complaint or to a particular count in exchange for a stated form of discipline, other than disbarment, at any stage of the proceedings. Consent agreements are governed by Rule 56, Ariz.R.S.Ct. What are the alternatives to discipline? There are several options. Mediation Unless more serious misconduct surfaces, settlement of a matter in mediation (and subsequent compliance with agreed-upon terms) will result in the complaint being dismissed, even if there was an underlying violation of the ethical rules. Mediation is optional. Lawyers who decline to mediate will have their matters referred to the normal disciplinary process. Diversion Programs Diversion is not an alternative to discipline in cases of serious misconduct or which factually present little hope that diversion will achieve program goals. Diversion will be considered in cases where, assuming allegations of ethical violation against the respondent lawyer are true, the sanction would be less than suspension, although some ethical violations warranting an informal reprimand or censure may not, under all circumstances, be diversion eligible. Successful completion of diversion results in the underlying matter being dismissed. Thus, an attorney who successfully completes diversion will have no record of discipline arising from the underlying complaint. Diversion Guidelines How long are records kept of disciplinary matters filed with the State Bar? Discipline records are kept forever, except for closed, miscellaneous, and dismissed investigations. See Rule 71, Ariz.R.S.Ct., for information relating to expungment of closed and dismissed files. Do discipline files remain confidential? If a complaint is not investigated, it becomes open to the public at the time when the State Bar advises the complainant that no investigation will occur. If an investigation is performed, complaints and subsequent correspondence between those involved generally become open to the public when the investigation is concluded and a decision made whether to pursue the lawyer in formal proceedings, unless the respondent specifically waives confidentiality earlier in the proceedings. Can the State Bar help me deal with a difficult client or colleague? The Attorney/Consumer Assistance Program (A/CAP) may be able to help if a client is having a dispute with his/her attorney, if an attorney is having a dispute with his/her client, or if an attorney is having a dispute with another attorney. If you want the assistance of A/CAP, please call the A/CAP hotline at 602-340-7280. The Attorney/Consumer Assistance Program (A/CAP) is designed to resolve some problems between attorneys and clients prior to filing a charge. A/CAP personnel will talk with you about your case, explore the nature of your dispute and the details of the actions of the attorney. The attorneys in A/CAP will then review this information and you may receive a return phone call from one of these attorneys to find out more about the problem you are having. If appropriate, the A/CAP attorney will help you in trying to resolve this dispute with the attorney. Does the attorney-client privilege prevent me from disclosing information to bar counsel? No. Attorneys are required to cooperate with the State Bar. The ethical rules allow an attorney to submit confidential information to defend him/her self in a disciplinary inquiry. If information is truly confidential, a party may request an order sealing a portion of the record. What is the most common reason for receiving a Bar charge? Failing to communicate with the client is the most common reason for receiving a Bar charge. The types of communication problems that the Bar receives include failing to tell a client about the status of a case, failing to inform clients about fees, and failing to communicate in a timely manner with opposing counsel. In order of frequency, the following are also common reasons for receiving a bar charge: diligence, scope of representation, safekeeping client property (trust accounts), and disputes about fees. What costs will I be assessed if I am found to have committed violations of the ethical rules? The Supreme Court rules require an assessment of costs and expenses related to disciplinary proceedings that shall be imposed by the hearing officer, the disciplinary commission, or the court as appropriate, in addition to any other sanction imposed. Where can I research discipline case decisions? Information on past disciplinary cases can be found on the disciplinary clerk’s page of the Arizona Supreme Court’s Web site. |
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