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OCDC Article - INSIDE THE INVESTIGATION - The Lawyer Under Investigation

Published: Jul 28, 2009

By Marc A. Lapp


You receive a letter from the Office of Chief Disciplinary Counsel (“OCDC”) with an attached ethics complaint making a “lawful demand” for your “complete, written response.”  You are now a lawyer under investigation. Rule 5.09; 5.11. How should you feel and react?  Should you handle the matter yourself or retain a lawyer?  If the complainant is your current client, should you terminate the relationship?  When you file your written response, what information should you include?

 

Lawyers under investigation convey all types of emotion.  Some, for whom this is their first ethics complaint, express fear or indignation. Many react with anger, shock or embarrassment.  Still others, who have logged many sleepless nights contemplating why they ever agreed to represent this particular client, in the first place, seem unsurprised that their client has become a complainant. Regardless of the reactions or emotions, a lawyer under investigation should not become distracted to the point of ignoring or putting aside the complaint.  It is a lawyer’s obligation to timely respond to an ethics complaint and to provide complete and accurate information.

 

The OCDC routinely provides the lawyer under investigation 3 weeks to file a written response to the complaint.  If the lawyer requests more time, the OCDC is usually accommodating. If, after multiple requests the lawyer fails to respond, she risks a separate sanction for non-cooperation. Knowingly failing to respond to a lawful demand for information from a disciplinary authority is a violation of Rule 4-8.1(c). “Prompt responses to a request for documents or other evidence not only expedite the process but also reflect on the willingness of the attorney to resolve any allegations of professional wrongdoing.  The individual attorney’s responsibility to the profession in this respect is no less important than the attorney’s ethical responsibility to a client and to the court.” In re Hardge-Harris, 845 S.W.2d 557, 560 (Mo. banc 1993).

 

A common question asked by lawyers under investigation is whether to retain counsel to respond to the ethics complaint. Although retaining counsel is always an option and sometimes done, most lawyers under investigation respond pro se. If the investigation proceeds beyond a review of the submitted documents, some lawyers then obtain representation. In any circumstance, however, a lawyer may want to consult with another lawyer to review the written response before filing. The RDCs tend to see retained counsel more often and earlier in the investigative process when the lawyer under investigation has a significant disciplinary history or when the complaint alleges severe prejudice to a client or to the administration of justice, such as with matters involving mishandled trust accounts, missing client funds or dishonest conduct.

 

With respect to an ethics complaint lodged by a current client, a frequent inclination for lawyers is to “withdraw” from the underlying representation. The particulars of the complaint may in fact mandate or strongly advise withdrawal. However, a lawyer can only terminate a legal representation if it can be done without prejudicing the client.  Regarding active legal proceedings, a lawyer may only withdraw upon proper notice, with permission from the tribunal and after refunding any unearned portion of a fee paid prior to withdrawing. Rule 4-1.16. So long as the legal representation is not terminated, the lawyer under investigation must continue to diligently perform the agreed-to legal services. Rule 4-1.3.

 

A corollary caution for a lawyer under investigation is to not threaten the client with retaliation for having filed a complaint.  Such misconduct may be the basis for a separate ethics charge of engaging in conduct that is prejudicial to the administration of justice. Rule 4-8.4 (d).  (In Illinois, Rule 1.8(h) specifically forbids a lawyer from any making any type of deal with a client to withdraw an ethics complaint.)

 

Upon receiving an ethics complaint, the lawyer should take ample time to prepare a careful and reasoned response. A good response will provide appropriate background information and legal context, while addressing as explicitly as feasible the complaints voiced by the client or other complainant, all with as little anger and sarcasm as possible.  84 ISBA Journal 452 (September 1996).  If there is a disagreement as to any important fact, the response should include copies of critical documents and information on how to contact witnesses with knowledge. Id. A forthright and complete response will often allow the RDC to complete its investigation without the need for having the lawyer appear for testimony. An emotional or incomplete response from a lawyer will likely prolong the investigation and may also expand its scope.

 

Receiving and responding to an ethics complaint is not the most enjoyable experience. But, by taking a professional and cooperative approach throughout the investigative process, including filing a timely and well-conceived written response, a lawyer under investigation demonstrates responsibility and respect for her peers, our profession and the public we serve. The Special Representative to the RDC assigned to investigate the ethics complaint is available to answer any questions about procedure.

 

For additional information on the Missouri attorney disciplinary process, please visit the official website of the Office of Chief Disciplinary Counsel: http://www.mochiefcounsel.org

             Marc A. Lapp is a Special Representative to the Office of Chief Disciplinary Counsel, investigating ethics complaints and prosecuting professional misconduct for the Region X Disciplinary Committee. Marc is also Claims Counsel for Chartis Insurance in Clayton.You can email Marc with questions, comments or article ideas at specialrep@gmail.com.