The presenter at the annual legal ethics seminar said "it can happen to anyone" who is not careful enough. Yet, you didn't think that included you!
You realize you didn't manage the risks in your practice and seek preventive advice as you should, but you're honest and you work hard for your clients. Even three clients who complained that you botched their cases understand that you were going through a rough patch. Besides, three problem cases out of the hundreds you've handled in your career shouldn't cause you to receive a reprimand or lose your license for a period of time.
You've received that official letter from the Board of Commissioners on Grievances and Discipline. The letter reveals that the probable cause panel has certified the "formal complaint" to the board. You have twenty days to file an answer the formal complaint. You are not quite sure what this all means but it doesn't sound good.
Where is this heading?
Considerations for responding to a formal lawyer discipline complaint, meaning one that has moved beyond investigation toward a hearing, are much different than consideration for merely answering a grievance. The reality is that most grievances do not result in formal charges. Conversely, formal charges almost always result in discipline. So, if you haven't yet taken the matter seriously, you'd better get serious now. Whereas the grievance investigation was private and confidential, formal complaints are public information and the formal deadlines of the rules of civil procedure govern.
So, what should you be thinking about to save your career?
The cause is not lost. Many lawyers who enter the formal lawyer discipline system lose hope. After being in denial during the investigation, at the formal stage, they give up and tend to expect the worst. They know the matter will become public knowledge and the embarrassment is too much to bear. They also internalize the problem and worry to the point of becoming immobilized. They don't recognize that the formal proceedings will take a number of months to complete and they must remain productive. They forget what they tell their own clients: worrying never helps but taking positive steps will.
What positive steps must you take?
Answer the Complaint and participate in the hearing. It has been said that showing up is half the battle. This truism of life also applies to the lawyer discipline system. It seems rather basic but many lawyers lose their license indefinitely or permanently because they don't participate in the proceedings and don't even appear at the hearing. Many don't keep the Supreme Court aware of their new address and don't pick up the certified mail. Conversely, most lawyers who attend the hearing and take responsibility or put forth a reasonable defense continue practicing under a stayed suspension or are able to return to practice after serving a suspension of six months to two years.
Yet, how can you control the damage in your case?
Accept responsibility and put forth a reasonable defense. Experienced professional responsibility lawyers will tell you that it is often a mistake to approach the defense of a lawyer discipline case like a typical court case. Cooperating with the relator is critical. Stipulating to undisputed facts and relevant documents is highly encouraged as most lawyer discipline trials are completed within a day or two. Restitution, accepting responsibility, and remorse are among the most important mitigating factors which can decrease the ultimate sanction. Any defense must be eminently reasonable to avoid making the situation worse.
So, what specifically can you do to make sure your approach is proper?
Get help. For several reasons, lawyers who get in disciplinary trouble don't get help from a trusted mentor, colleague or hire experienced counsel. Some who reach the formal discipline system have mental or substance abuse impairments but do not affiliate with the lawyers assistance program. Lawyers are wired to believe they can solve most any problem. Yet, when a lawyer's license is in the balance, it is not the ideal time to learn a new area of practice, professional discipline. Some lawyers don't think they can afford to hire a lawyer to help them, so they don't even investigate the possibility of entering a reasonable hourly or flat fee arrangement. They forget that if they don't get help to put their best foot forward in the disciplinary proceedings, they may lose their livelihood for a longer period of time than they would have had they sought the help they needed.
In sum, there is considerable preparation that goes into a meaningful lawyer discipline defense. Following a few basics tenets can make a big difference in keeping a bad situation from becoming worse. The forgoing are just a few practical thoughts you should keep in mind if you are faced with the stark reality that formal disciplinary proceedings "can happen to anyone," who is not careful enough.