When a Virginia attorney misbehaves: Reporting attorneys to the Bar

As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

I have written before about my opinion that most attorneys are ethical, honest people, despite the reputation to the contrary.  Nonetheless, as in any profession, there are always bad apples.  Lawyers have a very extensive system set up to root out the bad apples, but it only works when those who become aware of a lawyer's misbehavior are ready to speak up.  In the right circumstances, a misbehaving attorney can be reprimanded (privately or publicly), suspended, or even disbarred, meaning that attorney likely can never practice law again.  In light of the role that "victims" or other witnesses play in attorney discipline, it is important that everyone knows how to spot an unethical attorney, and what to do if you learn of one.  This blog post will cover some of the basics.

How to Tell if an Attorney is Acting Unethically

The biggest issue preventing most people from recognizing if an attorney is acting improperly is the difficulty of distinguishing between behavior that seems wrong to you, but is actually just the attorney zealously advocating for his client, and behavior that actually violates the Rules of Professional Conduct.  Obviously, the easiest way to tell if a lawyer is acting unethically would be for you to learn the entire Rules of Professional Conduct, but that's probably unrealistic for most of you.  The next best thing, then, would be if you see a lawyer do something you think might be improper, then go to the link I just provided and check the rules.

That being said, there are some fairly basic rules you should know regardless.  These are the rules I see violated most often:

• Competence - if a lawyer is not competent in an area of law, and cannot reasonably become competent in a short period of time, he should not take your case in that area
• Communication with client - a lawyer should keep his client reasonably updated on the status of a case, and respond to requests for information with a reasonable level of promptness; a lawyer must inform his client of all settlement offers received
• Fees - a lawyer must charge only reasonable fees and the fees must accurately reflect the amount of work done
• Privilege - a lawyer must not violate attorney-client privilege except where allowed (or required) by law
• Conflicts - a lawyer must inform his client of all potential conflicts of interest and receive his client's express approval to continue representation (sometimes even then the lawyer must not continue the representation); this rule also applies to some degree to former clients and former potential clients
• Frivolity - a lawyer may not bring a claim or defense he knows is frivolous (note that a claim brought despite clear, controlling contrary case law may not be frivolous if the lawyer is seeking to overturn that case law)
• Honesty - a lawyer may not knowingly make a false statement to anyone in the course of his representation of his client; a lawyer may not present to a court evidence that the lawyer knows to be false, even if doing so does not require the lawyer himself to lie; if a lawyer knows that a witness is committing perjury, the lawyer must take all reasonable action to prevent the perjury from continuing, even if that witness is the lawyer's own client
• Witness/evidence tampering - a lawyer must not destroy or assist in the destruction of evidence; a lawyer must not advise a non-party witness not to appear at a hearing or take other action to discourage that witness from appearing
• Ex Parte Communication - a lawyer may not communicate with a juror except as permitted by law; a lawyer may not communicate orally with a judge outside open court about the substance of a case without opposing counsel being present (or having had an opportunity to be present); a lawyer may not communicate in writing with a judge about the substance of a case without sending a copy of such communication to opposing counsel
• Witness - a lawyer may not take a case in which he reasonably believes he will be a necessary, substantive witness
• Communication with opposing parties - a lawyer may not communicate with an opposing party about the matter at issue if that party is represented by an attorney unless the other attorney has expressly authorized the communication; a lawyer may communicate with an opposing party who is not represented, but that lawyer must make clear that he is not "disinterested" and that lawyer cannot give any advice other than advice to hire an attorney
• Safeguarding property - a lawyer may not take for himself any money in a client's trust account for any purpose other than payment of that client's bill owed properly to the lawyer
• Criminal conduct - a lawyer cannot commit any crime (while "on the clock" or "off the clock") that reflects poorly on the lawyer's honesty, trustworthiness or fitness to practice law; if a lawyer sees a judge violating the law, the lawyer cannot assist the judge in doing so
• Advertising - any written legal advertisement sent to directly to anyone other than a former client must have the words "ATTORNEY ADVERTISING MATERIAL" on the front of the envelope; all statements in advertising must be true and not misleading (which excludes nearly all subjective statements); advertisements referring to specific case results must include certain disclaimers about the unreliability of using such case results to pick a lawyer; a lawyer must not continue to solicit business from someone who has stated a request to no longer be solicited

So, those are the big ones.  There are, of course, many more rules, but if you know these, you'll catch the vast majority of unethical attorneys.

Ok, so then what?

So, once you see what you think is an ethics violation, you need to report it to the Virginia State Bar.  First, gather as much information as you can about the attorney (most importantly - name, office address, and, if possible, State Bar number).  Then, go to the Virginia State Bar home page (http://www.vsb.org), and at the top under "professional regulation" scroll down to "how to file a misconduct inquiry about a lawyer" then click on the "inquiry form."  You can also get to the form by just clicking on this link.  From there, fill out and follow all the instructions on the form.  If your complaint is longer than the space provided, you can attach a letter laying out your complaint.  Then send it to the State Bar (address is listed on the form) and they take it from there.

So, what is the process?

Well, first the Bar will review to see if the State Bar has jurisdiction (checking to make sure the attorney is actually a Virginia attorney, for example).  If not, the complaint is dismissed.  If so, then the complaint is forwarded to Bar Counsel (an attorney for the State Bar) and a file is opened.  Bar Counsel will then review the complaint to see if the conduct alleged would actually indicate a rule violation if completely true.  If not, the complaint is dismissed, but if so, then a preliminary investigation begins.  Bar Counsel may ask the complainant for more information to make this determination.

At the preliminary investigation stage, the lawyer is sent the complaint and given an opportunity to respond.  If the lawyer responds, that response is sent to the complainant and the complainant can reply to it.  Once the complainant replies (or the time to do so has expired), the Bar Counsel will review the pleadings for basically what is "in play" (essentially all facts in the complaint not denied by the answer, all facts in the complaint denied by the answer but which denial was challenged by the complainant's reply, and all claims in the answer which were not disputed by the complainant's reply).  If those "in play" facts no longer support a rule violation, then the complaint is dismissed.  If they do, then a further investigation is ordered.

The full investigation will involve Bar Counsel interviewing witnesses (the complainant, the lawyer, anyone named as a witness by either, etc.), seeking documentary evidence, etc.  At the end of the investigation, the Bar Counsel will send the investigation results to a local committee to review and decide if there is sufficient evidence of a rule violation to continue.  If not, the complaint is dismissed, if so, a hearing is held.  If, after the hearing, a rule violation is found by "clear and convincing evidence," the attorney will be penalized accordingly.  There are then appeals that can follow.

Complainant's Role

As you can guess, then, your role may not end with the filing of a complaint.  You will be notified of the disposition of any complaint you file, but if there is a response filed by the attorney, you will likely need to file a reply for your response to not be dismissed.  Further, you will likely have to give a statement to Bar Counsel during the investigation, and you may have to testify at the hearing.  Otherwise, however, most of the work is undertaken by the Bar.

Conclusion

The Bar disciplinary process is very important to ensuring the integrity of the legal profession.  As a non-lawyer, you can help this system work by reporting unethical conduct you encounter from attorneys.