FLORIDA BAR COMPLAINTS - APPLICATION
WHY YOU NEED COUNSEL TO DEFEND YOU IN A BAR COMPLAINT

Lawyers often ask me, "How should I go about responding to a bar complaint?" The answer is, "YOU SHOULDN'T".

Of course a response must be filed and it must be truthful and responsive. That is part of the lawyer's ethical duty. But that doesn't speak much of how much should be said, how it should explained and exactly what steps need to be taken to properly address the complaint against the lawyer.

Bar complaints come in so many different shapes and sizes. Some are filed by disgruntled clients or disappointed adversaries and are mostly retaliatory in nature. But others are issued by the Bar itself, often in response to a report from a judge, and should be regarded as the practical equivalent of a formal charge of misconduct.

Since most are filed by disgruntled clients, they come sometimes handwritten and at times the complaint is barely if at all intelligible. This does not stop the Bar from requiring the lawyer to respond-even when the lawyer cannot determine exactly what it that the client is trying to say. Other Bar complaints are filed by those who are more intellectual (or so that might think) and cite chapter and verse from the Rules Regulating the Florida Bar and attach volumes and sometimes reams of paper (most of which have nothing to do with the complaint at all). No matter what the shape or size of the complaint may be, Bar counsel will forward it to you and request your response. While the complaint might not be read carefully, you can rest assure that the lawyer's response will.

Different allegations of misconduct obviously require different kinds of responses. The content of the complaint is only one factor that distinguishes one bar complaint from another. Another factor may be the attorney's prior disciplinary history and how many other complaints may exist or have been filed in the past against the attorney.

The Bar is not limited by the allegations of the complaint in deciding how much attention the situation deserves. The Bar does not rule upon the sufficiency of a complaint like a judge. Instead it investigates the commission of one more possible violations of the Rules Regulating the Florida Bar.

That means that the content of the lawyer's response is absolutely critical in the defense of the complaint. Lawyers who "rifle off" a response to a bar complaints in the mistaken belief that their response will be deemed truthful and will therefore shut down the investigation frequently find themselves in greater danger than when first served with the complaint. There isn't one right way to respond to every bar complaint, just as there isn't one right way to make a settlement presentation in every personal injury case or negotiate a plea bargain in every criminal case. There are simply too many factors that determine what constitutes an appropriate response.

Bar complaints are very serious. A bar complaint is a serious matter even if it is completely without merit. It is a serious matter because it is delivered to you as an official communication from the Florida Bar, acting as an agency of the Florida Supreme Court. That fact alone triggers ethical responsibilities under the Rules Regulating the Florida Bar. Having said that do not sink into despair and become self-destructive. It is a bar complaint and not the end of the world. This, too, will pass, and you'll feel better about it as soon a you get on top of it. Therefore, DO take the bar complaint seriously but DON'T panic, DON'T beat yourself up, DON'T lash out at the complainant (or anyone else), and DON'T try to "fix" the situation by taking remedial steps that you think are appropriate. The truth is you really do not know what to do because this is not what you normally do.

DON'T call the Bar's staff attorneys to persuade them that they never should have opened the file, and certainly don't belittle them for doing so. That accomplishes nothing except drawing more attention to your file and getting off on the wrong foot. Instead HIRE COUNSEL. We have all heard the adage "he who represents himself has a fool for a client". This was never more true than in defending a bar complaint. Most lawyers do not know about the grievance process and don't want to know about the grievance process. Defending yourself in such a proceeding would be like a nose doctor performing brain surgery upon himself. Not a good idea.

HERE ARE THE REASONS WHY YOU NEED COUNSEL

i. You cannot exercise independent professional judgment in evaluating your own situation.
ii. You don't spend most of your time analyzing fact patterns for possible violations of the Rules Regulating the Florida Bar.
iii. Your experience in civil or criminal proceedings is not equivalent to experience with the disciplinary process. It is a different arena with different rules, standards and conventions.
iv. Your response to the bar complaint will become part of the official record of the case if a charge is filed against you, and may be given greater weight than your answer to that charge. This list is hardly exhaustive. It is really just a beginning and hardly an end.

Many lawyers decide to prepare their own responses to avoid the expense of hiring an attorney, telling themselves that they can always do so if they receive word that Bar Counsel finds something significant in the complaint. All too often, they are surprised to find that the next communication they receive is an invitation to grievance committee, a charge of professional conduct, and sometimes and petition for an emergency suspension.

It has been my experience that hired counsel also helps with the following:

a.Investigation. Your attorney can discuss the matter with the complainant and other witnesses more easily, more productively and with less risk of creating additional ethical issues. You may still have an attorney-client relationship with the complainant, but your own lawyer does not.
b.Analysis. Your attorney can also help you see the situation objectively and prepare a response that addresses the issues in a detached, professional manner.
c.Drafting. An experienced disciplinary defense lawyer can help you frame your response in a way that addresses the ethics concerns legitimately raised by the bar complaint and reduces the risk of an expanded investigation.

In the end, while many complaints filed against attorneys are without merit, some can be extremely serious and may result in suspension or disbarment. Therefore retention of counsel is imperative and should be done as soon as a complaint is made known to an attorney. A well-crafted response is usually enough to end a formal investigation in its early stages. Unfortunately, missteps, such as disclosing unnecessary information or attacking the complainant, can result in innocent attorneys facing further investigation along with its unwanted consequences.

The Law Offices of Richard B. Marx and Associates is experienced and aggressive in the defense of those who have been served with a Bar grievance (a/k/a/ Bar inquiry or complaint), facing the loss of their license or are attempting to become licensed or relicensed. Richard B. Marx practices within the very narrow area of law concerning attorney disciplinary matters, legal ethics and professional responsibility. He has been defending lawyers in attorney disciplinary cases and giving expert opinions on issues of ethics and professional responsibility in the practice of law. Mr. Marx has been trying cases before judges and juries for more than 40 years for Florida bar and board of bar examiner matters. He is very knowledgeable as to how to prepare cases for trial including but not limited to preparing witnesses and the client so that they will be able to intelligently testify in court. He is able to design a strategy for winning at trial whether it is before a judge or jury. This separates him from most lawyers in the disciplinary field since the knowledge of the Rules Regulating the Florida Bar is not by itself sufficient to successfully defend a disciplinary case. Mr. Marx's background and experience gives him a distant advantage in defending lawyers. In many instances his experience on how to respond to Bar and its procedures provides the knowledge necessary to resolve cases at the lawyer. When a formal Florida Bar complaint is unavoidable, he will assist you in effectively defending your license to practice law. His experience and legal skills have resulted in excellent results for our clients.

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