I recently filed a claim against an attorney who I am also suing for legal malpractice. What will the attorney have to do with regards to the complaint from the bar of there is truth in the claim of fraud? Will they be disbarred?
Ethics / Professional Responsibility Lawyer
The attorney will have to answer the complaint in writing. If the attorney fails to respond he or she will be suspended. If the attorney responds, the committee will review the complaint and response. The Committee may decide to close the file if the complaint seems to lack merit or if they are satisfied with the lawyer's response. Or, they may ask for further written submissions. If questions remain, the Committee may conduct a hearing, or may refer the complaint to a hearing officer to hear and report. The Committee may then confirm or reject the report, and will issue its own recommendation. If the Committee's recommendation is for a serious form of discipline, the court will review it before discipline is imposed. That in broad outline is how the process works in NY and, with variations, in most other states. The process takes some time. In NY at least, the Committee may defer consideration of a grievance while a malpractice case is pending. For that reason, I often advise legal malpractice clients to hold off on a grievance until the malpractice case is resolved.
Any opinions stated in response to Avvo questions are based upon the facts stated in the question. Responses to Avvo questions are for general information purposes only, and should not be construed or relied upon as legal advice.
After you file your complaint with the State Bar of California, a State Bar investigator will typically send a letter to the attorney setting forth your accusations and ask the attorney to provide a written response within a certain number of days.
The State Bar will just close the file if there does not appear to be any ethical violations. However, if the attorney fails to respond at all, or if the investigator determines that the complaint has merit, the State Bar will take it to the next step. Many complaints typically take up to six months to complete an investigation. In particularly complex cases, the investigation could take as long as a year.
If charges are filed with the State Bar Court, the accused attorney must file an answer, or risk a default judgment and involuntary enrollment as an inactive Bar member pending the outcome of the case. The clerks in State Bar Court schedule a status conference (a meeting of all parties), to be held within 45 days. The next step depends on the individual case. There could be additional status conferences, settlement conferences, or simply the trial date.
In California, there are different levels of discipline ranging from private reproval to disbarment. Most disbarment cases involve more than one violation. Reproval, either public or private, usually is reserved for first-time offenders whose misconduct falls on the low end of the scale. Often times, an attorney is placed on probation so that his or her conduct in the practice of law can be monitored.
Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.
The attorney will respond in writing and the state bar will then decide if the facts warrant punishment.
As an attorney who handles attorney discipline matters, I think I must write to add that NOT ALL complaints will cause the procedural course of conduct by the State Bar that has been described here by the prior responders. The State Bar first reviews the complaint to determine whether it states the kind of allegations that the Bar is concerned about and responsible for resolving. A huge proportion of matters that are the subject of complaints to the State Bar do not meet this standard.
For example, the State Bar will not ordinarily open an investigation, require a response from the complained-of attorney, or take any action against a California lawyer except on issues raised by the California rules for professional Practice. The State Bar does not ordinarily review or investigate payment disputes, case results, amount of professional fees, individual professional actions (calling this witness and not that one, etc.), office policies (phone calls not returned promptly), terminations of attorney-client relationship, alleged bad advice ("told me to take the plea or it would be worse for me..."), and so many others that no comprehensive list can be even attempted.
Of course, almost any factual allegation is sufficiently extreme in nature may cause a State Bar investigation, but the ordinary course is that the Rules are the universe of expected regulation. It would be interesting to query the Bar as to the actual proportion of consumer complaints that cause an investigation or demand to the attorney for response. My expectation is that the number would be surprisingly low to many members of the Bar and, of course the public.
My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.