6 Tips for Responding to a Bar Investigation in a Pandemic

Don't respond emotionally or hastily.

It’s never fun to be the subject of a Bar investigation, but when it happens in a pandemic it’s even worse.

State bars haven’t shut down, though most have gone remote. Lawyer disciplinary departments are still receiving – and investigating – reports of misconduct. In fact, COVID-19 has created a climate of fear, frustration and anxiety that may make clients more likely to file a Bar complaint.

“State bars are in a tizzy, now grappling with new graduates and bar exams, but also working on a backlog of court cases and other disciplinary matters,” says California attorney Megan Zavieh, who represents lawyers in licensing and disciplinary proceedings. “They are working fast and furious. So if you knew a client was disgruntled and were just hoping the bar would not be looking into it yet, you can assume otherwise.”

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“Bar complaints are always stressful,” writes Zavieh in this article for Attorney at Work. “There are distractions that keep you from work, secrets to keep from staff (many attorneys choose not to tell staff what they are facing), and extra funds to pay. Keep in mind that bar prosecutions can lead to both attorneys’ fees for your defense and costs payable to the state bar for the privilege of having been prosecuted. Depending on your state, you might also face monetary sanctions beyond the costs.”

Here are some key takeaways from Zavieh’s article:

  1. For a lawyer facing a Bar complaint, the pandemic adds a whole new layer of stress. “Most lawyers are still working primarily remotely and not back in their physical offices. Having to respond to a bar complaint that requests your files may be a challenge. It may be that all you have to do is go to the office, but that may not be simple. The bar is also working remotely, so they may want you to email your response and documents. If you are not already paperless, that could mean a big job on your end.”
  2. The financial burden might be crippling. “Many lawyers have suffered a real downturn in business…. If your income is tight, it can add tremendous pressure to have to pay for defense counsel and possibly face costs and sanctions.”
  3. Don’t react hastily or emotionally. “Ask for reasonable extensions. Though ‘COVID is impacting my life’ is an excuse that is starting to fall a bit flat, it is also valid. Many individuals are sympathetic to it.”
  4. Don’t be penny-wise and pound foolish. If the allegation is minor or clearly without merit, you might be able to handle it on your own. But if it’s serious and the consequences may include suspension or disbarment, follow the advice you give your own clients: hire a lawyer.
  5. Avoid the denial trap. Don’t make the mistake of ignoring the complaint or pretending it will go away. Deal with it. This is not always easy. Receiving a bar complaint is frightening, stressful and embarrassing. Zavieh suggests sharing your feelings with someone you trust, starting with your spouse. “Let your staff, or at least a few trusted team members, in on the issue and get them to assist you,” she writes. “Confide in a lawyer friend. It is never wise to approach a bar complaint solo, but in these extra stressful times, having a support system is that much more critical.”
  6. Know the process. “Prepare yourself for new and changing processes and procedures. As courts evolve to Zoom hearings, regulators may also be meeting remotely or implementing other new procedures. Try to find out what those are. It is better to be prepared than be caught flat-footed when you get a Zoom invitation from a bar investigator. Preparation alone reduces stress.”

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