Oh No! A Letter from Bar Counsel…

What To Do If You Receive a Letter from Bar Counsel

According to its Annual Report, the Attorney Grievance Commission sends out roughly 2,000 complaint letters each year. Approximately 75% of these initial inquiry letters are dismissed after receiving a well reasoned response. All too often however, matters that might have been promptly resolved with a good first letter go awry, and the attorney becomes deeply embroiled in the troubled waters of the attorney disciplinary process. The cause of this additional pain and anguish is often attributable to what Bar Counsel dubs a “BFL,” or “bad first letter.”

A typical BFL attacks the Complainant, the Court, Bar Counsel, or all three. The classic BFL usually fails to respond appropriately to the issues posed, and usually contains gratuitous and sometimes damning information which expands the scope of Bar Counsel’s inquiry.

The recommended course for any lawyer unfortunate enough to receive a complaint from the Attorney Grievance Commission is to report the matter immediately to their professional malpractice carrier. While some policies provide no coverage for Bar complaints, the vast majority do cover disciplinary actions with no deductible obligation. The level of coverage afforded by different insurance companies can vary widely, and you should therefore consult with an insurance broker experienced and well versed in this field.

The most appropriate response to a letter from Bar Counsel, or a disciplinary complaint, is to set forth the relevant facts clearly and concisely and to explain why the conduct complained of is not disciplinary in nature. Good response letters deal effectively with every issue raised, but do not contain extraneous matters or inadvertently raise new issues. Certainly a good response should never insult the person filing the complaint, the Bar Counsel, or anyone else involved. The response should be objective and demonstrate a high degree of professionalism and propriety. Hastily written, sloppily edited letters do not enhance a lawyer’s chances of having a complaint dismissed.

For those who do not have professional negligence insurance, and are not willing to consult an attorney experienced in the field, it is recommended that you first let the matter sit for a day and give it some thought. Pull the related file and carefully review it to make sure every statement made to Bar Counsel is factually accurate. Answer only what is being asked and volunteer nothing extraneous. Keep in mind the fact that Bar Counsel is fielding over 2,000 complaints a year, but will review carefully everything that you send. Accordingly, concise responses are appreciated. Secondly, let your response sit for a day and then carefully review it as objectively as possible. Feel free to share it with a colleague whom you respect and trust, confident that your communication will be privileged under either Rule 1.6 or 1.18.

Consulting an attorney experienced in the area is always the recommended approach. An attorney well versed in the field will understand and appreciate what Bar Counsel is looking for in the response, from the standpoint of both style and substance. Many attorneys inadvertently raise facts or issues that create concerns beyond the initial complaint. Stated simply, they put their foot in their mouth without even realizing that they are expanding the scope of the inquiry. Experienced counsel will insure that you do not inadvertently step into one of these pitfalls, and will educate you where appropriate as to how you should alter your current practice.