Take a look at the letter you received. Is the complaining party a client or non-client? While you have a duty to cooperate with the State Bar in its
investigation under Business & Professions Code Section 6068(i), you also have a fiduciary duty to maintain client confidences and secrets under Business &
Professions Code Section 6068(e)(1) and Professional Rule of Conduct 3-100. Where the complainant is opposing counsel or the court, your ability to respond
may be constrained by your duty of confidentiality to your non-complaining client. However, isn't a complaint by an opposing counsel in an ongoing matter almost
inherently suspicious? You also have Fifth Amendment rights and the exercise of these rights cannot be used against you in any proceeding.
Think about the history of the case and ask yourself this, "Why now?" What transpired in the past couple of months to cause someone to initiate the complaint? Maybe a client decided you should accept a reduced fee because he didn't recover as much at a mediation as he wanted even though the client agreed to the deal, or opposing counsel is upset over your trial tactics. There is always a reason why the complaint is being made now and more often than not this is the key to resolving the matter.
Occasionally, the State Bar will actually call you on the telephone. No, you are not being pranked and this actually happens. Be careful what you say and do not ask the investigator for advice regarding another little matter, unless you want the "little" matter to be included in a more formal investigation. Remember the legendary law school tale of Ernesto Miranda in Phoenix, Ariz., "Anything you say can and will be used against you..."
Although the State Bar is obligated to investigate credible inquires, take solace in knowing that the overwhelming number of complaints are closed without any action
taken. Some complaints may be closed without the attorney even being made aware of the complaint, as where the complaint clearly demonstrates that it is generated by a crackpot.
Write your response. Read it, then rewrite it three more times. Have a couple of friends read your response and rewrite it again. Have you closed one door only to open another? Do you sound defensive, righteously indignant, arrogant? Are you telling the State Bar about all your good pro bono good deeds as if they were an
antidote to your failure to promptly pay out client funds? Be careful in responding to your own inquiry. Be certain that the facts are correct
because although you may consider an error to be a mere mistake, "false representations or evidence presented in a State Bar proceeding constitutes serious
misconduct warranting discipline." Lebbos v. State Bar (1991) 53 Cal. 3d 37. It is a good idea to have someone else sign the response, because if a mistake is made it is not tantamount to being an admission against interest, which is possible if the response is self-drafted.
The State Bar is an amalgam of civil, administrative, and criminal procedures, which makes for a trap for the unwary. You have spent many years of your life going
to law school and building a practice. You have invested a lot of money in your career over the years. You may be thinking that you can save a few thousand dollars by handling the matter yourself and that it will go away if you just tell your side of the story. Remember, the Office of Trials consists of full time dedicated prosecutors, and we are their targets.
The transmission of information from Stephen Strauss at statebardefense.net to or from you is not intended to create nor should you expect it to create an attorney-client relationship between Stephen Strauss and you. The information contained herein does not constitute legal advice, and the reader is not entitled to rely upon it. None of the communications transmitted in connection with this website are intended to constitute a confidential communication. Contact with Mr. Strauss does not create any duty to maintain your information in confidence. Copyright 2016. Stephen Strauss Attorney at Law. All rights reserved.