Lawyers are the backbone of a just and fair society. They fight for social justice, protect rights, and help people through times of crisis. Yet, lawyers face their own struggle for justice in the form of overreaching regulatory authorities acting within systems stacked against the accused.
Thousands of lawyers every year find themselves up against their state bar, being accused of ethics violations and facing threats of suspension or disbarment. (Approximately 18,000 complaints are lodged every year in California alone.) While some bar complaints are perfectly valid, many prosecutions do little to serve the public good while forcing lawyers to fight for their ability to continue practicing law. For example, one lawyer was prosecuted through to trial for withdrawing client funds that belonged to her—when the prosecution had only a one, not credible witness claiming the conduct was not authorized. She was exonerated at trial after spending $15,000 in attorney’s fees and months of her life defending herself. Another example is repeatedly investigating a lawyer for the same conduct by way of a complaint from the same client, finding each time that the lawyer had done nothing wrong, but repeatedly investigating nonetheless. That lawyer paid several thousand dollars in defense costs.
The stakes are incredibly high when the bar charges misconduct. Many bar complaints come from simple failures to communicate between lawyers and clients, and yet the State Bar typically charges the lawyers with failure to act competently and committing acts of moral turpitude. The charges are often so overreaching that the lawyers have no choice but to fight them. After all, no one wants to admit to something they did not do, especially when the sanctions can kill a career. The typical outcomes are suspensions from practice—and that can end a law firm for a solo practitioner.
Solos are frequent targets of the bar. Many operate on shoe string budgets, and when a bar complaint is filed against them, they have difficulty hiring counsel to assist. Thinking they can handle defending themselves, many try. Unfortunately, the discipline system, particularly in California, is a very confusing place to be. Basic rules that are applied in civil and criminal court do not apply in attorney discipline cases. The irony is that principles lawyers fight to uphold for their clients don’t apply when lawyers are the ones being prosecuted. For example, the rules of evidence do not apply to attorney discipline trials. Procedural rules that do exist are not strictly enforced. It is a virtual Wonderland, where things are not always as they seem. The confusion leads self-represented lawyers to make costly mistakes when their licenses are on the line.
For California lawyers who face the discipline system on their own, there is a new resource available. It’s called The Playbook: The California Bar Discipline System Practice Guide (From investigation through appeal, the pro se attorney’s comprehensive interactive guide to Wonderland) is now available here. It is designed for the lawyer otherwise capable of defending herself but who is not familiar with the world of state bar discipline defense. It walks lawyers through the system and the rules, demystifying the process and providing guidance and sample filings. It highlights unexpected pitfalls such as not being able to refuse to testify against yourself, the likelihood of being found culpable for violating several statutes by a single act, and the practice of being charged with multiple acts of misconduct for what any rational person would view as a single act.
The Playbook is presented as an interactive PDF on a members’ only website. The interactive nature of the resource makes it simple to navigate through volumes of original material and appendices, and the web access ensures that members always have the most up-to-date version of the constantly-updated material. It also contains access to over 50 sample filings in California State Bar Court, with an ever-growing library evolving over the first few months.
The Playbook’s member site also contains message boards, to which members can post and have discussions with other self-represented lawyers facing discipline charges. The need for this segment of the lawyer population to commune with each other is great, and The Playbook is the first resource to address this need.
It is critical to understand the sheer volume of attorney complaints and the dire consequences for lawyers caught in the system. It is also important to understand that with this volume, a great many of the complaints are absolutely baseless. Lawyers against whom complaints have been filed should not be ostracized. And those who plan to represent themselves should know to look for something to help guide them through the discipline process. The Playbook is the first tool to help them do just that. We’re starting in California because of the sheer number of complaints filed there every year. However, we hope to expand the project to more states in the future.
Megan Zavieh is a state bar defense and general ethics lawyer focusing primarily on California. Her passion is empowering lawyers to defend themselves in ethics investigations and prosecutions. She is admitted to practice in California, New York, New Jersey and Georgia, and she is a frequent contributor to Lawyerist.com and AttorneyatWork.com.