The First Indemnity Professional Liability Blog

Posted By: John Randolph

The reality is that most attorneys don't think about the disciplinary process until they are in it, and by then, it's too late. That's why you should know the process, understand the risks, and protect yourself now.

Common types of ethics complaints

While intentional malfeasance makes headlines, the majority of ethics complaints against lawyers come from run-of-the-mill problems, according to the ABA Journal. These include:

  • Failing to properly communicate with clients, such as not returning phone calls promptly or not sending written termination letters.
  • Disputes over fees, often because the attorney's fee agreement wasn't disclosed in writing to the client.
  • Bouncing a check. The laws regarding IOLTA (Interest on Lawyer Trust Accounts) are complex, and funds are easy to mishandle. If that happens, it triggers an automatic discipline report in some states.
  • Conflicts of interest. This can be especially tricky for firms with multiple partners who fail to communicate with one another.

What happens when a complaint is filed

Disciplinary proceedings vary by state. Many process complaints through a State Bar. Others do so through a court of law, while others use statewide grievance committees or offices. And while each state's processes differ slightly, there are common themes.

Once you receive a notice of complaint, you must respond. If you fail to do so, a disciplinary action could be made against you by default. After you respond, the disciplinary board will proceed as needed. Steps could include continued investigation, the issuing of subpoenas to review case files, and/or depositions. The disciplinary board will then take action, which may include a letter of caution, a private reprimand, or the filing of formal charges of misconduct, the latter of which could lead to censure, suspension or disbarment.

How to protect yourself

If you receive a disciplinary complaint, you will not be able to stay objective. You will need to hire outside counsel to represent you.

Whether you're a solo practitioner, an associate or a partner in a mid-size or large firm, you should also be proactive. Make sure your firm's professional liability policy includes disciplinary proceedings coverage. It will provide coverage for any inquiry or proceeding by a regulatory or licensing board, peer review committee, disciplinary official or state/federal agency for any charges alleging misconduct. It will not cover any fines, penalties or sanctions made by a disciplinary board against an attorney.

I advise lawyers to look for disciplinary proceedings coverage with a $50,000 limit. That limit is separate from the existing policy limit. Look for coverage with a broad definition of a proceeding, which means it may pay $50,000 per proceeding and/or up to $100,000 for all proceedings within a calendar year.

No matter how ethical or detailed-oriented you are as an attorney, avoiding any and all disciplinary proceedings can be near impossible. By understanding your state's disciplinary process and obtaining proper coverage, you will reduce your personal stress and be well prepared to defend your license if needed.

Andrew Biggio is the founder and president of First Indemnity Insurance Group, which provides professional liability insurance for attorneys, tax prep accountants, CPAs and bookkeepers. First Indemnity is headquartered in Lynn, Massachusetts (near Boston), with additional offices in New York, Chicago, Dallas, Los Angeles, Philadelphia and Tampa, Florida.