...even homeowner association attorneys!

October 21, 2007

By Donie Vanitzian (View author info)
Copyright Donie Vanitzian 2006

Dogged persistence is the key to filing attorney complaints.

Let's face it--attorneys don't want to be scrutinized! Not by the bar. Not by the public. Not by the courts. Not by the media. Not by their clients. Not by opposing counsel.

Someone once said, "talk is cheap until you hire a lawyer" or until you are FORCED to hire a lawyer. Start asking too many questions and lawyers will lawyer-up. That's followed by an invoice. Oops, strike that. Let me rephrase that. Followed by invoices, plural. I haven't met anyone yet who only got ONE invoice from an attorney. (See Glassman & Vanitzian, "Law Firm's "Rule of Three" Smells Fishy," L.A. Times, Aug. 17, 2003)

There is an element of performing an important public service when filing complaints against attorneys that have "acted improperly" (the Bar's words, not mine). Because, in my opinion, the California State Bar has failed miserably in policing its own, the public must take pains to make their sentiments known, not once, but over and over and over again without fail. One way to accomplish that is to file complaints with the State Bar against errant attorneys--and keep filing them.

Owners need to read these lawsuits and understand that win or lose, there is much to be learned from ALL suits the State Bar brings before the State Bar Court.

YES! SOME ATTORNEYS ARE EXONERATED

For example, in the Matter of Stanley Feldsott (Review Dept.1997) 3 Cal. State Bar Ct. Rptr. 754, a review was sought of a determination by the hearing judge that respondent Feldsott was not culpable in a single-count charge of violating Rules of Professional Conduct 4-100(B)(4) requiring that an attorney promptly pay, as requested by a client, any funds in possession of the attorney that a client is entitled to receive.

The court writes: "The sole issue in the matter before us involves respondent's [Feldsott's] rights to maintain his lien."

"The facts are not in dispute. John Daniels retained respondent in April 1993 to represent him in litigation against his homeowners' association for whom he had provided services as a consultant (consultant lawsuit). Respondent [Feldsott] and Daniels signed a retainer agreement under which respondent was to be paid a flat fee of $2,000 plus 25 percent of any gross recovery. The evidence shows that the agreement was discussed and that Daniels had a copy in his possession for two or three days before signing. Under the terms of the agreement, respondent was granted a lien to attach to any recovery in favor of Daniels, whether by judgment, settlement, or otherwise.

"Shortly before trial in the consultant lawsuit, respondent [Feldsott] moved the superior court for a continuance of the trial date and for permission to withdraw as attorney for Daniels due to his inability to get along with Daniels and unspecified ethical reasons. The superior court denied both motions, but suggested that the motion to withdraw could be renewed if the existing trial date was later vacated.

"On the day of trial, no courtroom was available, and the matter was continued for approximately four months. Thereafter, respondent [Feldsott] was substituted out as counsel, and Daniels retained another attorney.

"Respondent [Feldsott] then filed a notice of lien in the consultant lawsuit in the amount of $5,000. Although respondent had not billed Daniels, his time records indicated that on an hourly basis his fees would have exceeded $9,000.

"The consultant lawsuit was settled for $26,500, and a draft for that amount was issued on January 31, 1995, payable to Daniels, respondent, and Daniels's new attorney. The new attorney and Daniels requested that respondent [Feldsott] endorse the draft. Respondent indicated that he would accept $2,000 as attorney's fees, and when that was not acceptable to Daniels, respondent suggested alternate methods of handling the matter. He suggested having two checks issued: one for $21,500 to be issued to Daniels and his new attorney; and one for $5,000 to be deposited with the State Bar until the dispute was resolved, or to be deposited in an account requiring both signatures for withdrawal, or deposited in court. He further suggested binding arbitration or placing the money in a blocked account.

"Sometime before February 7, 1995, Daniels agreed to $5,000 being placed in a blocked account, but then failed to perform that agreement before its implementation, ostensibly on the grounds that a representative of the California State Bar advised him that he did not have to set aside any of the funds and that respondent [Feldsott] was obligated to endorse the draft, although in testimony he admitted the State Bar did not so advise him.

"Unknown to respondent [Feldsott], Daniels filed a malpractice suit against respondent on January 11, 1995 (malpractice lawsuit). Respondent first learned of that suit when an amended complaint was served on him in April 1995, following respondent's insistence on not releasing the contested $5,000 to the control of Daniels. Respondent promptly filed a cross-complaint in the malpractice lawsuit seeking the reasonable value of services he had provided to Daniels in the consultant lawsuit.

"The State Bar contends respondent [Feldsott] had a duty, under Rule 4-100(B)(4), to endorse the draft and deliver it into the possession and control of Daniels. They further contend that respondent's only remedy was to pursue his cross-complaint against Daniels in the malpractice lawsuit.

"Respondent [Feldsott] argues that his sole purpose in not endorsing the check was to preserve his lien rights and that unless $5,000 from the settlement draft was placed in an account not under the exclusive control of Daniels, he would lose not only his lien rights, but also his chance of ever satisfying any judgment he might obtain against Daniels. He further argues that $5,000 was the minimum he felt he would recover, and he was at all times willing to release the remaining $21,500 to Daniels."

The court went on to state that Mr. Feldsott's "fee agreement with Daniels expressly gave respondent a lien on any recovery Daniels may obtain in the superior court action, whether by judgment, settlement, or otherwise. That lien survived respondent's withdrawal from Daniels's employment to the extent of the reasonable value of the services respondent [Feldsott] performed before he withdrew. We find nothing in respondent's fee agreement that violated his high order of fidelity to his former client." The court then affirmed the "decision of the hearing judge as well as the award of costs to respondent."

WARNING: DON'T EXPECT ATTORNEY DISCIPLINE TO SHOW UP ON THE BAR'S WEB SITE

Owners checking the State Bar's web site for information regarding a particular attorney, would never have a clue how many complaints s/he has been subjected to, the types of complaints; whether there are pending complaints; or whether other disciplinary measures have been initiated against him or her and the reasons for the such discipline. The majority of attorneys on the Bar web site will show a "clean slate." It would appear most are Pillars of Society! Squeaky clean. Why is this? How would owners know if the attorney they are investigating has a "clean" record, or if s/he has been subjected to discipline? You don't know. You have to perform additional investigation BEYOND that of the State Bar. In that respect, the Bar has failed the public and all consumers.

On the other hand, owners who believe that their complaints to the State Bar don't matter, should pay close attention to this letter to me from the State Bar. I filed a complaint against an attorney for what I believed to be unethical conduct. It regarded an attorney whom I had never met. In fact I couldn't tell you what s/he looks like nor pick him/her out of crowd. BUT, I recognized something that seemed unethical, so I filed a complaint. After looking into the matter, the Bar sent me this:

"The State Bar of California has completed its review of your allegations of professional misconduct against [attorney name]. Based on our review and evaluation of all relevant circumstances, we have decided that your complaint is best resolved by issuing [attorney name] a warning letter as provided for in the State Bar's Rules of Procedure. The warning letter gives guidance and direction to [attorney name] intended to prevent the type of conduct you reported from occurring in the future. The warning letter will be kept in our file and MAY BE TAKEN INTO CONSIDERATION IN THE EVENT THE STATE BAR RECEIVES ADDITIONAL COMPLAINTS AGAINST [attorney name]. However, the warning letter is confidential and this disposition has not been disclosed to anyone except you and [attorney name]. It is not discipline and cannot be considered evidence of professional misconduct by other courts or in an employment application process. We appreciate your efforts in bringing this matter to our attention. We believe the issuance of this warning letter adequately addresses the conduct you brought to our attention."

Sounds pretty threatening to the complainant doesn't it? What are they afraid of? Being exposed? Embarassing the attorney, ass or otherwise?

Some have said that such letters only stay in the file for say, three, maybe six months and are then expunged. Others have said the Bar supposedly keeps these discipline letters in the file for an "unspecified" time. The letter above seems to intimate that such complaints may stay alive as long as complaints continue to pour in.

What IS clear is this: If owners don't file complaints it is a moot point how long such letters remain in a file.

YOU DO NOT HAVE TO HIRE THE ATTORNEY IN ORDER TO FILE A COMPLAINT AGAINST HIM OR HER

This means, if you believe that the association's attorney or the management company's attorney for that matter, has violated rules of professional responsibility, or some other statute, or has been unethical, you CAN file a complaint against that ass attorney or management company attorney with the State Bar. From the consumer's point of view, the worst that can happen is that the Bar informs you there is no case. But they will READ your complaint and consider it without charging you a fee. This appears to be one time where your tax dollars are at work, take advantage of it.

In another example of what I believed to be unethical attorney behavior, I filed complaints at the Bar regarding advertisements placed by attorneys or law firms that failed to state the name of a law firm or attorney responsible for placing the ad. I did not know these lawyers or their firms, I merely read their bogus advertisements in a magazine. In my opinion, were their adverts or solicitations Misleading? Yes. Deceitful? Yes. Unethical? Yes. I was told that when an attorney or lawfirm places a solicitation or advertisement ANYWHERE it must comport with the rules of professional responsibility and it must identify the attorney and/or the law firm IN that advertisement. I have never met, nor seen, any of those attorneys--BUT, after my complaint those same advertisements reappeared "rewritten" identifying the name of the attorneys and their law firms!

Remember, if the complaint has no merit, the Bar will write you back and tell you.

REGISTERING A COMPLAINT

Do not be intimidated. Do not back down. Just do it.

Obtain a complaint form from the Bar's website: www.calbar.ca.gov.

The California State Bar website states, "You should register a complaint with the State Bar if you believe that your lawyer acted improperly, but not just because there is some disagreement between you, or you believe he or she did a poor job. For such a disagreement, you should pursue alternative methods of settling attorney-client disputes, when available. ALL lawyers who practice in California must live up to ethical standards imposed by the California Supreme Court and the State Legislature. As an arm of the California Supreme Court, the State Bar investigates and prosecutes complaints against lawyers."

That write up is important. Notice that the Bar's writeup states "YOUR lawyer." They do not inform the public that ALL LAWYERS can have a complaint filed against them whether they are YOUR attorney or not. As you read above, I complained about an attorney I never met and never hired.

You can also report a disbarred or suspended lawyer who continues to practice law after the Bar told him or her they could not. They could be sited for practicing law without a license. Management Companies whose employees give legal advice and who are NOT licensed attorneys can also be turned into the Bar for practicing law without a license. The Bar is the watchdog, its time they performed. In order for the Bar to perform, you have to file a complaint.

Many people think that filing a complaint at the State Bar is a big complicated process-- it can be if you let it. Others are not hopeful of a favorable result because of their own experience with the Bar or because of all the bad rumors they've heard so they give up before they even try. Others are just plain "afraid" of the Bar and do not relish confrontation with the attorney they are complaining about.

ARE YOU THE ATTORNEY'S NEW BEST FRIEND?.

For every complaint against an attorney that does NOT get filed, you become that attorney's new best friend.

What are you waiting for? A bus? When asked if they filed a complaint at the bar, some owners say "I don't know how." "I'm waiting to file a law suit first." Or, "I'm thinking about it," "I was waiting for all of this to end, and then I was going to do it." Or, "How do I do it, I don't know how to file a complaint with the Bar." The most common response is simply, "no." These owners have one thing in common: they continue to moan and complain about attorneys but are slow to act, act only when it is too late, or never act at all. But the classic response for not filing is: "You don't understand."

Basically, reasons for not filing complaints against ass attorneys typically amount to a combination of fear and laziness on behalf of the owner. Understandably exhausted from the ordeal leading up to even "considering" the filing of a complaint in the first place, one's hands go up in the air, the file goes in a bottom drawer or in the trash, and such lawyers make a slick getaway.

Waiting to file a complaint at the Bar does not make the situation better. Waiting to file is not the same as waiting for a fine wine to age.

"Waiting" MAY prejudice you or if there is a statute of limitations, it may run out. Though not referred to in these terms at the Bar, an unspoken inference might be, you waited so long YOU LOOK GUILTY. "What took you so long to complain?" "Why did you stay with your attorney if you were not happy?" "Why didn't you make your displeasure known to your attorney early on?" "Did you ask your attorney for a refund?" "Why didn't you fire him?"

SOME POINTERS. . .

Before you file anything with the Bar, you need to KNOW what your complaint is!

Too many people merely sit down and throw-up on paper or write a "rant" with every complaint they had for against their attorney for the two years they paid him or her. A "rant" doesn't always amount to a "Bar Complaint." You're not writing a screen play with he-said, she-said, you're filing a Complaint. Remember, you may have lived your case with that attorney for five years, but this may be the "first" time the BAR is reading YOUR complaint--even though they may have read others. If you're weaving in and out of traffic, don't expect a "jump start" into the fast lane. You need to "pick a lane."

1) Prepare a working outline just for you to list the problems chronologically--and the result of each problem.

2) Extract the issues as you see it from each of those problems.

3) Then, look up the corresponding Bar-related rule or statute that you believe the attorney violated. If you are unclear "exactly" what those laws are that were violated, that's ok too because the Bar will know. It is just helpful to put it in the complaint if you can.

4) Make your complaint easy to read. Use as many sheets of paper as you need, but number the pages and be sure to include your name on every page.

5) The Bar's website states, "when you register a complaint, you should supply photocopies of any papers, such as letters or canceled checks, that relate to the problem." (This means, from the beginning, you should try to stay organized during your ordeal).

6) Reference in the complaint form, that you have "attachments" and the approximate page count. You do not have to send the Bar EVERYTHING. If they want or need more from you, they will likely ask. PLEASE: Keep an exact duplicate of what you file with the bar.

7) The important thing is to lodge your complaint in a timely manner.

8) The web site also explains that the "State Bar will let you know by postcard that your complaint form has been received. Your complaint will then be input into the computer system. A State Bar lawyer will read your complaint and determine how the complaint will proceed. This process can take from two to three weeks. Your complaint will then be assigned to the person that will conduct the investigation. You will be informed of its status by a State Bar representative." (Note: If you have filed more than one complaint with the bar, know that the post card(s) do not NAME the attorney you complained about, so there may be confusion which post card number applies to the various attorneys you may have complained about).

9) Do not be intimidated by the Bar! You can challenge any decision the Bar makes regarding your complaint. Even if the Bar rejects your complaint, you can send it back with new or additional information and ask that it be reconsidered. If they make another determination on your complaint you can also appeal that. You can challenge these decisions merely by stating on a piece of paper, simply, that you want to appeal the Bar's decision and request that it be sent to their panel for reconsideration. If you still have questions, the Bar will explain to you how that is done.

10) There are no limits on the number of complaints you can file at the bar against an attorney or several attorneys or an entire lawfirm.

TRY TO KNOW THE RULES WHEN WRITING OUT YOUR BAR COMPLAINT

Most rules that govern the actions of attorneys are found in the California State Bar Act (Business and Professions Code 6000 et seq.) and Rules of Professional Conduct.

Download the State Bar Act:

http://www.calbar.ca.gov/calbar/pdfs/ethics/2006_State-Bar-Act.pdf

Download the Rules of Professional Conduct:

http://www.calbar.ca.gov/calbar/pdfs/ethics/2006_Rules-Prof-Conduct.pdf

Download a complaint form:

http://www.calbar.ca.gov/calbar/pdfs/DispComp.pdf

Contact the State Bar:

1-800-843-9053 (toll free in California)

1-213-765-1200 (from outside California)

A QUICK WORD ABOUT THE AMERICAN BAR ASSOCIATION

"Defending Liberty - Pursuing Justice" is the motto of the American Bar Association. Owners are not limited to filing a complaint only at the State Bar, you can also file a complaint with the American Bar Association (ABA) (http://www.abanet.org

The ABA has a "Directory of Lawyer Disciplinary Agencies" for every state and outside of the United States as it pertains to licensed American attorneys. Visit http://www.abanet.org/cpr/regulation/scpd/disciplinary.html

They're website also has a section called "Center for Professional Responsibility." There is a sub-heading titled "Information on Professionalism and Ethics in Lawyer Advertising" They offer a free article on the "Differences between State Advertising and Solicitation Rules and the ABA Model Rules of Professional Conduct."

Visit http://www.abanet.org/cpr/professionalism/home.html

Lawyers and other professionals such as law students and law clerks can contact the ABA to find the right resource to help resolve questions regarding "ethics."

NOTES: First published October 13, 2006