Consider this scenario: You really dislike your current job. One big reason is that your firm engages in questionable ethics practices and, thanks to that, you are now facing a state bar investigation.
So, how do you get out of this job while the investigation is pending?
The answer is not simple, but there are some best practices for trying to navigate this thorny issue. In the end, though, you may have to stay put until the investigation is over.
Major Considerations When a State Bar Investigation Is Pending
There are several important factors to take into account when applying for a new job or attending interviews while under investigation:
- Do you reasonably believe the investigation will lead to disciplinary charges? Assuming you are applying for a job where your license to practice law is a necessary qualification (i.e., you are not applying at Burger King), you must assess whether you are likely to be able to perform the job if it is offered to you.
- Does your potential employer have a policy on disciplined attorneys? If the employer will not hire people with a discipline history, and you reasonably believe the investigation is going to lead to disciplinary charges, this has to be taken into account.
- What stage is the investigation in? Timing is another factor to consider. Did you just receive the first inquiry letter, or did the state bar indicate it is filing charges? This plays into how likely it is that you will face discipline. For the cases that go to charges, about 90% in California result in actual discipline against the lawyer; many cases are settled before the filing of charges for actual discipline as well. On the flip side, thousands of complaints are closed at the investigation stage without any charges being filed.
You must dispassionately assess the likelihood of the pending investigation ultimately affecting your ability to take the job you are seeking. The more likely it is that you will have to leave soon after you begin the job, the stronger the argument that you should not apply in the first place.
The Honesty Factor
Your candor is critical in answering interview questions or pre-employment paperwork.
If you are asked in any pre-employment paperwork or interview whether any investigations are pending, you absolutely must disclose. Dishonesty in the process will not only get you fired as soon as it comes to light, but it is likely to get referred to the state bar for prosecution — dishonesty, particularly in the profession, is unacceptable.
Even if the employer does not hire you, if they learn that you lied to them when applying, the matter may be referred to the state bar. The bar can prosecute even though you never took the job in question.
Beyond lying in direct response to an inquiry, consider the dishonesty of the omission. Failing to tell the employer something that you know could wreak havoc on their hiring decision is not much better than the direct lie.
Plus, being upfront with the potential employer may work in your favor. No doubt, some will show you the door as soon as the words are out of your mouth. But it is better to know early on than to get hired and then fired for failing to disclose. Also, if the facts underlying the investigation are in your favor, you might not be shown the door. The employer may even be impressed by your candor.
If you are going to disclose, get some information to present to the potential employer. For instance, be prepared to give some details about the merits of the complaint. Also have statistics handy for how many complaints are filed in your jurisdiction, how many are prosecuted and how many result in actual discipline. Be prepared to explain — with hard facts — why the employer should still consider you while the investigation is pending.
When Should You Disclose a State Bar Investigation?
It’s easy to see that if you disclose too early in the process, your application will go in the proverbial circular file — especially if you aren’t the only candidate. So how long can you wait to tell the employer while ensuring you still fulfill your duty to be candid with them?
It depends a lot on the employer’s process for screening applicants. If ever asked directly, then absolutely disclose. Otherwise, there is a balancing act you must do. It may make sense to wait until you get in front of a decision-maker who will give you enough time to discuss the investigation and understand it. But you also want to ensure that the firm has not gone to great lengths to meet with you without knowing this critical fact. For instance, if they tell you they are going to fly people in from other offices to meet you, do not let them go to that trouble and expense without disclosing.
You will have to feel your way through the process to find the best time to disclose.
The impact of a pending investigation could well mean that you are stuck in your current job until the state bar tells you whether they intend to prosecute or close the investigation. It may feel like an eternity while you wait, especially if your job is terrible.
However, if your choices are to disclose and scuttle your chances of new employment or to lie by omission by not disclosing and risk later termination and bar prosecution, then waiting is a much safer option. Most bar investigations do not go on forever. Also, you can contact the bar investigator to put some pressure on if you explain that you are trying to leave your employment. This will be more effective in cases where the file is going to be closed on its merits. Of course, if the case is going to be prosecuted, you really cannot leave the employer for another anyway.
Think Long Term
Even though your job is miserable, when dealing with this complicated situation, it is best to think for the long term. The underlying complaint could be closed but you could face repercussions for the rest of your career if you are dishonest while the complaint is pending. Practice patience, and be willing to be candid or sit tight until the investigation ends.