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On Balance

Surviving a Bar Investigation During the COVID-19 Crisis

By Megan Zavieh

A bar investigation is awful anytime it happens. I tell members of the public who are considering a bar complaint not to expect much satisfaction on the witness side since investigations are confidential. They won’t know much about what happens to the lawyer unless public charges are filed, but they can be sure the attorney’s life will be turned inside out while the investigation is pending. (This is part of my speech on why they really should reconsider many planned bar complaints.) I see it in my clients all the time: A bar complaint impugns your integrity and upends your professional (and at times personal) life.

On Balance by Megan Zavieh

Read more from Megan Zavieh here.

It does not get much more stressful than that.

On what seems like an unrelated note, COVID-19 has upended our lives. We live with more chronic stress and uncertainty than probably any time in our lives. If you are responsible for others — parents, children, spouses, for example — then the stress is exacerbated.

Now consider what it feels like when you combine the two. It is unbearable.

State Bars Are Not Shut Down

When COVID-19 first hit, it seemed that the world ground to a halt. Offices everywhere were closed, and it may have been true of your state bar. At this point, however, just about everyone has found a way to get back to work, and regulators are no exception. The profession still needs oversight, and the overseers are ensuring the work is done.

State bars are also in a tizzy, now grappling with new graduates and bar exams, but also working on a backlog of court cases and other disciplinary matters. They are working fast and furious.

So, if you knew a client was disgruntled and were just hoping the bar would not be looking into it yet, you can assume otherwise.

New Pressures

Bar complaints are always stressful. There are distractions that keep you from work, secrets to keep from staff (many attorneys choose not to tell staff what they are facing), and extra funds to pay. Keep in mind that bar prosecutions can lead to both attorneys’ fees for your defense and costs payable to the state bar for the privilege of having been prosecuted. Depending on your state, you might also face monetary sanctions beyond the costs.

But the pandemic adds its own layer of stress.

  • Working remotely. Most lawyers are still working primarily remotely and not back in their physical offices. Having to respond to a bar complaint that requests your files may be a challenge. It may be that all you have to do is go to the office, but that may not be simple. The bar is also working remotely, so they may want you to email your response and documents. If you are not already paperless, that could mean a big job on your end.
  • Finances. Many lawyers have suffered a real downturn in business during COVID-19. Personal injury and DUI lawyers come immediately to mind, but many others are suffering as well. If your income is tight, it can add tremendous pressure to have to pay for defense counsel and possibly face costs and sanctions.
  • Overall stress level. As noted above, everyone is suffering more stress. Combining a bar complaint with COVID-19 may feel insurmountable.

What to Do When You’re Under State Bar Investigation

If you find yourself juggling pandemic stresses and a state bar investigation simultaneously, do not rush through the process and risk greater harm to your reputation and license. Take your time to think through the problem; do not react quickly or emotionally. Ask for reasonable extensions.  If an extension is up and you honestly need more time, ask for it. Though “COVID is impacting my life” is an excuse that is starting to fall a bit flat, it is also valid. Many individuals are sympathetic to it.

Consider how much you can afford to — or should—invest in the problem. For some investigations, hiring counsel is a no-brainer. If the bar is pursuing an investigation that you can see upfront is likely to lead to significant sanctions, such as suspension or disbarment, do not pinch pennies on your defense. You may soon be out of a job.

Share the burden of your bar complaint. Many talk about whether to tell their spouse (a resounding yes, in my opinion) or older children (a much bigger question for many). Let your staff, or at least a few trusted team members, in on the issue and get them to assist you. Confide in a lawyer friend. It is never wise to approach a bar complaint solo, but in these extra stressful times, having a support system is that much more critical.

Finally, prepare yourself for new and changing processes and procedures. As courts evolve to Zoom hearings, regulators may also be meeting remotely or implementing other new procedures. Try to find out what those are. It is better to be prepared than be caught flat-footed when you get a Zoom invitation from a bar investigator. Preparation alone reduces stress.

Photo by engin akyurt on Unsplash

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Megan Zavieh Megan Zavieh

Megan Zavieh is the creator and author of “The Playbook: The California Bar Discipline System Practice Guide.” At Zavieh Law, she focuses her practice exclusively on attorney ethics, providing representation to attorneys facing disciplinary action and guidance on questions of legal ethics. Megan is admitted to practice in California, Georgia, New York and New Jersey, as well as in multiple federal courts and the U.S. Supreme Court. Her latest book, “The Modern Lawyer: Ethics and Technology in an Evolving World,” (ABA 2021 ) covers how to run a modern practice while staying in line with current ethics rules. She podcasts on Lawyers Gone Ethical, blogs on ethics at California State Bar Defense and tweets @ZaviehLaw.

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