Being on the receiving end of a state bar complaint and sanction is awful. It’s painful, it’s public and, frankly, it’s humiliating. Unfortunately, that’s something I know from personal experience.
An Ethics Sanction Needn’t Be a Professional Death Sentence
That is, not if you don’t allow it to become one.
Understandably, few attorneys want to talk about their experience with the disciplinary process, even though it’s not as rare as some might think. My home state, Iowa, has disciplined an average of 68 attorneys (just under 1% of the number of practicing attorneys in the state) each year over the past decade. A rough extrapolation would suggest that perhaps thousands of attorneys across the U.S. find themselves in this situation each year.
Improvement comes through reflection and examination. So, I’m putting my experience and reflections together here precisely because life — including professional life — goes on even after bad things occur.
Here’s My Story and Perspective
I’m an Iowa-based attorney and CPA. In 2006, I introduced a few of my clients to another client of mine who was an entrepreneur and deal promoter. In doing so, I failed to obtain a signed conflict waiver from one of my clients. I had talked through the need for the written waiver with that client, but I dropped the ball and never actually got it done.
That would prove to be a very costly error. The Iowa Rules of Professional Conduct contain a very full section on conflicts of interest, and I didn’t follow every part of it with sufficient care. The promoter client lost the money he raised from my other clients, and one of the investor clients, the one without a signed waiver, subsequently filed a state bar complaint against me.
The State Bar Complaint Arrives
My first knowledge that a complaint had been filed came by certified letter in 2012 — six years later — from the Iowa Supreme Court Client Security Board, which is charged with policing the professional interactions of Iowa’s 7,500 attorneys.
Getting that letter is a lot like when a taxpayer gets an audit notice from the IRS. Your pulse quickens because certified mail from a government agency usually means something serious and rarely good.
My first reaction as I read the letter was to flail through the fog of memory for the specifics of the matter referenced. As I pieced together memories of my actions six years previous, I began to tell myself, “I didn’t do anything intentionally wrong. I can deal with this.”
Reality Sinks In
Of course, that wasn’t the view of the Client Security Board, or they wouldn’t have sent the letter. It dawned on me that I needed legal counsel for this legal proceeding. After procuring counsel and discussing my case, I had an “oh, no” moment: This was very serious.
In Iowa, the Client Security Board acts as a quasi-criminal body — and, in effect, accused attorneys are treated more or less as any criminal defendant would be. For instance, you don’t have the right to claim Fifth Amendment protections for yourself, and at the same time, attorney-client privilege may prevent you from introducing certain facts and circumstances into the process.
And it’s a whirlwind from there. A long, intense whirlwind.
Possible Penalties
The possible penalties the Client Security Board can hand out are: a private reprimand, a public reprimand, significant practice suspensions or disbarment.
My attorney said he thought I’d get a reprimand. But my attorney was wrong.
On January 27, 2017, five years from the filing of the complaint and 11 years after my failure to get the conflict waivers signed, I got a 60-day suspension from practicing law in the state of Iowa, effective immediately.
What a Suspension Meant
A suspended attorney must withdraw from all cases, which means you must affirmatively communicate to all your clients what’s going on and what their options are for their representation. It’s a very humbling process. It’s a public determination, of course. For most attorneys, a state disciplinary action isn’t exactly front-page news. But when you write a letter telling your clients you’ve been suspended from practicing for 60 days, it’s visceral and inescapable. I had clients with pressing legal and tax matters and had to scramble to find an outside firm to handle their needs.
(State rules will vary, but you must also report a state bar sanction to other entities and states where you are licensed. See “Who Needs to Know I Got Sanctioned?“)
That wasn’t the end of trouble from my client relationship with the deal promoter, either. He filed a 2016 ethics complaint against me as well, over essentially the same matters from a decade earlier. The Client Security Board found he had no grounds. However, they did claim that another conflict waiver was incomplete. This time the waiver would have been from a non-complainant, non-witness who did not want to participate and would not waive attorney-client privilege. But the lack of the attorney-client waiver meant I was prevented from proving the conflict waiver wasn’t in fact lacking, and that I had made full disclosures.
So, back to the professional woodshed I went, this time for 30 days.
Powerful Lessons From the Ethics Complaint and Suspension Process
It’s a miserable process for anyone to go through, but I learned some powerful lessons from the complaint and suspension. I hope these lessons help someone, somewhere, prevent problems in the first place, or at least help to overcome the experience.
- First, fight like hell. It’s your professional reputation and livelihood on the line. Don’t assume that you’re going to feel fairly treated by the process or that the state or your bar association wants a rehabilitative educational outcome. They’re there to punish and set examples. You don’t want to be the example.
- Second, fail to document your client interactions at your peril. Maybe people in other professions can be sloppy and get away with it. Attorneys can’t. Document more than you ever thought you needed to about your work. Document with this mindset: If the worst possible outcome happens for this client, what will I need to protect myself?
- Third, there may be no statute of limitations for these kinds of complaints. I got penalized that second time for a documentation failure from 13 to 15 years ago. Keep your records for six or seven years? No. In this digital age, you can scan and keep in perpetuity. Full stop.
- Fourth, it’s imperative that you know in your core who you are. Even if you make mistakes as I did, remember you’re a good person with a strong personal and professional code of ethics. The shame I feel, in light of how serious I learned the bar considered the offenses, is that I failed to get those critical conflict waivers signed and that my documentation efforts were not complete. But am I ashamed of myself as a human being? I’m not. I made professional mistakes. I was punished professionally for them. I learned hard lessons about attention to detail, documentation and toeing a clear line.
- Fifth, mentally steel yourself: The sanctions may affect prospective clients’ perceptions of you. Sometimes you’ll have a great first meeting with a potential client, but in their diligence, they will come across an obscure headline or a public filing with your name and sanction in it. If concerned, most prospective clients that felt you were right for them will ask you about it, work to understand it and be fine with it. But once or twice a year, someone won’t. You will be frustrated and forced to relive it all again. But you will learn to deal with that frustration. Because it’s part of your story now — a part of you. It is a catalyst that made you more cautious, more fastidious and, overall, a better lawyer.
Final Lesson: Better Days Are Ahead
Stay true to yourself and your practice, believe in yourself and seek and find people who believe in you. It bears repeating that life goes on even after bad things occur.
Related Reading: “Recovery After State Bar Discipline” by Megan Zavieh.
Illustration ©iStockPhoto.com
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