Many of us have had anecdotal stories of unjust decisions by state bars that protect attorneys even in the face of point blank evidence of wrongdoing. Some have had actual experiences, and are aware of documented decisions affecting others, of state bar rulings with the same astonishing and unreasonable results. What’s the truth of the matter? How do state bars work?
As an example of state bar procedures, let me use the Arizona Bar as an example. “A/CAP” is the designation of the first level complaint handler whose function is to screen calls and deal with written complaints. “ER” is a reference to an Ethical Rule of Professional Conduct. The Bar can apply sanctions or dismiss the complaint, or submit the complaint to the supreme court attorney complaint committee (in the judiciary) for handling. It’s a two-step procedure. Here’s an email excerpt from a HOA member’s complaint, who had replied to the attorney’s answer..
“Following A/CAP’s final determination finding no violation of the Rules of Professional Conduct and trusting A/CAP has diligently prescreened the information provided bar counsel alleging a conflict of interest (ERs 1.7 -1.10) . . . [provided] written notice to the respondent lawyer of the nature of the allegation . . . [obtained] a response which is copied to the complainant for comment and/or response to the bar’s request for additional information . . . .”
Here’s the Bar’s response email:
The emails you provided do not warrant reopening the file [sic].
The HOA is represented by counsel. The country club is represented by separate counsel. If either of those attorneys thought there was a conflict, they would address the issue with each other and each of their clients.
This matter will remain closed [sic]. You are of course free to return my phone call if you would like to discuss the matter.
Please note the basis upon which the Bar apparently decided the issue: if the complaint were true, the alleged culprit attorneys would have addressed the issue in accordance with the Professional Rules of Conduct. But, isn’t that the nature of the complaint that they did not! And whenever did you hear of an attorney telling the HOA that it did or will do wrong? (ER 1.13). Enough said about the State Bar’s integrity.
In my personal encounter with the Bar, I came away with the same conclusion: whatever the attorney says is gospel truth, even if irrelevant. In my case, the attorney complained about being late on assessments for a few months, causing trouble by demanding answers from the board, etc. The attorney can do no wrong! Case closed!
It is understandable that professionals who deal with the public will be subjected to wild allegations by parties simply seeking revenge on their attorney’s failure to get his desired results. But, when the balance swings well over to protecting the attorney and not doing justice society has a problem. The courts have a serious problem with the integrity of the judicial process. The lack of integrity of public-private state bars to do justice and the failure of the oversight state supreme court to monitor the integrity of the state bar process is appalling.
In 2009 I did a detailed analysis of Arizona’s Bar complaint handling for all attorneys, not just HOA attorneys (Will your State Bar HOA attorney complaint get results?). It links to a detailed numerical analysis made more difficult by the sloppy recordkeeping by the Bar and supreme court.
Over 4 years only 15% of the complaints resulted in sanctions against the attorney.
Based on the large number of complaints filed and the nature of those complaints, one would reasonably expected a much higher percent of attorneys being sanctioned, especially HOA attorneys.