I love the “Lawyers Behaving Badly” podcast. The show’s premise is the hosts’ love of professional messes. They excel at finding true stories about dumb lawyers. Each episode has me shaking my head, thinking to myself, “How could somebody think THAT was OK?”
The most recent episode details a dispute between “Larry Lawyer” and “Pot Paralegal” and various complaints to the state bar. Larry and Pot were competitors in the cannabis business. The hosts discuss Larry’s interactions with the Pot Paralegal, judges, and Larry’s responses to the bar’s inquiry.
My personal favorites were Larry’s choice to ask a judge if she was going drinking and requesting a 1,095 day extension of time to respond. Yes, he asked for three years.
While humorous, Larry’s unreasonable request for an extension demonstrates that he knows it is only a matter of time before he has to face the consequences. But his conduct and the podcast highlight some of the strategies we employ when responding to inquiries from bar counsel.
According to the podcast, Larry’s response to the state bar contained many attacks on Pot Paralegal. A response to a bar complaint should almost never attack a client or third party. When we respond to inquiries, we focus on our client’s actions and choices, and the overall facts of the case. We do this because experience has taught us that bar counsel does the same.
Bar counsel understands that clients are often not sophisticated and that litigation can be a major source of stress. Lawyers, however, are expected to understand the stress of a case and should not take their stress out on a client. Clients and third parties get leeway that lawyers do not.
Lawyers who are the subject of a complaint do not always understand the need to be respectful to the client in the response.
Preparing a substantive response that explains the matter without painting the client is worth the effort. We can challenge the underlying facts and allegations from the client using the documents in the lawyer’s file to rebut allegations without resorting to name-calling or pejorative language.
We avoid using the same flowery language often used in pleadings when attacking an opposing lawyer’s position. We focus on facts and show respect for the process.
Respecting the process does not mean deferring to the complainant’s version of events or avoiding saying the client is incorrect. We routinely state the facts relayed by the client are not accurate if warranted by the facts. If needed, we go farther, and we include a section with a point-by-point response, along with documentary exhibits.
In so doing, though, we try not to use the words “lying” or “misrepresenting.” We don’t want to be disrespectful. It simply doesn’t work.
There is also risk to attacking the client. If the matter proceeds to formal charges, the initial response is always a trial exhibit. Bar counsel will use the lawyer’s words against him or her to show the lawyer is not remorseful and cannot acknowledge responsibility.
Bar counsel’s job is to protect the public from unethical lawyers, and we want to present the image that our client is professional, humble, and willing to learn from the experience. These are the clients for whom we can generally obtain positive results.
Craig Brodsky is a partner with Goodell, DeVries, Leech & Dann LLP in Baltimore. For over 25 years, he has represented attorneys in disciplinary cases and legal malpractice cases, and he has served as ethics counsel to numerous clients. His Legal Ethics column appears monthly in The Daily Record. He can be reached at csb@gdldlaw.com.
This article originally appeared in The Daily Record on October 3, 2024.
Goodell DeVries defends various professionals in Maryland, the District of Columbia, and Virginia, including lawyers and law firms. Many of these cases are ethics matters involving Bar Counsel. If you have questions about the above or are a Maryland lawyer facing discipline, please contact us at EthicsHelp@gdldlaw.com.
