Complaints to bar may involve ulterior motives

By Diane Karpman

Karpman

An interesting section in the Business and Professions Code, enacted in 1990, promoted by then-Speaker Willie Brown, finally has some judicial interpretation. Section 6043.5, (Complaints; False and Malicious) states, “(a) Every person who reports to the State Bar or causes a complaint to be filed with the State Bar that an attorney has engaged in professional misconduct, knowing the report or complaint to be false and malicious, is guilty of a misdemeanor.” The dearth of reported decisions might suggest that nobody ever files false or malicious complaints. Shocking as it may seem, clients have been known to file inquiries (early complaints), designed to leverage other disputes, that could be categorized as false and malicious.

Clients will (sometimes at the behest of their lawyers) leverage a claim of professional negligence. Sometimes the State Bar will abate those complaints until the conclusion of the litigation. Other times, they will not. Defending a claim for legal malpractice (while fighting a State Bar complaint) can create problems for the defendant. In civil litigation, defendants have rights in discovery. Those may be lacking or severely compromised in a State Bar inquiry, where lawyers have an affirmative obligation of cooperation under Business and Professions Code §6068 (i).

Clients and lawyers have been known to manipulate fee disputes by filing specious State Bar inquiries. Generally, if it’s a legitimate fee dispute, the bar will not get involved, after verifying that the dispute does not involve more egregious allegations, such as breach of fiduciary duties.

Cohen v. Brown (2009) 173 Cal. App. 4th 302, began as a fee dispute between former co-counsel to split a contingent fee. Brown had previously filed a State Bar complaint against Cohen, his former co-counsel, over the client’s signature, in what was really a fee dispute. The State Bar complaint was “a means of forcing concessions in the underlying suit, to wit, that plaintiff [Cohen] sign off on the settlement check …” (p. 311) The lawyer “puppet master” Brown was found to have engaged in an act of extortion. Because that act was illegal, it was not protected under CCP §425.16, (anti-SLAPP) and did not support Brown’s motion to strike Cohen’s claim. It violated Business and Professions Code §6043.5, (filing a knowingly false State Bar complaint). The court found the complaint was filed in an “extortive context.” (p. 315) This wasn’t the first time a complaint involving settlement check blackmail has been filed. So, be sure to keep a solid paper trail.

The State Bar also can initiate complaints independently from the hue and cry of the public (O.J. Simpson), or from media coverage of a lawyer’s conduct. State Bar “newspaper” inquiries can actually track the published story in the paper. We know newspapers are in dire economic straits and the press may sometimes enhance the news. So, if you think your conduct could be the subject of a press report, it’s a good idea to get the transcript.

• Legal ethics expert Diane Karpman can be reached 310/887-3900 or karpethics@aol.com.