Invariably, whenever I write a post about a lawyer getting disciplined for an ethics violation involving fee billing, I will get emails. Mostly from individuals with comments or questions about lawyer discipline. And so it was that after my post about an lawyer who got a six month suspension for overbilling, I received emails from individuals with questions on the disciplinary process for lawyers.
Some of the most frequent questions I am asked are how to go about filing a complaint (and if a lawyer is needed to file the complaint), will the disciplinary agency get my money back or get my lawyer to answer my questions (or do whatever it is they want the lawyer to do), and can my lawyer retaliate against me (or file a suit against me for slander) if my complaint is dismissed? So with this the fourth and final post in this series, I would like to answer these questions and share the basics of filing a disciplinary complaint against a lawyer.
First, to the basics of filing a disciplinary complaint. Filing a disciplinary complaint is very easy to do. But it should be the last thing you consider doing – especially if your goal is to satisfactorily resolve the fee bill dispute you have with your attorney. More on this point a little later.
But whether or not you were able to satisfactorily resolve a billing dispute with your lawyer, you do have an absolute right to file a disciplinary complaint against your lawyer if you believe the lawyer has violated the rules of professional conduct (RPC) that apply to lawyers when billing for fees and costs. As to which RPC might apply in a particular situation, I refer you to an earlier series of posts I wrote on the various RPC that may apply in fee billing situations.
If fraud or theft are involved, filing a disciplinary complaint should especially be considered along with possibly filing a criminal complaint. However, keep in mind that if a criminal complaint is filed, the disciplinary agency may wait to act until the criminal complaint is resolved.
As stated, filing a disciplinary complaint is easy to do. Most disciplinary agencies have an on-line form for filing disciplinary complaints.* They generally are user friendly and most importantly, one does not have to be a lawyer to fill out the complaint form.
In filing a disciplinary complaint, it is not at all necessary or required that you cite to a particular RPC that has been violated. Simply tell your story and the agency’s staff will decide if any particular RPC or a series of RCP may have been violated.
If you do decide to file a disciplinary complaint, keep in mind that disciplinary agency may not resolve your fee bill dispute for you. This is because most disciplinary agencies do not want to get into the middle of what they may essentially view as a contract dispute between a lawyer and a client over disputed fee bills. Nevertheless, they will deal with any RPC violation.
Also while a lawyer disciplinary agency may find that your lawyer did violate a RPC (or even several ROC), this does not mean that you will not still owe the lawyer for the lawyer’s services or that you would be able to get back any overpayment of fees. However, lawyers on their own may take steps to resolve the billing dispute with you especially if the lawyer believes that he may be found guilty of a RPC violation that relates to overbilling for services.
The reason a lawyer may voluntarily decide to resolve the fee bill dispute with you is that as a part of his defense in a disciplinary action, a lawyer is allowed to submit “mitigators” or certain things the lawyer may want the disciplinary agency to take into consideration to mitigate the RPC violation. Thus, as a mitigator, a lawyer might want the disciplinary agency to consider the fact that the lawyer took appropriate steps to satisfactorily resolve the underlying billing dispute.
Finally, a question I am often asked is “if a disciplinary complaint I file, can the lawyer retaliate in some way? Can he file a suit against me – especially if the complaint is ultimately dismissed,?”
I cannot speak to all state disciplinary programs. But those that I am familiar with make clear that lawyers may not in any way retaliate against a person who brings a disciplinary charge against them over a billing dispute or for any other reason. This would be the case even if the complaint is dismissed The only exception to this might be if it is shown that the person who filed the complaint lied. This point should be made clear in the information you are provided online about your state’s lawyer disciplinary complaint program. If not, you can contact the disciplinary agency for clarification.
In summing up my four part series of posts on how to go about successfully resolving a fee billing dispute with your lawyer, note that having the proper knowledge is paramount. And if you have read over the previous posts and have a detailed audit report which documents the instances of overbilling or billing irregularities in your legal bills, you will have the necessary knowledge you need to support your side in a legal fee billing dispute. This is whether the matter is ultimately settled through negotiation with the lawyer, through mediation or arbitration, or through suit.
In the end, it is likely you will discover that you actually had more knowledge about what the law and the ethics of the legal profession require of lawyers when billing for services than does the lawyer with whom you have the legal bill dispute. This may sound like an exaggeration. But unfortunately I have found over the years that many lawyers are shockingly ignorant of what the law and the ethics of the legal profession say that they can and cannot do when it comes to billing for fees and costs.
Finally, to resolve any billing dispute with a lawyer, remember these key things: act promptly; be specific and detailed; get everything in writing. And, most of all, be patient.
* The following is a link to a listing of state lawyer disciplinary agencies and boards: https://www.lawyerlegion.com/promote-your-law-practice/directories-by-state-bar/lawyer-disciplinary-agencies/