Washington Lawyer - July/August 2019 - 8

PRACTICE MANAGEMENT

How to Avoid Becoming an

ODC STATISTIC

Government,
In-House, Public Interest

13%

Small Firm

47%

By Dan Mills

hat can we learn by looking at the 2018
statistics from the Office of Disciplinary
Counsel (ODC)? If you are a small firm lawyer, part
of the roughly 12 percent of the Bar's 108,000
members, you are at high risk for a bar complaint.
Small firm lawyers were the respondents in 47 percent of the docketed bar
complaints in 2018. That's not an aberration. Although they make up one of the
smallest demographics of the D.C. Bar, small firm attorneys account for nearly
half of the docketed bar complaints on an annual basis. Medium to large firm
lawyers are the subject of 40 percent of the bar complaints, with the remaining
13 percent spread over government, in-house, and public interest lawyers.
Some may claim that ODC targets small firm lawyers; however, a simple fact
counteracts that claim. A client, former client, or someone else triggers the bar
complaint process in nearly every case, not ODC.
Many theories abound as to why a small fraction of the Bar membership accounts
for nearly half of the docketed bar complaints, but the good news is that most
complaints are dismissed without discipline. Only a small number of the complaints moves forward in the discipline process. In 2018 ODC resolved 350 cases,
and 59 (17 percent) of those cases involved public discipline, according to Dolores
Dorsainvil, assistant disciplinary counsel at ODC. She says that the following issues
in small firms are frequently the subject of bar complaints:
Money Management. Lawyers must know how to properly handle client funds
under Rule 1.15 of the D.C. Rules of Professional Conduct because the lawyer
has a fiduciary relationship with the client and possibly others when it comes
to entrusted funds.
Support. Small firms frequently lack support for handling a caseload and for
adequately communicating with clients. A single lawyer with a heavy caseload
and no help is vulnerable to a bar complaint from a client who requires a lot
of communication, explains Dorsainvil.
Economic Pressures. Lawyers at small firms often feel compelled to take on
more clients than they can handle to keep up with overhead and personal
living expenses. This can also cause a lawyer to "dabble" in an unfamiliar
practice area where the lawyer has little or no knowledge and experience,
resulting in a bar complaint, Dorsainvil says.
Isolation. Small firm lawyers often have limited opportunities to brainstorm
about cases. Not being able to vet a strategy in a case or simply get good
feedback from another lawyer can lead to vulnerability, according to Dorsainvil.
"Bigger law firms have more supervision and more avenues of guidance, such
as in-house ethics counsel, which can prevent mistakes and/or bar complaints,"
she says. "These structures can also detect a lawyer in the firm who has a
8

WASHINGTON LAWYER

JULY/AUGUST 2019

Medium-Large
Firm

40%

DISCIPLINE RISK

problem, and [the firm] can take steps to deal with it before a client is harmed.
Accordingly, we do not receive complaints about these lawyers."
The top five areas of misconduct alleged in the 294 complaints filed in
2018 were (in descending rank) neglect, dishonesty, overdrafts, ineffective
representation, and conflicts of interest. The top five practice areas involved
in the complaints were civil litigation, immigration, estate and probate,
employment, and family law.
It's a misconception that young lawyers often are the subject of bar complaints.
Most of the complaints in 2018 were against respondents with 15 years or more
of experience.
What can a lawyer do to avoid becoming an ODC statistic? Dorsainvil advocates
the following:
1. Read the rules of professional conduct in each jurisdiction where you're
admitted to practice.
2. Read the disciplinary opinions.
3. Communicate with clients. Neglect (failure to communicate, specifically)
is the number one ODC complaint. Keeping clients reasonably informed
regarding their legal matters and providing prompt responses to their
inquiries foster a good attorney-client relationship. Clients who feel like they
have access to their lawyer are less likely to file a bar complaint.
4. Get ethics guidance. For D.C. Bar members, ethics guidance is available
at 202-737-4700, ext. 1010, or ethics@dcbar.org. The service is free and
confidential.
5. Know and understand Rule 1.15, including cases construing it from the
D.C. Court of Appeals, if you are responsible for client funds.
6. Attend CLE courses and practice management programs at the D.C. Bar.
One job of the D.C. Bar Practice Management Advisory Service (PMAS) is to help
lawyers avoid bar complaints. Good management of a law firm goes a long way
in preventing disciplinary action. Members should know that under Rule 1.6(j)
of the D.C. Rules of Professional Conduct, PMAS lawyers and a D.C. Bar member
have a lawyer-client relationship, so communication is confidential.
To reach a practice management advisor, contact Rochelle Washington at 202-780
2764 or rwashington@dcbar.org, or Dan Mills at 202-780-2762 or dmills@dcbar.org.

https://www.dcbar.org/

Washington Lawyer - July/August 2019

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