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Jason Dzubow on Political Asylum

When Bar Counsel Comes Calling

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Every attorney who regularly represents immigrants and asylum seekers is familiar with Matter of Lozada.* In short, Lozada
states that to reopen an immigration case where the previous attorney
was constitutionally ineffective, the alien must file a bar complaint
against that attorney.* Despite some intervening decisions, Lozada is still the controlling law.* As a result, many immigration lawyers will face a bar complaint at some point in their career.*


It starts with Lozada, and ends like this.



In that happy spirit, I am re-posting
an excellent article by Dolores Dorsainvil, a Senior Staff Attorney
with the D.C. Office of Bar Counsel (the article is written with the DC
Rules of Professional Conduct in mind, but it really applies to all
jurisdictions). Ms. Dorsainvil investigates and, where necessary,
prosecutes allegations of ethical misconduct of District of Columbia
attorneys.* She is also an adjunct professor at the American
University's Washington College of Law where she teaches Legal Ethics.*
She has an ethics blog, The Gavel, which can be found here.* Without further ado, here is her article, 7 Tips for Dealing with Bar Counsel Complaints:

For many attorneys, coming across an envelope with the
return address marked "Office of Bar Counsel" undoubtedly brings a
sinking feeling. After reading the Bar complaint, an attorney's initial
reaction may be one of many: anxiety, incredulousness, fear, or even
anger. Some attorneys may even view the correspondence from Bar Counsel
as a personal attack on their credibility and professionalism. Whatever
the feeling, and however the complaint arose,*with hundreds of Bar
Counsel complaints lodged every year,*attorneys should appreciate and
understand not only the serious nature of attorney discipline
investigations, but that the process can be managed.

Here are seven simple tips to guide attorneys in
responding to a Bar Counsel inquiry should one ever become subject to
such a complaint:

1. Think. Before penning an emotional response
to Bar Counsel, take time to think about the legal matter, the history
of the case, and the client who filed the complaint. This will aid an
attorney in focusing on the issues involved in the complaint and may
give him or her time to provide a response based on facts rather than
emotions. An attorney may even want to review the file in its entirety
to make sure he or she is able to recall every detail about the
underlying legal matter.

2. Be timely. Request an extension, if needed.
In its cover letter accompanying the complaint, Bar Counsel provides a
date by which an attorney is required to respond. If for some reason an
attorney is not able to submit a timely response, he or she may wish to
request an extension. Our office usually will grant an initial
reasonable request for an extension. The attorney should confirm such a
courtesy in writing. If a circumstance exists that requires a lengthy
response period--as we all know, illnesses, deaths, vacations, business
or personal matters happen--it is prudent for an attorney to explain that
in writing to Bar Counsel and provide corroborating documents
explaining the lengthy extension request.

3. Respond. This may seem like an obvious step,
but there are attorneys who, even when they have not committed
misconduct, stick their head in the sand in an effort to avoid dealing
with the allegations made in a complaint. The important fact to note is
that failing to respond to a lawful inquiry from Bar Counsel is a
violation of Rule 8.1(b). So, even if Bar Counsel is not able to make
any findings of a violation of the D.C. Rules of Professional Conduct in
the initial complaint, our office may pursue and prosecute an attorney
for violating Rule 8.1(b). No matter how distasteful the prospect is of
being subject to a complaint, every attorney has an affirmative duty
under the rules to respond to requests for information from Bar Counsel
authorities.

4. Answer the allegations honestly and concisely. An
attorney should provide a comprehensive and fair explanation of the
facts and circumstances surrounding the allegations made in the
complaint. Providing a full picture or history of the representation
will assist Bar Counsel in rendering a disposition; however, an attorney
should be judicious. Providing a 30-page response while failing to
actually address the allegations of misconduct may raise concerns.

5. Provide documents, and then some. An
attorney should provide the documents our office requests, but he or she
also should provide relevant documents as exhibits to the response if
those documents corroborate an attorney's version of events. For
example, supplying Bar Counsel with a copy of a key pleading of an issue
that already has been addressed by a tribunal is extremely helpful.
Taking this proactive step saves time in the investigation process.

6. Be diligent and comprehensive. An attorney
should take the time to explain relevant areas of law as they relate to
the underlying legal matter. It is important for an attorney not to
assume that Bar Counsel is familiar with every practice area. Providing
Bar Counsel with a copy of the applicable rule or statute that the
attorney has relied upon in the underlying matter is invaluable and can
assist our office in determining the validity of the complaint.

7. Hire counsel, if necessary. This is a
determination that can only be made by an attorney, but there are
benefits to hiring representation. Respondent's counsels usually are
more familiar with the attorney disciplinary process and can help to
navigate the system.

Overall, an attorney's cooperation with a Bar Counsel
investigation will contribute to a resolution in a manner that
safeguards the rights of the public and protects attorneys from
unfounded complaints.

Originally posted on the Asylumist: www.Asylumist.com.

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Updated 07-16-2013 at 01:55 PM by JDzubow

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