Bar Complaints: Understanding the Process and How to Avoid Them

Episode Notes

Transcript

The Florida Bar Podcast

Customer Service Tips from an Intake Professional

09/28/2017

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Intro: Welcome to The Florida Bar Podcast, where we highlight the latest trends in law office and law practice management to help you run your law firm, brought to you by The Florida Bar’s Practice Resource Institute. You are listening to Legal Talk Network.

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Christine Bilbrey: Hello and welcome to The Florida Bar Podcast brought to you by The Practice Resource Institute on Legal Talk Network. We are so glad you’re joining us. This is Christine Bilbrey. I am a Practice Management Advisor at PRI and one of the hosts for today’s show, which is being recorded from our offices in Tallahassee, Florida.

Jonathon Israel: Hello. I am Jonathon Israel. I am the Director of The Florida Bar’s Practice Resource Institute. Our goal at PRI is to assist Florida attorneys with running the business side of their law practices. We will be focusing on a different topic each month and we will carry the theme through our newsletter, website and with related tech tips and articles.

Christine Bilbrey: So this month at PRI, our topic is improving client communication and calendaring to reduce stress and avoid bar complaints. Because we do hear from a lot of people that they fear the Bar because of this, and we want to make things as transparent as possible. So joining us today is attorney Shanell Schuyler. Shanell is the Director of the Attorney Consumer Assistance Program known as ACAP, here at the Florida Bar.

She also supervises the Bar’s Grievance Mediation and Fee Arbitration Program. Shanell has practiced commercial litigation, banking law, eminent domain, real estate and probate administration. She joined the Florida Bar in 2007 as a senior attorney in ACAP and became Director of the ACAP Intake Department in February of 2012. Welcome to the show Shanell.

Shanell Schuyler: Thank you. Thank you for having me.

Christine Bilbrey: So Shanell, tell our listeners a little bit about yourself and what do you do here at ACAP.

Shanell Schuyler: Oh wow. Well, I have been an attorney, licensed in Florida since 1994. I was in private practice for about 14 years in South Florida and then moved to Tennessee. I was licensed there for about five years and then had the opportunity to move to Tallahassee with my family and joined the Florida Bar at the very time that ACAP was expanding to also become the Intake Department, where if ACAP cannot resolve an issue that occurs between an attorney and a client or an attorney and even a third-party, then the complaint process then starts.

We can provide the complaint form or tell someone how to get the complaint, and then we also are the central intake of all the complaints throughout the entire state of Florida. And so in 2007, the department doubled in size. We have eight staff attorneys, plus myself as the Director and we take on, again, we have a hotline shift where we try to resolve issues before they come to the complaint process or we direct people on how to assist them, how to file a complaint if they need to.

And then we do the front end of the investigation here, where we will send out the complaint and a letter to the attorney requiring their response. The complainant gets to respond or rebut anything that’s in that response and then we take a look to see what we have, to see whether or not it’s something that would rise to the level of something that would require discipline or if it would be just closed at the staff level.

Christine Bilbrey: Okay, so you’re kind of the triage for all the complaints coming in.

Shanell Schuyler: That’s a perfect word. That’s something that we use here as well. And so if a complaint is to go further from our office it would be then sent to the branch level for further investigation and that’s where it would possibly go to a Grievance Committee for a probable cause determination and if probable cause is found that triggers our prosecutors, our staff attorneys to file a formal complaint with the Supreme Court at that point in time.

Christine Bilbrey: So what are the — maybe top three complaints you get? What are the most common complaints that you have coming into your office?

Shanell Schuyler: We get a lot of complaints concerning lack of communication. I think that’s one of the big ones. And I guess I should really preface this by saying that in reviewing the complaints that we do receive, those written sworn complaints, our level, our threshold level of opening a complaint for an attorney’s response is relatively low.

It’s if taken as true, would the complaint allegations possibly warrant the imposition of discipline. And so when you’re thinking about that kind of standard my attorney doesn’t call me back, that’s enough to trigger a response, to trigger the file to be open and then get a response from that attorney. Now that attorney may say look, I have documentation and emails and phone records that show that I’ve contacted this person every other day or something like that.

(00:05:05)

And that’s what we would need then to close out our file to say well, there seems to be enough communication there that it wouldn’t rise to the level of something that would warrant discipline, but that attorney still has had then to go through that process.

So with the standard being as low as it is, it is a low standard for us to actually open a grievance, it’s taken as true would it result in a possibly discipline.

Lack of communication is definitely one of those. We see a lot of issues with fee disputes, putting your fee agreements in writing will reduce quite a number of those kinds of issues, keeping those things defining what the scope of your representation is. If there’s a workers’ comp and a personal injury, are you taking on both of those. If there’s a criminal action plus a forfeiture action, are you taking on both of those? If there’s a criminal action and there’s two more criminal actions that come later on, are you taking on those as well. So being very specific in your written fee agreement is very important to avoid those unnecessarily filed complaints.

I think the other ones are when there is an issue where maybe the attorney-client relationship has maybe gone a little sour and sort of it’s coming to an end, then the return of any documentation that belongs to the client and/or asserting a lien for any unpaid attorney’s fees. Those kinds of things tend to generate a little bit more complaints as well.

We also have areas of practice I think that we see more complaints or areas of practice that we see the greatest amount of complaints coming in is criminal defense work and followed closely by some complaints about prosecutors.

The other one that that closely follows then those criminal complaints is family law. So in those instances again, those are just very stressful times for people and they tend to come out in complaints in that way.

Christine Bilbrey: And I think it’s really important to point out because I think, if you’re an attorney and you’re already stressed, you’re overwhelmed by everything that you have to do and then you get this letter from the Bar. When we read in the Florida Bar News, a lot of times they’re in trouble because they just never responded. And I think that they don’t, like there’s this moment where they just freeze up and think if they don’t open their mail, it’s going to go away.

So I’m glad that you’re saying that’s just the start and if you’ve got the documentation that they could head off this turning it into something much more serious. Can you — do you have any kind of like percentage of like from all the calls or complaints you get, how many are you able to head off by the attorney responding and like it’s been a misunderstanding that you make go away.

Shanell Schuyler: Oh okay. Well let me talk about kind of like the broad ACAP part then, and then narrow down to when we have an intake and that’s a sworn complaint, where we are going to turn it into an answer. So ACAP, we roughly take about 19,000 to 20,000 requests for assistance every year.

And a request for assistance is if caller calls in about one attorney, they get a number, they get a reference number, a request for assistance. They can call in 20 times on that same attorney and that’s still just one request for assistance, okay. And so we try to resolve that issue, but if it goes to may be a sworn complaint, then there’s a new, a different type of case number then that’s generated from that.

Now, we get — like I said roughly 19,000 to 20,000 of those requests for assistance every year. We turn about between 25 and 30% of those into cases. And those are sworn complaints, where the Florida Bar has jurisdiction. For instance, we don’t have jurisdiction over sitting judges, we don’t have jurisdiction over the elected public officials like the elected state attorney or the elected public defender.

So sworn complaints where we have jurisdiction and where the allegations could possibly warrant that imposition of discipline. So about a third I would say are turned into case files where we’re actually opening those, investigating, requiring the attorney to respond, giving the opportunity to that complainant to file a rebuttal to that response.

(00:09:56)

And of those, of that one-third and so, if we’re talking about, let’s just kind of talk about round numbers because I’m a lawyer, I am not a mathematician. So 20,000, say we’re turning maybe 5,000 of those into cases about another third of those would then go to the branch office. So roughly — well, actually probably even a little bit more than that, maybe about more like 40% of those come into to the branch offices.

Jonathon Israel: And when you say the branch offices, so each branch handles the certain section of the state is that what we’re talking about?

Shanell Schuyler: That’s correct. Yes, we have five branch offices. Tallahassee covers the entire Panhandle from Pensacola to Jacksonville, then we have the Orlando branch that covers the, the East Coast and into Central Florida, the Tampa branch office covers the west coast of Florida all the way down to Naples and then we have Miami-Dade County that covers that County as well as Monroe and we have the Fort Lauderdale branch office that covers Broward and Palm Beach.

And so if we transfer a case down to the branch office they get the entire file and then they set out to have an investigating member from their Grievance Committee do further investigation, report back to the committee and vote on probable cause.

Christine Bilbrey: So it sounds like your — I had an idea of the volume of calls you are getting and there’s eight of you up there, so that’s impressive. Are you getting a lot of calls that are — I would use the word frivolous like they’re just upset so you’re kind of talking them down or I mean is that some of the like they think that it’s a serious thing or how are you explaining that to all the callers where they — how are you diffusing that if from the high volume down to the numbers are actually turning into cases?

Shanell Schuyler: Yeah. Well, I think that’s one of the beauties of the ACAP Program. We do get callers that are frustrated with either their own attorney not calling them back or for some reason they expect an attorney that’s working for the other side to be able to talk to them, if they’re represented obviously they — the attorney for the other side can’t and talk to a represented person. Sometimes they’re not authorized to talk to this particular person.

For instance, let’s say, it’s a probate estate. The attorney is actually representing the personal representative not the beneficiaries and so if that personal representative has said, I don’t want you to waste the estate’s money on talking to the 15 cousins — they’re not going to talk to the 15 cousins.

So an attorney can’t talk about the case to someone who is not their client, maybe it’s the mother of the son who is now incarcerated. Mama, I can’t tell you anything, I’m sorry. And so that’s the beauty of ACAP where we can actually say we’re disinterested in this whole thing, and so sometimes when that disinterested person says, what the attorneys been saying all along then, it helps to reinforce that and say, oh, okay well they are telling the truth.

So we will tell them, mama, this attorney can’t talk to you they’re just — they’re not permitted to other than if you’re a witness and if you would have something to say to them, but they can’t talk to you about your son’s case, they’re not authorized to do that. And even if your son gives them authorization doesn’t mean he has to or the attorney has to talk to you, it’s a prerogative. It would be like I give you permission to but you’re not required to at that point in time.

So we do a lot of educating in ACAP, and I think that’s again one of those things that when someone hears it from someone else and they say okay, well that’s not a rule violation, as a matter of fact that’s being compliant with the rules. And so if that attorney would talk to you that could possibly be a rule violation from someone else then.

Christine Bilbrey: That’s wonderful. So that you’re actually helping out attorneys a lot if — because if you’re there, like you said they are trying to explain this over and over, it’s taking up time. That’s nice that you’re doing this educational component for the public.

My next question is about attorneys calling about other attorneys, so I know that like through litigation or the deposition process when there’s not a judge present they will call ACAP about the behavior of the opposing side. Is that a big portion of your calls?

Shanell Schuyler: I wouldn’t say it’s a big portion. Generally speaking, attorneys know how to handle those kinds of things to the extent that they can get a judge involved if someone is doing something inappropriate at a deposition they go and get a protective order or they handle that through the court which can obviously handle it much quicker than through the discipline system. I mean, it’s probably a five day wait to get a hearing set or something like that, whereas, we have a 15 day when I send out a letter for an attorney’s response to a complaint, it’s they automatically get 15 days to respond and then there’s a rebuttal time and then a review time and so, you know, days and weeks can go on in the discipline side.

(00:15:10)

In addition to that, obviously we don’t deal with an individual lawsuit or action. So in other words, if you’re having an issue with your opposing attorney about a discovery issue or a sanction hearing or something of that nature coming up, the discipline system is not the correct place to address that.

Now when you get to a deposition, when your opposing counsel is banging on the desk and grabbing papers from your hand and using profanity and things of that nature obviously that goes well beyond anything that should occur at a deposition, and that personal behavior is something that we could definitely take on as a complaint here and at the Florida Bar. It has nothing to do with the underlying cause of action it really has to do with the attorney’s behavior. So yes in those types of instances we do see those.

The other thing that we see and probably even more frequently I think than attorney against attorney is we do have referrals from judges, and so we definitely see those. A lot of times those come in the forms of orders that, where the judge has written out a Sanction Order and says something like, this is being referred to the Florida Bar for further consideration. And so we do see that a number of times when an attorney is getting out of hand, it’s again, in that scenario that I just mentioned where there’s an attorney that did something inappropriate at a deposition and obviously, you have a transcript of it, possibly even a video of it. Nowadays we do a lot of video depositions and you can really see the behavior or at least filter it through the written transcripts and the judge may refer something like that if it’s been addressed to the court.

Jonathon Israel: Every once in a while in PRI we will get a call from an attorney who has a client that won’t pay and he’s trying to figure out what he can do and he’s wondering if he can either sue the client or get a credit bureau to go after the client, do you receive a lot of complaints from the attorney’s clients in that regard or?

Shanell Schuyler: We do see a number of fee disputes and again, just having your written fee agreement helps in those situations. The Supreme Court has a longstanding order that basically says that fee disputes are civil matters. They are to be addressed in civil court just like any other sort of dispute that you would have with someone you contract with.

And so other than if the fee dispute would be over a clearly excessive fee and when you say clearly excessive it’s not your characterization of a clearly excessive, it’s the court’s characterization of a clearly excessive fee. So generally speaking, we wouldn’t take on as a discipline matter clearly excessive fee unless it’s been judicially determined to be clearly excessive or extortionate or illegal somehow. There are certain fees that you cannot take — you can’t take a contingency fee in a family law case for instance, so that would be an illegal fee.

We do see a number of those fee disputes and typically those will be closed out with a letter explaining that the Supreme Court has said that those are typically civil matters where if you can’t come to an agreement with the party or with the attorney or with the client over the fee dispute then you’ll need to go to the civil court. That we have developed through our rule, Chapter 14 of the Rules regulating the Florida Bar, the Grievance Mediation and Fee Arbitration Program, great program. It’s a free service offered by the Florida Bar, it’s — we don’t charge for it, we have volunteers throughout the entire state that are certified through our standing committee as arbitrators and mediators. Our mediations are very similar to any other mediation that occurs in any other type of action where the parties would get together, make an opening statement then usually separate and the mediator would sort of run back and forth and try to negotiate out a settlement. The mediator has no authority to require a settlement, they’re just there to facilitate the communication and try to work towards the settlement. You can leave settled or you can leave in an impasse and go out the door the same way you walked in with still with your fee dispute.

(00:19:51)

The arbitration is a binding arbitration. So it is waiving your right to go to trial. We do have Rule 4-1.5 that gives the attorneys the information and the language to put in their fee agreements beforehand, that gives that language for the waiver of the right to go to trial if you intend to subject your fee agreement to an arbitration through the Florida Bar. So look at 4-1.5 if you want that language.

So the arbitration is a binding arbitration, so that arbitrator will actually make a decision, it’s a quasi-judicial proceeding and that decision will stand and will not be changed unless there you can prove that up through the court then, going through Chapter 682 of the Florida Statutes, and it’s for very narrow exceptions that any sort of arbitration award would be modified or vacated.

Christine Bilbrey: Okay. And then approaching it from a different way, when I was in the law firms and we had very late payment clients, like their case had already wrapped up, and so they owed — it had gone well for them, but now they didn’t want to pay their bill. There was an urban legend that you never turned your client over to a collection agency because they would file a bar complaint. Do you have bar complaints where after you go through the initial triage process that you discover that what it really was, was that the client — that it was a retaliatory complaint because they did not want to pay the rest of their bill to their own attorney, has that —

Shanell Schuyler: Oh sure, we can see those, but again, we look at everything that’s in the complaint and even beyond that. So a complainant is not required to know our rules and to spout them back at us. So we are looking at the entire thing. We also do conduct our own investigation. We have access to the court dockets and the files. Most of the clerks or the courts offices now have their documents online that we can see.

And so we get the whole, he didn’t do anything, he never called me and he charged me too much money. Well, then we can look up at the court docket and say, well, actually they participated in discovery, they did 16 depositions. And so we can actually see what the attorney has done, how many hearings they have gone to, what the status of the case is actually at, at that point in time or whenever the attorney maybe withdrew, and so we do look at all of the allegations and even beyond.

There are times when that fee agreement will be attached to the complaint or even the response from the attorney, and I am analyzing even the fee agreement to say, look, does this fee agreement comply with our rules. For one instance, you can’t charge an administrative fee just by opening the file. You can’t charge $150 or $250, that will get you an immediate down to the branch office and a no, no, don’t do that anymore kind of letter.

But there are things that we do look at. We look at all of the allegations and then if we cannot prove them by clear and convincing evidence then we are going to close those out and it would be then just the fee dispute kind of thing. If you are still having that kind of dispute, you can take advantage of our mediation or arbitration program. I did say they are free of charge and they are voluntary participation, so we would get the consent of both the complainant and the attorney in order to participate.

Christine Bilbrey: And I am curious, you mentioned that some of the files that get opened are because a judge has let you know about the behavior of a particular attorney. So if you are getting that kind of order and it turns out the bar has this big initiative this year about the mental health and wellness of attorneys, so do you have resources to offer those attorneys? Do you connect attorneys with Florida Lawyers Assistance? What happens when you realize that maybe it’s a mental health issue?

Shanell Schuyler: Yes, I am so glad you brought that up, because you cannot be a competent attorney if you are not a healthy attorney, a well attorney. And that’s from so many different aspects. We all have those times when we are dealing with stress and that could be a business stress, that could be a personal stress, that could be just any number of things going on, but we are really looking at those kinds of issues right now and it’s just so important for attorneys to understand where they are, because those are the times when we see just those one-offs where nicest attorney, most professional guy in the world and he loses it at a deposition, that’s just not that person, but they are dealing with something in their personal life that they just haven’t been able to process right.

(00:25:06)

When we get those complaints and especially from judges or even from maybe another practitioner who has seen something there, we are definitely able to connect that attorney with Florida Lawyers Assistance, sometimes it takes going through the process to actually find out what really is behind the issues going on there, and sometimes that comes out in the response, well, look, I have just had to deal with my mother’s death, I am processing my father who has Alzheimer’s and I have got a kid in college who I can’t pay for now, and just like all of this comes out in this balloon.

And then we really see where it is and we can address those situations then, get them the assistance that they need, not only through Florida Lawyers Assistance, which is mental health counseling, drugs, alcohol, things of that nature, but through your organization. PRI is a wonderful resource of just so much information about how you can better organize, how you can better calendar, how you can make sure your trust account is in compliance, just so many different things that the list can go on and on.

So we routinely direct attorneys to the PRI website to look at — we sort of have our favorite things of course to direct them to dealing with the types of calls that we get, but it’s a wonderful resource for all of our practitioners out there.

Christine Bilbrey: We appreciate that, and prevention is just being organized, taking away that level of stress can be — it’s paying a little bit now to prevent a whole lot of heartache and headache later on and avoiding all of that stress. I am glad you brought that up, I appreciate that.

Jonathon Israel: So we led off the show with you giving us like the top three areas of complaints that you see, and the number one was communication. Is there some advice or some common thread that you have seen that you can give our listeners the advice to avoid those types of complaints against them?

Shanell Schuyler: Yes, sure. It’s funny that lawyers, we are generally in an adversarial profession and so we are used to those kinds of conflicts and things like that, but sometimes you just don’t even want to pick up the phone to talk with your own client, because you don’t even want to tell them that, well, there’s no news. But sometimes that’s exactly what they need to hear. Well, I am sorry I haven’t heard anything back from the other side yet and sometimes that’s enough.

The other thing that I have noticed is sometimes lawyers tend to leave their assistants or their paralegals to do that or to communicate, sort of be the go-between and a lot of times that just generates more questions. A paralegal or an assistant who can’t give legal advice will respond to a question from that — I guess be the go-between and that just generates three or more questions for the attorney that then the assistant has to either go back to and then there’s this going back and forth when it could have been a five-minute conversation with the attorney. And I just always say it doesn’t count. If it’s not coming from the attorney, it doesn’t count as attorney-client communication in the client’s mind.

So I haven’t talked to my attorney, and we get this all the time, I haven’t talked to my attorney and then when I get the response back we have communications through emails, through text messages, through telephone calls and records with the paralegal.

Christine Bilbrey: Right, right, and you could be the best attorney in the world, but a neglected client is an unhappy client.

Shanell Schuyler: That’s right, that’s right. Maybe this is a little insensitive, but you took this client and sometimes clients are different, some of them, they don’t care if they don’t hear from you for a month; another one is going to want to hear from you everyday. So yeah, you have got to balance that out and you have to maybe take some control and kind of give some expectations, and that could be taken care of also in your fee agreement about how much communication is there, and the reason why maybe you don’t communicate with them. I will not be calling you everyday. I will not be visiting you in jail everyday, things of that nature. Just set the expectation, but realize that some people are going to need a little bit more than others.

Christine Bilbrey: And as an attorney, if you are doing family law or criminal defense and you have been doing it for years, this may be textbook case for you, it’s going to be simple open-and-shut, you forget that it’s the worst thing that’s ever happened in that person’s life. They are not just a number, they are a person that’s in a lot of distress and they have come to you. So I think that it’s easy to forget that they need some reassurance even if things are going well.

(00:30:02)

Shanell Schuyler: Perfectly said.

Christine Bilbrey: I want to talk about when it gets a little more serious. Are attorneys allowed to bring in attorneys to represent them?

Shanell Schuyler: Absolutely.

Christine Bilbrey: At every step of the process and so how does that work?

Shanell Schuyler: Yes, we have attorneys out there that take on the representation of respondents. We call attorneys that have a complaint filed against them respondents. So we have respondent’s counsel. They can come in at the intake process. All they have to do is file basically a notice of appearance, a letter appearing on behalf of and then that makes the Florida Bar then communicate directly with the attorney representing that respondent now. So yes, that definitely happens.

I would say at our stage, at the initial intake stage, maybe about 25% to 30% of the time. Now, when it gets to the branch level, I think that’s even a higher percentage, because once it gets to the branch level, it is a little bit more serious.

We have got a grievance committee looking at things. The attorneys may be saying, hmm, maybe I shouldn’t have a fool for a client and myself and I should get some representation.

Christine Bilbrey: I like that you have demystified this for me too. I have learned some things today, but I love how much you are helping attorneys. It sounds like — I mean the approach is really let’s get this resolved instead of let’s pin you to the wall.

Shanell Schuyler: Yes, most definitely. And we don’t call the attorney unless we get the permission of the caller. A lot of times the callers are frightened that if the bar reaches out to their attorney that that attorney may withdraw because, oh no, you filed a complaint. You have called the bar on me. Well, that’s not the case. We want to mend that fence.

We want the representation to go on. It’s very difficult, and expensive, and time-consuming, and wasteful for a client to fire an attorney or an attorney to withdraw and then require that client to find another attorney. When you are coming in midstream at things and you have to have that catch up time and that usually results in a lot of judicial waste of continuances and things like that, delays in the case. So we want to mend that fence and if our staff attorneys can do that, that’s the best thing that can happen in those situations.

Christine Bilbrey: So when someone has questions about, they don’t want to file a grievance, but they have these kinds of questions, like a client doesn’t know what the procedure is. Is there a way for them to contact you? I mean, is it just a phone number, a hotline kind of thing, can they email you?

Shanell Schuyler: It is. If anyone has any questions and would like to speak with one of our staff attorneys, they can call the ACAP Hotline, that’s (866) 352-0707 and they will just be asked to provide their name, and usually we get the name of the caller and the name of the attorney that they are calling about.

But if there’s someone that — if there’s an attorney out there who just wants to speak with one of our staff attorneys about a certain issue, then they can just give their name and we can create just a call record. So that every time you call back, if you would call back more than once, you would get the same staff attorney. So that’s why we create that little call record. So it’s just a note for us to know that you have called and what we discussed.

Also for attorneys, there’s also the Ethics Hotline, which is an incredible resource again from the Florida Bar and I would have to look on our chart to see the telephone number.

Christine Bilbrey: The Ethics Hotline number is (800) 235-8619. That is a huge resource for us here in PRI. But Shanell, you are such a nice person and I know that’s come through today so I hope that attorneys will reach out to you and not be so afraid of ACAP because I think it’s actually a wonderful service for them.

It looks like we have come to the end of our program and I want to thank you so much for joining us today. It was very educational for us and we enjoyed getting to know you a little bit more.

Shanell Schuyler: Well, it’s my pleasure. Thank you so much for having me.

Christine Bilbrey: If you like what you have heard today, please rate us in Apple Podcast. Join us next time for another episode of The Florida Bar Podcast, brought to you by The Practice Resource Institute on Legal Talk Network. I am Christine Bilbrey.

Jonathon Israel: And I am Jonathon Israel. Until next time, thank you for listening.

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