November 2018 • Volume 106 • Number 11 • Page 22
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The Feared 14-Day Letter
What to do and not do when the ARDC comes knocking.
Be calm. Accurately lay out the facts. Question anything you don't understand. Ask for an extension-if you need one. This is how to react to a dreaded "14-day letter" from the Attorney Registration and Disciplinary Commission, according to those who represent attorneys facing ARDC complaints and those who investigate them.
Keep in mind: A 14-day letter is simply the first step in the ARDC's process and receiving one rarely results in a formal complaint. Most are dismissed upfront. Charges that lead to a hearing still need to be proved with "clear and convincing evidence," says Jeff Corso of Cooney, Corso & Moynihan in Downers Grove and a member of the ISBA's Standing Committee on the ARDC. Corso, who has represented attorneys for 30 years, including 15 before the ARDC, says "clear and convincing" sits somewhere between the criminal standard of reasonable doubt and the civil standard of preponderance of evidence, but probably closer to the former.
The ARDC handles thousands of grievances per year. However, they have fallen roughly 20 percent compared with five years ago. "We've seen a profound decrease, but we're still talking big numbers," says James Grogan, deputy administrator and chief counsel for the ARDC. "The vast majority of grievances are dismissed because the lawyer can say, 'This was the scenario, and I did my best.' Absent aggravating circumstances or a profound rule violation, you're not going to see a lawyer disciplined."
Sari Montgomery, of counsel to the Robinson Law Group in Chicago who primarily handles ARDC defense work, served at the ARDC for 11 years, and is past chair of the ISBA's Professional Conduct Committee estimates that 80 percent of files are resolved at the intake level and most of the remaining cases are closed without a hearing after requested records are submitted.
"If you get asked for additional information from an intake attorney-if they want records-that's not necessarily alarming," Montgomery says. "If they refer you to a litigation lawyer, that's something you should take [more] seriously. It's not for sure [at that point] that they're going to file charges, it's just an indication that they want to take a closer look."
Intake attorneys handle run-of-the-mill cases that don't raise red flags, Montgomery says. "If it does raise a red flag-a judge complains about you, another lawyer complains, it involves a significant amount of money being mishandled-those elevate it to the litigation department," she says. "When we talk to prospective clients, those are questions we always ask."
The ARDC's staff triages cases and Grogan confirms most never get beyond the intake stage. "ARDC staff are very adept at spotting what they need to know to close a file and asking questions and seeing if further inquiries need to be made," he says. "Most of the time, we are asking whether there has been a rule violation, and, if not, how can we get back to square one with the attorney-client relationship?"
Once a case moves forward to the ARDC's inquiry board, it considers the evidence, makes a ruling, and, if appropriate, imposes discipline. While decisions can be appealed, an appeal seldom changes the overall outcome on findings of fact, Corso says. "What they will sometimes do is reduce or increase the discipline," he says, adding that a reduction is most common. "One of the mitigating factors is an acknowledgment of guilt and remorse."
Your best defense is honesty
So, how should attorneys conduct themselves upon receiving a 14-day letter? What are the do's and don'ts?
"The most important thing for a lawyer who's got any kind of reasonably serious charge against them is accuracy," Corso says. "When I say 'accurate,' I mean crystal-clear, 100 percent accuracy. If you don't know what was said [at a given moment], don't guess or make something up."
If the complaints in the 14-day letter aren't clear, ask for clarification. You also can ask for more time to respond. "You will probably get it," Corso says. If a client claims you haven't accurately kept track of time, Corso recommends asking, "Would you be specific? What time entries are bothering you?"
"Or if there's a naked assertion that the lawyer never responded to my phone calls, ask what phone calls? What days? I recommend that all attorneys keep a phone log and thorough time records."
Montgomery says attorneys should first read the 14-day letter thoroughly, "which surprisingly some people don't want to do because they're too afraid." Also, honestly consider whether you may be at fault. If the answer is yes-or if it's a complex case-consider bringing in representation. If that seems unnecessary, it's still a good idea to have a partner or colleague review the letter, evaluate your response, and provide an objective viewpoint.
"If it's pretty straightforward, and the client is just disgruntled with how the case came out, if you didn't do anything wrong, and you have the documentation to back you up, you certainly could take a stab at drafting something yourself," she says. "You can always get more time. All you have to do is call the ARDC and ask for it."
Watch your tone
Be succinct and watch your tone with the ARDC, Corso says. Hiring an attorney to represent you, rather than handling such matters on your own, is one way to keep yourself in check, he says. "If your response is rambling and self-congratulatory, the ARDC takes that and says: What the complainant said was, 'the lawyer didn't listen to me,'" Corso says. "I'm thinking to myself, wait a minute, I think there's some truth to what the client is saying, based on the way you responded-you're very high-handed."
Asking a third party to look at your response letter also helps you maintain composure, Montgomery says. "A lot of times lawyers get very angry when they get these letters, and it comes through in the response," she says. A partner or colleague can say, "What you're saying is right, and it's all good, but you might not want to call your client crazy." She adds, "Once you write the response, if you're doing it on your own, set it aside for a day. Lawyers should pause before disputing everything the plaintiff has said.
"Like any other regulatory agency, if you view [the ARDC] as the enemy, you're going to treat them like the enemy. If you view them as a resource, that's a much better attitude to have," says Jeff Strand, president and CEO of ISBA Mutual.
Ignoring the 14-day letter or not cooperating with the ARDC can escalate a small matter into a significantly larger one, Montgomery says. "They certainly take a much more aggressive stance," she says. "The rules require that you cooperate with the ARDC, so that can be an independent basis for discipline if you don't. Other mistakes lawyers make in responding include not being forthcoming about something that happened. That's always going to get you in bigger trouble. The cover-up is often worse than the crime."
Most ARDC complaints ISBA Mutual sees stem from client miscommunication and misunderstanding, says Strand. "The vast majority of cases never turn into anything," he says. "The challenge is, this is an adversarial system. If your client didn't like how [a case] turned out, but you did everything right, you still may end up with sour grapes."
Strand recommends immediately contacting your insurance carrier when you get the 14-day letter to get a dispassionate viewpoint and possibly legal counsel. "We usually have a lawyer help them draft the response and get the facts laid out in front of the ARDC to avoid a he-said, she-said scenario," Strand says. "The wrong thing to do is get mad and fire off some response, or directly contact the client and escalate the issue. That's not going to do anyone any good."
If your carrier provides disciplinary coverage, report it, he adds. "Let us know, and we can usually solve problems before they become bigger problems."
Grogan echoes Strand's thoughts about keeping your malpractice insurance in mind. "I always caution lawyers that if you have a malpractice policy, that grievance may have tripped a claim-notice requirement," he says. "And there are a lot of policies that are very good about offering a certain amount of protection in furnishing legal representation."
ISBA Mutual evaluates disciplinary complaints based on the likelihoods of malpractice and ARDC action. Some cases result in both. "There's always a balancing act in determining what is an ethical action and what is a negligence complaint," Strand says. "Missing deadlines and things like that are still going to be causes for complaints, but they generally don't rise to the level of ethical issues." On the other hand. Strand says, commingling of funds can lead to major trouble. "Even going accidentally out of balance on your trust account can cause an ARDC complaint," he adds.
Montgomery strongly recommends hiring an attorney if a lawyer from the ARDC litigation department contacts you or if the ARDC asks to subpoena any information. "I can't tell you how many people come to us after that happens," she says. "We read the transcript of the statement and we wish they had come to us sooner. Obviously, we will still be able to help them cooperate with the ARDC."
When an allegation involves alleged theft of client funds, Grogan says hiring an attorney is not only helpful but essential. "If that's the case, don't send it to us without having someone objectively look at the allegation," he says.
Grogan suggests that to prepare for the possibility, attorneys should reserve a speed-dial button on their phones for their risk manager and another for a trusted friend. "That's more for solos. One advantage of a firm is that you can walk to the next office, knock on the door, and say, 'Can I talk to you?'"
Although he suspects few lawyers take the time, Strand suggests reading the Rules of Professional Conduct and calling trusted experts with any questions, including the ARDC, the ISBA, or ISBA Mutual, which has a risk management hotline at 866-473-4722.
"The bottom line," Grogan says, "if you're doing something that feels not quite right, go with your gut. If you think you've got a problem, you probably do. There are resources out there. You're not on an island. You're not out there all by yourself. Ask before you act."
Avoiding the ARDC altogether
Although most cases do not result in any discipline, there are many things you can do on a day-to-day basis to prevent receiving a 14-day letter in the first place. Given the high percentage of cases that result from Interest on Lawyers Trust Account (IOLTA) violations, Corso recommends checking (or having someone check) IOLTA records regularly. Solo attorneys must be especially thorough when keeping IOLTA records, since they may not be able to afford a second pair of eyes. "You've got to make sure everything balances to a 'T'," he says.
Being cordial with clients and admitting mistakes also will help you stay out of trouble, Corso says. "A client whom you've upset is a client who will report you," he says. "The ARDC does not expect us to be perfect; however, clients might. That's what negligence actions are about. Don't compound the error by making a mistake and hiding it from the client."
Montgomery agrees that keeping thorough, accurate records is a best practice. "Even lawyers who handle cases on a flat fee or contingent-fee basis, who are not billing hourly-it's still a really good idea to keep records of what you're doing and how much time you're spending," she says. "That's 90 percent of the battle with the ARDC-being able to show you did the work and charged a reasonable fee. It can save you a lot of headaches down the road if you have those records."
Aside from that, keep open lines of communication with your clients and make sure they know what's happening with their cases, Montgomery says. This doesn't need to happen every day, she says, "But if you go to court, it should be a habit that you contact your client before and after the court event and let them know what happened. And documenting such communication is a good thing. Clients like to know you haven't forgotten about them. Also, establish reasonable expectations when you start working with a client. Otherwise, some clients might expect a call every day or every week."
Corso says the ARDC is tracking more cases involving services like the attorney-finder website Avvo. However, he says the ARDC has not pursued such cases aggressively.
Grogan says social media can lead to trouble. "Most communications have increased opportunities for accidents or misconduct, like tweeting out something that you discussed with a client," he says. "Lawyers have to be careful."
Younger lawyers in particular should be aware of ethical standards relating to technology, Strand says. "The admonition we give to lawyers is, 'You can't come out of a hearing and start posting the results on Twitter. You might be violating the technical rules of confidentiality,'" he says. "It's social media, not professional media. Keep your professional life outside of your social life. Don't let it bleed over. Sometimes it's seeking attention, sometimes it's wanting to brag about a good result."
Emerging trends and issues
The types of issues the ARDC deals with haven't changed much over time, Montgomery says. In 2017, the ARDC investigated 4,592 complaints, of which approximately 40 percent stemmed from allegations of neglect and 16 percent from failure to communicate. "Those are the most common," Montgomery says. "They do get a number of complaints about mishandling client funds. They obviously take those complaints very seriously." The neglect and failure-to-communicate cases often are cleared up pretty easily, she adds.
Corso says conversion cases are the most alarming. "You do not mingle your funds with theirs, and you do not spend their funds," he says. "Don't touch them. Not even a penny. Yes, mistakes happen." But, he adds, "Conversion involves no intent. That's the problem."
Grogan says the ARDC has gotten less aggressive about pursuing single counts of neglect, especially when no lying to the client has taken place. "We're not trying to grab low-hanging fruit to add to our statistics." If anything, Grogan says the ARDC is increasingly targeting serial neglectors. The goal is to intervene after two or three complaints so that they don't turn into 50, he says.
What has gotten worse over time are cases involving drug and alcohol abuse, Grogan says. "I wouldn't have thought 10 years ago that this would get worse. There's a lot more stress because there are a lot of kids getting out of law school with an awful lot of debt. Plus, a lawyer is always dealing with someone else's problem. That can aggravate their already stressful situation."
Strand believes the ARDC is showing proper concern about the rise of substance and alcohol abuse-and about mental wellness. "They are trying to focus more on, in our observation, trying to be a little more remedial on some of the complaints," he says.
Montgomery says emerging issues before the ARDC often reflect trends in society-for example, there was a surge in complaints related to mortgage-foreclosure cases a decade ago during the housing crisis and there has been an increase in immigration-related complaints during the past five years. Complaints from criminal cases are always the most common, followed by domestic relations. "People are generally dissatisfied in those types of cases-nobody is happy," she says. "The ARDC usually won't take on any criminal-case complaints unless there's a court finding of ineffective assistance."
ISBA Mutual has noticed the same thing about criminal complaints, Strand says. "If a criminal ends up in jail, they've got nothing but time," he says. "But they often don't have any true case, they're just mad. Overall, we're not seeing a significant change in criminal-case complaints."
Technology also is a new variable, Corso says. "Technology is a diligent lawyer's best friend. It is a non-diligent lawyer's worst enemy." For example, attorneys often dump their IOLTA records into a simple spreadsheet-but the ARDC requires individualized disbursements per client and per matter. "It's harder to get away with imprecise recordkeeping," he says.
Grogan says email and text communication might actually be causing a decrease in attorney complaints because clients have more ways to communicate.
"There's immediacy," he says. "Lawyers are better at maintaining goodwill with their clients," he adds. "Especially younger lawyers who are facile with the new modes of communication."
"People make mistakes. That's not fatal," he says. "That doesn't automatically mean we're involved, or that we're going to prosecute somebody. The Illinois Supreme Court gives us a lot of discretion, and the judges want us to exercise good judgment."
Ed Finkel is an Evanston-based freelance writer.
ISBA RESOURCES >>
Deane B. Brown, The ARDC's Proactive Program for Better Practice Management, Bench & Bar (Feb. 2018).
Ethics Question of the Week, What Should I Do With Unidentified Funds in an IOLTA Account? Illinois Lawyer Now (June 2015)..
John R. Cesario, ARDC Thoughts, Senior Lawyers (Feb. 2014).