How to respond to State Bar letters of inquiry

You sit down at your computer on a Monday morning, coffee in hand, and open your email. Then you see it: a message from an investigator in the State Bar of California's Office of Chief Trial Counsel. Your first thought is that it must be a joke, until you notice that the subject line has a case number and you recognize a client's name. The message may include an attachment titled "Your California Bar License Is at Risk." The investigator asks some very direct questions and gives you two weeks to respond. Don't ignore the message. You have just received what is known as a State Bar "letter of inquiry."

Letters of inquiry serve two purposes. First, they satisfy a due process requirement. Members of the State Bar are entitled to notice and an opportunity to respond before disciplinary charges can be filed against them. The letter of inquiry must notify the attorney of the allegations forming the basis for the complaint or investigation and provide the attorney with an opportunity to respond. Second, the State Bar uses letters of inquiry to conduct its investigations. OCTC is not permitted to depose attorneys under investigation, although it can depose third-party witnesses, so the letter serves as a discovery tool. It is an interrogatory, request for admissions and document demand all in one.

Before responding, there are a few things you should consider. First, if the standard two weeks is not enough time to respond, request an extension. The State Bar generally provides respondents with more time, especially when the matter is complex and requires sorting through voluminous documents.

If the letter of inquiry does not indicate whether the investigation was triggered by a complaint or initiated by the State Bar, contact the investigator in writing and ask for clarification. The source of the investigation affects key issues, including privilege and limitations periods.

If the investigation was triggered by a complaint, the letter should indicate that and identify the complainant. If the complainant is a client, any attorney-client privilege is waived. If, however, the complainant is not the client, or if the investigation was initiated by the State Bar, the attorney-client privilege is not waived and must be asserted on the client's behalf. While the privilege may prevent you from responding substantively to the investigator's questions, you are still required to submit a response. Of course, you may seek a waiver from your client to respond more fully to the letter of inquiry. When seeking a waiver, be sure to inform the client that, although the investigation itself is confidential, the matter will become public if the State Bar files disciplinary charges. Get any waiver in writing. Other privileges, such as HIPAA, the privilege against self-incrimination and privacy rights, may also apply. 

State Bar-initiated investigations are not subject to any limitations period. However, if the investigation is triggered by a complaint (client or otherwise), rules of limitation apply. The State Bar's limitations period is found in rule 5.21 of the Rules of Procedure of the State Bar, which are available online. A full explanation is beyond the scope of this article, but absent tolling, the limitations period is generally five years from the time of the conduct to the filing of a State Bar discipline case. If the letter of inquiry addresses conduct that occurred more than five years ago, review the rule or ask the investigator why the investigation is not time-barred.

If the letter of inquiry addresses matters that are the subject of ongoing proceedings, civil, criminal or administrative, you may request that the investigation be abated pending a resolution of the other matter. Abatement of the investigation is discretionary; however, it is often necessary to avoid making admissions to the State Bar that may later be shared with someone suing you in civil court.

Once the above issues have been addressed, understand that you are required to respond to the inquiry. The Business & Professions Code makes it an independent basis for State Bar discipline if an attorney fails to cooperate with a State Bar investigation.

A letter of inquiry often has three parts. First, the investigator summarizes the allegations against you and asks for a response. Second, the investigator may ask specific, numbered questions. Third, the investigator may request documents.

When responding to the summary, first and foremost, be honest. Next, be brief. Avoid the temptation to offer long-winded, hyper-detailed explanations. Take care not to open new areas of inquiry; the investigator can and often will ask follow-up questions. If it makes sense, I often have a theme such as: "the client and I are in a fee dispute, and this complaint was made for leverage" or "This was a simple mistake. I grabbed the wrong checkbook. I now have different colored checks, so it won't happen again." 

Read the specific questions carefully. Answer only the question asked and, if the investigator assumes facts you dispute, correct them. Treat each question as though it is a request for admissions because your responses will be treated as such. I have lost count of the number of times a verbose attorney admitted to unrelated misconduct simply by over-answering a letter of inquiry.

As for the documents requested, the investigator often will request your fee agreement, communications with your client and the client file. If the complainant is not your client, remember that the attorney-client privilege applies. Sometimes, the State Bar will request your trust account journal or bank statements. Only records for the client whose complaint triggered the inquiry should be disclosed; consider redacting the names or details of any other clients who appear in the records. I also generally redact private personal information even when the client is the complainant. Social Security, driver's license and passport numbers should be redacted. If the State Bar really needs the information, they will follow up with a request.

Receiving a letter of inquiry can be incredibly stressful. However, if approached correctly, you can respond with confidence and the next letter you receive may be notification that the investigation is being closed without action.

The Rosing Pott & Strohbehn Ethics and Risk Management Team writes a monthly legal ethics column with practical insights to assist California Practitioners understand cutting edge ethics issues, manage risk, and ensure compliance. More about the Team and the authors--Heather Rosing, Dave Majchrzak, Christine Rosskopf, and Joanna Storey--can be found at https://rosinglaw.com/people/.