BEWARE OF FILING COMPLAINTS AGAINST ATTORNEYS WITH THE FLORIDA BAR
BEWARE OF FILING COMPLAINTS AGAINST ATTORNEYS WITH THE FLORIDA BAR
February 21, 2011
By David Arthur Walters
What would you do if you found yourself in a situation where you were being forced by an affluent and well connected member of the Florida Bar to choose between succumbing to his legally and ethically questionable demand to pay $100,000 for a $1,600 legal bill you believed you did not owe in the first place, or else submit to his inordinate power as a wealthy officer of the court to financially ruin you? What if you thought his demand was a form of extortion, i.e. a coercive threat to wrench or twist money out of you, a threat that used to come under the broader heading of “libel” in the old days?
What, indeed, would you do? Do you think you would complain to the integrated Florida Bar, which is the part and parcel of the Supreme Court of Florida responsible for licensing and disciplining attorneys, all of whom must be members in order to practice in the state? Think again, after taking the following into consideration.
The attorney may not hesitate to use every means at his disposal including his professional monopoly’s privileged access to the courts to bludgeon you into silence, using the statements in your complaint to the Bar to sue you for multiple counts of libel, deliberately prolonging the abusive process with flurries of motions until your defense funds are almost exhausted and you are intimidated into silence.
What? What happened to the constitutional right of free speech? What of the right to address the government for redress of grievances? After all, lawyers are officers of the judicial branch of government, are they not? And you sought redress from that branch of government, never mind the conflict of interest. You may think that complaints filed with public agencies are absolutely privileged; that is, you cannot be sued by the person you complain about even if you make defamatory statements to the officials. Mind you that your allegations in your case were not otherwise published except that a few of them were made to the attorney’s assistants during the course of business. This is not a question of publishing true or false statements to a third party about private persons that happen to harm their reputations.
Yes, you have your constitutional rights, and you may win your case in the end because the lawsuit was frivolous and apparently maliciously prosecuted. But exercising your rights might cost you a pretty penny, especially if your attorney botches the “offers of settlement” for the eventual recovery of expenses by the prevailing party. Your opponent at one point may claim that he would be entitled to $600,000 in costs and fees if he prevailed. But say you prevail, and your fees exceed $250,000, which you raised by taking out mortgages on your home, but now you are left empty-handed, and are afraid to say anything further about the matter lest you get slapped with another suit.
Knowing that this could happen to you, knowing that perhaps the attorney you complain about to the Bar will use every means at his disposal to shut you up and ruin you financially, would you fight for your constitutionally protected ground at all costs?
What would you do if you decided to be a good citizen at all costs, and therefore pursued your complaint with the Florida Bar, only to receive a response from the regulators clearly indicating that they had no problem whatsoever with their licensee’s conduct?
The message thereby conveyed to members of the Bar would be that it is all right to sue critics into silence; indeed, the Bar’s decision would encourage lawyers to do just that with the blessing of the strong arm of the Supreme Court of Florida.
The dismissal of your complaint to the Bar may come as a shock to you because, before you filed it, the Bar advised you to read its Consumer Information Pamphlet, wherein ones find precautionary words under the heading “A Word About Confidentiality and Immunity.” If you “limited your inquiry and communication about it to Bar staff,” reads the clause, “investigators and grievance committee members; you should not be successfully sued. While, generally, you cannot be successfully sued if you do not act in bad faith or with malice, we emphasize successfully. The Bar cannot guarantee that the lawyer will not attempt to bring legal action against you.”
What? What will the Bar do if a lawyer does bring such an action? Apparently nothing! Should there not be a Bar Rule against such prosecutions, subjecting the attorney to permanent disbarment? Why has not the Bar done something to prohibit such travesties of justice? After all, the Florida Supreme Court readily recognizes “the inequitable balance of power that exists between an attorney who brings a defamation action and the client who must defend against it,” so why does it not have its Bar arm nip such suits in the bud before they bloom in the courts? Again, the Bar and the Court are one; what hypocrisy!
And what is the meaning of, “if you do not act in bad faith or with malice….” The courts have had difficulty forging an adequate definition for those terms. Besides, you thought that absolute privilege in making complaints to the government is supposed to protect you from liability for statements thus defined. Of course the government itself has remedies available to it for curbing abuse.
A frivolous lawsuit by some attorney you complained about may cost you a quarter-million dollars and your home to boot, not to mention years of emotional distress and perhaps your job and family. Oh, my, it is sure nice to know that it was unsuccessful!
The Bar’s Attorney/Consumer Assistance Program may try to dissuade you from filing a complaint against an attorney. Be careful of whom you complain about if the Bar does not dismiss the complaint out of hand. There are thousands of complaints filed against attorneys each year. The vast majority of them are routinely dismissed as being without merit.
Mind you that complainants are at a disadvantage right out of the gate: they have to file their complaints under penalties of perjury, but the lawyers do not have to respond under penalty of perjury – maybe the Bar Rules will keep them from lying. You may be charged with perjury if you lie in your complaint, for your absolute privilege only protects you from the person you may have defamed; but try to prove that the attorney lied and you may be sued again.
If you believe this story is too bad to be true and is merely hypothetical, you are mistaken. Stay tuned for publication of the facts including the public documents.