Will your State Bar HOA attorney complaint get results?

Over some 10  years, I have witnessed many actions by attorneys, in particular those representing homeowners associations (HOAs), that violate E.R. 1.2(d) and comments (10) and (11), 1.13, 3.1, 3.3 and 4.1.  Numerous State Bar complaints have been filed against them, including one of mine, all of which ended with a finding of no violation.  This is incredible!  Statistically, a percentage other than zero would be expected from the population of events and lawyers.  It seems that the State Bar actually believes that these “officers of the court” are incapable of any wrongdoing!

Rather than let it rest on anecdotal statements, I decided to research the Arizona State Bar records in order to get a better handle on what a Complainant can expect when he files a complaint.  In order to understand the statistics, a brief explanation of the process is in order.

While the complaint process is explained on the AZ State Bar web page under Attorney Discipline,  in short, it’s a two-stage process: State Bar (SB) handling and Supreme Court (SC) handling.  Both organizations conduct a preliminary review and then decide to investigate or not.  As part of the State Bar procedures, it may refer the matter to the Supreme Court disciplinary unit for “formal complaints”, which may result in charges against the attorney  The complainant, the homeowner for example, files a written complaint, may respond to the attorney’s defense, and may be called as a witness by the  Supreme Court legal action against the attorney, but he is essentially a “non-player” although he is the true “plaintiff.”  The “establishment” essentially takes over and runs the show, and is the Plaintiff in the legal action, not the public complainant.  In other words, lawyers prosecute other lawyers in the name of the people.

The data that I obtained from both the State Bar and Supreme Court  web pages was complex and confusing, covering 2005 –  2009.  I made three presentations:  one taking the  SC data on selected ethics ruled that I observed to be very good candidates for complaints against HOA attorneys (E.R. 1.2(d), 1.13, 3.1, 3.3, 4.1); the other from SB data regarding the results of complaints at various stages in the processing the complaints; and a pie chart to show the “bottom line” expectation  that a complaint would result in a sanction or court charge against an attorney, not just an HOA attorney. See statistics.

In summary, 26.9% of the 283 SC cases pertained to these ethics rules.  Of these violations, 44% were 3.3 violations (candor or lying to the court, presumably brought by the judge), and only 2.6% were 1.13 violations (representing an organization as client and actions upon discovering wrongdoing by the client).  Filing a meritorious claim (doing some “look into” the validity of the complaint before acting), 3.1, amounted to 21.1%; and truthfulness to others (honest statements to homeowner, for example), 4.1, amounted to 27.6% of these selected violations.

Over the 4 year period of  2005 – 2008 (see chart), 8,274 written complaints were received by the Bar (48% of combined telephone and written complaints), which served as the basis of the SB recordkeeping.  Total sanctions, both SC and SB, came to 15.7% (9.3% for SC and 6.4% for SB).  The Bar dismissed 35.5%, and SC dismissed 22.1% of the written complaints.  Some 19% were “unaccounted”, being handled in some other arena, pending, or “in process”.

It would seem therefore, based on the above, that some 25% of  the ethics complaints against HOA attorneys should have resulted in the attorney being  charged by the Supreme Court.  And that, on a broader basis, some 15% of the complaints against an HOA attorney should have resulted in some sanction, either by the State Bar or the Supreme Court, considering violations of all the ethics rules.  (It is interesting to note that homeowners, mostly Pro Ses, won 42% of their cases against HOA attorneys at the AZ Off. of Administrative Hearings).

Help the State Bar out, when you file a complaint first research the ethical rules in the Code of Professional Conduct, Supreme Court Rule 42, and then cite them in your complaint.