Sometimes in the legal community, the phrases “claim” and “bar complaint” seem to be used interchangeably, or at least in a manner that suggests the two are invariably linked. Although it’s easy to understand why that conclusion may be made, the two are not as related as one might think.
What is a bar complaint?
A bar complaint stems from a grievance alleging unethical or illegal conduct by a lawyer. Basically, a grievant is asking the Oklahoma Bar Association to take notice of a potential violation, similar to reporting a potential crime to law enforcement.
A formal grievance must be made via an official form, signed and submitted to the Office of the General Counsel (GC). Under the supervision of the Professional Responsibility Commission (PRC), the GC investigates all matters involving alleged misconduct or incapacity of any lawyer and reports the results of investigations to the PRC. The PRC then determines the disposition of grievances or directs the instituting of a formal complaint for alleged misconduct or personal incapacity of an attorney with the Oklahoma Supreme Court.
An unhappy client or unfavorable outcome is not necessarily a violation of law or ethics rules, so many grievances may be found to be without sufficient grounds.
For the protection of all parties, grievances and investigations are kept confidential by statute. However, if one proceeds to the Professional Responsibility Tribunal (PRT) for hearing, those hearings are published in advance in the Oklahoma Bar Journal and are open to the public. Then, if or when the Supreme Court issues a ruling on formal discipline, that information also becomes public record, including on OSCN.
What is a claim?
A professional liability (or “legal malpractice”) claim is a demand for compensation for an alleged error or omission made by the lawyer. The claimant is seeking a monetary award, but is not necessarily alleging ethical misconduct or illegal activity by the lawyer.
Another significant difference of a claim is the procedure, and is wholly separate from any investigation or action undertaken by GC or PRC. A claim is made in writing to the attorney’s insurance carrier. The carrier will investigate and, if the claim has merit, the carrier will attempt to resolve the matter by making an offer to settle. If the carrier does not find a meritorious claim, it will reject the claim. The claimant may either agree to a settlement or file a lawsuit if they are unhappy with the claim’s offer or dismissal.
It is important to note, however, that this demand for compensation is only considered an insurance claim if the lawyer actually has insurance. Without professional liability (again, or “legal malpractice”) insurance, it cannot be an insurance claim, and as such the burden of defense and all expenses – even in cases without merit – fall solely on the lawyer or firm.
So, what is their relationship?
The relationship between claims and grievances is largely nonexistent. For example, a DUI could result in a grievance or bar complaint, but not likely an insurance claim. Or, conversely, missing a deadline may result in a claim but probably would not rise to the level of prosecution as a bar complaint. That is not to say the catalyst for a grievance cannot be the same as that of a claim. One of the best examples is a conflict of interest, which for obvious reasons could result in both. In that case, however, the handling of each would be independent.
Both a grievance and claim may be made with or without merit and both require some level of investigation or research, as well as possibly incurring defense cost. Both are also scary for any lawyer to face at any point in their career. The best defense against a grievance is staying well within the law and ethics rules, including thorough documentation and client communication. However, because any lawyer can be sued at any time for virtually any reason, the strongest defense against a claim is having the best professional liability insurance possible. This includes not just making certain your limits are adequate, but that your insurer has a familiarity with the courts and local counsel to ensure you have the best possible representation if and when it’s needed. As always, if you have any questions, feel free to contact us and we’ll be happy to help.
Author
Laura joined OAMIC in 2020 with more than 10 years of experience in communications and marketing. Immediately prior to joining OAMIC, Laura worked for a statewide legal association, at which she gained an in-depth understanding of the needs of lawyers across the state and how to help address the challenges they face as they navigate their careers.