Since filing a complaint, the homeowner feels threatened

Question: Of 36 homeowners in my common-interest development, the association’s attorney has singled me out because I filed a complaint against him with the state bar.

He’s using the board to threaten me with temporary restraining orders or cease-and-desist letters relating to the association.

This attorney has caused me to be unjustly vilified in my community. I want to file another state bar complaint against him but fear harsher retaliation.

What happens to a state bar complaint once it is filed, and is it possible to prevent attorney retaliation for filing a complaint?

Answer: The State Bar of California advises us that once a complaint is filed, a “summarization” including the complainant’s name is forwarded to the attorney to answer. The actual complaint is not sent to the attorney and a copy of that complaint can be requested only if the bar files charges.

Under Business and Professions Code Section 6094(a), communications to the disciplinary agency relating to lawyer misconduct, disability or competence, or any communication related to an investigation or proceeding and testimony given in the proceeding, are privileged, and no lawsuit may be instituted against any person based on that bar complaint.

However, this same statute fails to protect a complainant from other types of harassment or intimidation.

The statute needs to be amended to reflect tactics that can be used against complainants and to ban such machinations from an attorney’s arsenal.

There are problems with Section 6094.

Reporting an attorney to the state bar begins an investigation. Nothing prevents the attorney from disclosing the investigation and the name of the person doing the complaining to others.

But no charges of “retaliation” can be lodged against the attorney at the bar unless the attorney files a lawsuit against the complainant. If the attorney doesn’t sue the complainant, then the complainant’s only recourse is to pursue other civil remedies.

Section 6094 doesn’t address verbal or written attacks; they’re matters for civil court. Taking the lawyer to civil court means additional costs for the complainant and more confrontations with the problematic attorney. Many complainants can’t afford a lawsuit.

Most bar investigations are not speedy, and even if the victim prevails, the bar’s restitution program is woefully inadequate, complicated to use and imposes time constraints.

Unfortunately, Section 6094 does not protect consumers in situations like the ones you describe. However, the state bar Rule of Professional Conduct 5-100(A) provides that an attorney “shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.”

When the attorney threatens restraining orders, he is threatening litigation, which is in violation of Civil Code Section 47. That code section makes the original complaint and any other communication relating to lawyer misconduct to the bar privileged, meaning the attorney cannot use it as a basis for a lawsuit against the complainant.

Nothing prevents you from filing a second state bar complaint alleging a violation of the Rule of Professional Conduct against the same attorney.

Harassment and other tactics designed to hold you up to “hatred, contempt or ridicule” within your association are also the basis for a civil lawsuit against the attorney for slander or libel. Titleholders must conscientiously document everything that happens, even though it’s laborious, including what appears to be attorney retaliation.

All of those documented events may later become evidence to prove retaliation.

Attorneys have no legal right to threaten homeowners because a complaint has been filed, and each threat may form the basis for another complaint. However, investigations can occur only when consumers have the courage to file complaints and statutes are in place to protect those filing.

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Send questions to P.O. Box 11843, Marina del Rey, CA 90295 or noexit@mindspring.com.