By Mark D. Killian
There is a group of lawyers at The Florida Bar who spend a good part of the day on the phone talking with clients. But these attorneys aren’t talking with their clients; they’re talking to yours.
These lawyers operate The Florida Bar’s Attorney Consumer Assistance Program (ACAP). Their job is to help weed out many baseless complaints against lawyers and improve the speed of the grievance process. They often are able to cool off angry clients and save some Florida attorneys from getting involved in the Bar’s disciplinary system.
Launched in 2001, ACAP was originally set up to handle telephone inquiries with the goal of resolving minor disputes between attorneys and clients before they became formal grievances. While that is still a large part of their job, ACAP now is the central intake for complaints against all lawyers across the state.
When a grievance is filed, “ACAP handles the initial review of the complaint, generates the letter requiring the attorney to respond to the allegations, and allows time for the complainant to file a rebuttal,” ACAP Director Shanell Schuyler said. “Staff attorneys review documents and conduct an investigation to determine whether further investigation is warranted or whether the matter should be closed at the staff level because the evidence is insufficient to prove a rule violation by clear and convincing evidence.”
ACAP also notes the nature of the grievances.
“Most grievances are filed based upon some perceived neglect of the attorney or interference with justice, such as noncooperation with opposing counsel, harassing discovery requests, or not noticing the other side for hearing or depositions. Grievances are also filed because of a lack of communication and misrepresentation,” Schuyler said.
In 2015, the eight ACAP lawyers and six program assistants fielded almost 21,000 requests for assistance.
“Our program assistants answer an average of 3,500 calls per month, process 2,200 pieces of incoming mail and roughly the same amount of outgoing mail per month, and scan more than 23,300 pages of documents per month,” Schuyler said.
At the height of the foreclosure crisis in 2009-10, ACAP handled 25,318 requests for assistance, of which about one-third were transitioned to formal complaints, meaning the Bar received a written, sworn complaint and the initial review revealed that the alleged conduct, if proven, would constitute a violation of Bar rules. Schuyler said roughly one-third of the cases investigated are transferred to branch offices for further investigation.
The ACAP hotline is open Monday through Friday from 9 a.m. to 5 p.m. Callers are able to speak with a staff attorney about the conduct of a specific lawyer and whether such conduct violates Bar rules. ACAP staff is prohibited from giving legal advice and may only assist callers by educating them about whether the lawyer’s conduct is a violation of Bar rules.
As an example, Schuyler said, ACAP may receive a call where the client explains that her slip-and-fall case was settled two months ago, but her lawyer has yet to disburse her money.
“ACAP educates the caller by indicating that if there are doctor, hospital, or Medicare/Medicaid liens, the disbursement may be delayed until the liens are negotiated,” Schuyler said.
Many of the complaints boil down to a lack of communication between attorney and client.
“ACAP attorneys often encounter a caller who states, ‘My lawyer will not call me back. I’ve tried to reach him for two weeks without a return call.’” Schuyler said. “If the caller consents, ACAP will contact the lawyer and ask the lawyer to call the client with a status update.”
Other callers don’t necessarily want to file a complaint, but are uncertain about something that their attorney has said or done. ACAP then works to help the clients understand that the attorney may have legal or ethical reasons for his or her actions.
Many of the calls don’t fall under the purview of lawyer regulation, and those are forwarded to other resources for assistance.
For instance, if there is a fee dispute, ACAP will refer the parties to the Bar’s mediation and arbitration program.
“These are free services that are offered by The Florida Bar,” Schuyler said. “We have volunteer mediators and arbitrators throughout the state. The Florida Bar does not charge anything for that program, but we do have to get the consent of the parties in order for a mediation or arbitration to move forward.”
Because unhappy clients contact ACAP to complain about their lawyers, the ACAP attorneys are able to step in and encourage the attorneys to resolve the client’s concerns before the complaint form is ever provided to the caller.
Schuyler said ACAP doesn’t take calls from just clients, but anyone who is having an issue with a lawyer.
“So that could be an opposing party relationship, or that can be a fiduciary relationship such as in a probate estate,” she said. “We are able to educate consumers over the phone about why a lawyer is not able to talk with them directly.”
ACAP also offers web-based resources, including a question-and-answer forum.
“A lot of people are very tech savvy these days, and they go to the website first to get their questions answered, so we always want to make sure our portion of the website is accurate and informative. The website directs callers back to our ACAP hotline if they have additional questions,” she said.
Some of the Q and As on the website include:
• What are my rights as a client?
• How do I fire my lawyer?
• How can I find out the status of my case if my lawyer does not call me?
• How can I get my file?
• What can I do if my lawyer’s trust account check bounced?
• What should I do when my lawyer did not pay my medical bills in my personal injury case?
• What can I do if I don’t agree with my lawyer’s bill?
• Why is it taking my lawyer so long to disburse my settlement?
• Can my lawyer settle my case without telling me?
“Our numbers show that ACAP performs a valuable service for both the public and the profession. When we see that less than one- third of the calls that come to the department end up in the discipline system, the benefits of ACAP are readily apparent. It is extremely rewarding when we can assist the public with issues they are having with attorneys and also assist our attorney members with resolving disputes that they might have with clients before they reach the level of a full-blown grievance,” Schuyler said.