The Impact of Mitigators and Aggravators in the Attorney Disciplinary Process - Part 1

By: George S. Mahaffey | 12.13.18 | Media

We handle litigation involving, among others, lawyers and law firms in various jurisdictions including Maryland, the District of Columbia, and Virginia.  In litigating and trying cases against bar counsel, we inevitably are faced with the impact of mitigating and aggravating factors when considering sanctions. This short article provides an overview of what you need to know about mitigators and aggravators and how they can impact the outcome in an attorney disciplinary case.

Quick Takeaways

One of the last things a court does in the Maryland attorney disciplinary process is examine what kind of sanction, if any, to impose.  As part of its analysis, the court: 

  • Must fashion a sanction for the attorney that is commensurate with the nature of the misconduct;
  • The style and severity of the sanction will depend on the facts of each case, taking into account any mitigating or aggravating factors;
  • There are generally 14 recognized mitigating factors;
  • 12 aggravating factors;
  • And some mitigating and aggravating factors are more important than others.

Overview of Mitigating and Aggravating Factors

In imposing sanctions on attorneys, courts seek to “to protect the public and the public’s confidence in the legal profession rather than to punish the attorney ... [and] to deter other lawyers from violating the Rules of Professional Conduct.”[1]  To accomplish this, the sanction should be “commensurate with the nature and the gravity of the misconduct and the intent with which it was committed.”[2]  Thus, the style and severity of the sanction “depends upon the facts and circumstances of the cases, taking account of any particular aggravating or mitigating factors.”[3]  What this means, is that any sanction you are facing can often turn on the number of mitigating factors and aggravating factors present.  The more mitigating factors there are, the better off you will be when it comes time to arguing about possible sanctions.   

Mitigating Factors

Maryland’s courts have generally recognized the following 14 mitigating factors when fashioning a sanction:

  • absence of a prior disciplinary record;
  • absence of a dishonest or selfish motive;
  • personal or emotional problems;
  • timely good faith efforts to make restitution or to rectify consequences of misconduct;
  • full and free disclosure to disciplinary board or cooperative attitude toward proceedings;
  • inexperience in the practice of law;
  • character or reputation;
  • physical disability
  • mental disability or impairment;
  • delay in disciplinary proceedings;
  • imposition of other penalties or sanctions;
  • remorse;
  • remoteness of prior rules violations;
  • and finally, the unlikelihood of repetition of the misconduct.[4]

In practice, we have not found that not all mitigating factors are created equal.  The first two mitigating factors, the absence of prior discipline and a dishonest or selfish motive, are particularly important along with experience in the practice of law, remorse, impairments,[5] and unlikelihood of repetition of the misconduct. 

Aggravating Factors

Courts have generally recognized the following 12 mitigating factors when fashioning a sanction:

  • prior disciplinary offenses;
  • a dishonest or selfish motive;
  • a pattern of misconduct;
  • multiple offenses;
  • bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency;
  • submission of false evidence, false statements, or other deceptive practices during the disciplinary process;
  • refusal to acknowledge the wrongful nature of conduct;
  • vulnerability of victim;
  • substantial experience in the practice of law;
  • whether he or she displayed indifference to making restitution;
  • illegal conduct; and
  • the likelihood of repetition of the misconduct.[6]

In practice we have seen that courts often place greater weight on certain aggravating factors including, in particular, the first four.  As you would expect, courts will often impose the harshest sanctions on experienced lawyers who intentionally and repeatedly (for personal gain) engage in improper activities and then, when caught, refuse to acknowledge their wrongdoing or express remorse. If you have any questions concerning anything in this short article, please contact George Mahaffey and be on the lookout for additional material concerning attorney ethics and the disciplinary process. If you would like to get a larger overview of the attorney grievance process in Maryland, read the eBook published recently by Mr. Mahaffey.

If you are interested in having Mr. Mahaffey speak to your organization on the topic of attorney ethics violations, or other professional liability issues, please contact us with your schedule.

[1] Att’y Grievance Com’n v. Taylor, 405 Md. 697, 720, 955 A.2d 755, 768 (2008).
[2] Id.  See also Att’y Grievance Comm’n v. Briscoe, 357 Md. 554, 568, 745 A.2d 1037, 1044 (2000) (holding that under Maryland law, the “gravity of misconduct is not measured solely by the number of rules broken but is determined largely by the lawyer’s conduct.”)    
[3] Id.  
[4] AGC v. Sweitzer, 395 Md. 586, 599, 911 A.2d 440, 448 (2006).    
[5] Impairments often take the form of some kind of dependence (alcohol or drugs), or mental health problems and will generally need to be supported by testimony or evidence from a professional, e.g., a physician, counselor, or treatment specialist. 
[6] AGC v. McLaughlin, 456 Md. 172, 204, 171 A.3d 1205, 1223 (2017). 

See Part 2 of this post, "The Importance of Mitigation in Attorney Discipline Cases."