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:
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:
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:
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."