I’ve written previously about the importance of providing mitigation evidence in attorney discipline cases. (See "The Impact of Mitigators and Aggravators in the Attorney Disciplinary Process"). A recent attorney discipline case, AGC v. Yates, 467 Md. 287, 225 A.3d 1 (2020), reinforces why evidence of mitigation can be particularly powerful in cases alleging Rule 19-308.4(c) violations.
In Yates, the Court of Appeals found that the respondent-attorney's "willful failure to file income tax returns and timely pay the tax due violates the rules of professional conduct," 467 Md. 291, 225 A.3d at 3, including Rules 19-308.4(a)-(d). Ordinarily, a breach of Rule 19-308.4(c) is among the most serious of rule violations, but in Yates, the Court of Appeals rejected Bar Counsel's indefinite suspension recommendation and instead imposed a 60-day suspension almost entirely because the respondent-attorney established eight mitigating factors. Id. at 306, 225 A.3d at 12-13. The eight mitigating factors included: absence of a dishonest or selfish motive; personal or emotional problems; cooperation with Bar Counsel’s investigation; good character and reputation; physical or mental disability or impairment; good faith efforts to rectify the consequences of the misconduct; imposition of other penalties or sanctions; and remorse. Id.
The takeaway from Yates is that strong mitigation evidence can militate the harshest of sanctions in cases with bad facts, including those with Rule 19-308.4(c) violations. This is clear from Judge Watts’s dissent, in which she took the time to highlight (and criticize) the fact that Yates's significant evidence of mitigation was enough to result in a 60-day suspension when in every other similar case, the respondent-attorney received an indefinite suspension. Id. at 317, 225 A.3d at 18-19. The bottom line is, if you are preparing to try an attorney-discipline case, make sure your mitigation evidence is well established.
Goodell DeVries defends various professionals and organizations, including lawyers and law firms, in Maryland, the District of Columbia, and Virginia. Many of these cases are ethics matters involving Bar Counsel. If you have questions about the above or are a Maryland lawyer facing discipline, please contact the author, George Mahaffey.
See Part 1 of this post, "The Impact of Mitigators and Aggravators in the Attorney Disciplinary Process."
