When fashioning a sanction in attorney discipline cases, the Supreme Court will consider both aggravating factors and mitigating factors. Bar Counsel must prove any aggravating factors by clear and convincing evidence, and the respondent-attorney must prove any mitigating factors by a preponderance of the evidence. AGC v. Edwards, 462 Md. 642, 708, 202 A.3d 1200, 1237 (2019). A key mitigating factor is often whether the respondent-attorney made timely good-faith efforts to make restitution or to make up for the misconduct.
In AGC v. Brooks, 476 Md. 97, 258 A.3d 266 (2021), the Court of Appeals analyzed the timing of good-faith efforts to make restitution as a mitigating factor. The court’s precedents showed that restitution efforts would not be considered timely and in good faith if they came “long after [the attorney’s] dispute with [the client] and after [the client] had filed her complaint with Bar Counsel.” Id. at 143, 258 A.3d at 292-93. Timeliness likely depends on the case, but the respondent-attorney in Brooks, though remorseful, waited seven months after receiving Bar Counsel’s petition for disciplinary relief or remedial action to make restitution, which the court found was too late.
The bottom line is, if your case involves restitution, you should (1) acknowledge your mistake, show remorse, and (2) make timely restitution, preferably before Bar Counsel starts investigating.
George Mahaffey advises and defends a wide variety of clients in professional liability matters. He handles ethics-related matters on behalf of accountants, attorneys, engineers, design professionals, and financial services and insurance professionals.
Goodell DeVries defends various professionals in Maryland, the District of Columbia, and Virginia, including lawyers and law firms. 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 us at EthicsHelp@gdldlaw.com.
