Punishing Ethical Violations: Aggravating and Mitigating Factors
| Publication year | 1991 |
| Pages | 243 |
| Citation | Vol. 20 No. 1 Pg. 243 |
1991, February, Pg. 243. Punishing Ethical Violations: Aggravating and Mitigating Factors
In the past several years, the Colorado Supreme Court seems to have increased the severity of sanctions meted out to lawyers who violate the Code of Professional Responsibility. The court often rejects the recommendations of the Grievance Committee and imposes a harsher sanction than that recommended by the Committee.
The body of law relating to the punishment of lawyers is growing weekly. The court uses both case law and the American Bar Association Standards for Imposing Lawyer Sanctions ("Standards"),(fn1) adopted by the ABA in 1986, when meting out punishment. The punishment phase of disciplinary proceedings is taking on more of the characteristics of sentencing in a criminal case: lawyer discipline and criminal sentencing share many of the same underlying purposes and use many of the same criteria for determining the appropriate punishment.
This article briefly reviews the general criteria for imposing sanctions that are set out by the Standards and reviews the factors the court uses, in both aggravation and mitigation, to determine sanctions against lawyers who violate their ethical obligations. Finally, the article looks at probation as an alternative in sanctioning lawyers.
It is important to note at the outset that the punishment recommended by the Grievance Committee is advisory only. The court "has the independent responsibility to determine appropriate discipline."(fn2) The court often imposes a sanction different (and, perhaps, heavier) than the recommended sanction. In doing so, the court relies heavily on the Standards. The court's repeated use of the Standards indicates the justices' agreement with the principle, set out in the Standards, that truly effective lawyer discipline requires adherence to a clearly defined set of criteria in determining punishment.(fn3)
The primary goal of the sanctioning system adopted in the Standards is to protect the public. The other goals are to protect the integrity of the legal system, insure the proper administration of justice, deter future unethical behavior by the lawyer involved, rehabilitate the lawyer if rehabilitation is appropriate and educate the public and the profession generally, in order to deter unethical behavior among all members of the profession.(fn4) These goals are similar to many of the purposes of the Colorado Criminal Code in CRS § 18-1-102.5 with respect to sentencing. The appropriate sanction is determined with reference to these goals.
The Standards set out a model that courts may follow when imposing sanctions. The model requires the court to answer four questions:
1) what ethical duty the lawyer violated;
2) what the lawyer's mental state was;
3) what the extent was of the potential or actual injury caused by the conduct; and
4) whether there are any aggravating or mitigating circumstances.(fn5)
Standards 4.0 through 8.4 provide the sanctions that generally are appropriate for the various types of violations. The aggravating and mitigating circumstances are then used to justify deviations from that sanction. Again, there is a similarity to parts of the model used in sentencing in criminal cases(fn6) and to the principle that mens rea is part of the culpability requirement in criminal cases.(fn7) The Colorado Supreme Court generally follows this model. Each of these four main factors is discussed briefly in the following section.
The nature of the duty that is violated has a major impact on the type of sanction imposed. The duties lawyers owe to clients (such as loyalty, diligence, competence and candor) are considered the most important duties,(fn8) and violations of these duties generally are punished more severely under the Standards than are violations of duties owed to the profession or to the justice system.
The mental state of the lawyer who commits the violation is the second major factor in determining the appropriate sanction. The mental states described in the Standards are those of "intent, knowledge, and negligence."(fn9) As in criminal law, an intentional violation of an ethical duty is considered more serious than a knowing violation of an ethical duty, which, in turn, is considered more serious than a negligent violation. For example, a lawyer who deals with client property improperly normally will be suspended if he or she acted knowingly, but only publicly censured(fn10) if the lawyer acted negligently.(fn11)
The third major factor is the extent of the actual or potential injury caused by the unethical action of the lawyer. It is important to remember that actual injury need not have occurred; potential injury is just as serious as the actual infliction of injury. For example, as noted above, the Standards recommend a public censure of a lawyer who deals negligently with client property. The recommended sanction is reduced to an admonition(fn12) if the actions of the lawyer caused little or no actual or potential injury to the client.(fn13)
The final major factor to be considered when imposing sanctions is the presence of aggravating or mitigating factors. The balance of this article is devoted to a discussion of these factors as used by the Colorado Supreme Court in disciplining lawyers.
Aggravating factors under the Standards are those considerations that may justify an increase in the degree of discipline to be imposed. The ten factors listed in Standard 9.2 are (1) prior disciplinary offenses, (2) dishonest or selfish motive, (3) a pattern of misconduct, (4) a multiplicity of offenses, (5) obstructing the disciplinary process, (6) deceptive practices in connection with the disciplinary process, (7) a lack of acknowledgement of the...
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