November 27, 2018
In September, we focused on aggravating factors that may increase a disciplinary sanction against an attorney who has violated the Illinois Rules of Professional Conduct. This article will focus on factors that may mitigate an attorney’s misconduct and may lessen the severity of a disciplinary sanction.
Before the Court decides whether to impose a sanction for an attorney’s conduct, the attorney has an opportunity, during an investigation of the conduct, a hearing or other disciplinary proceeding, to explain the circumstances of the conduct. Attorneys are required to cooperate in their disciplinary proceedings. In re Smith, 168 Ill.2d 269, 296 (1995). An attorney’s cooperation and candor assist the Court in assessing the attorney’s conduct, as well as the attorney’s ability to practice law responsibly. Not only is an attorney’s cooperation and candor important to the disciplinary process, but an attorney’s full cooperation and candor is a mitigating factor. By fully cooperating in disciplinary proceedings, the attorney demonstrates respect for the inherent authority and power of the Court to regulate and discipline attorneys.
One purpose of attorney regulation is to protect the public from harm by unscrupulous attorneys. A mitigating factor in disciplinary proceedings is restitution to persons who have suffered financial or other harm due to an attorney’s misconduct. In re Rolley, 121 Ill.2d 222, 234 (1988). For example, an attorney who accepts a fee from a client but fails to perform services to earn that fee might make restitution by refunding the fee. An attorney might also repay misappropriated funds, disburse funds belonging to a client or third party, or cooperate with a client’s subsequent attorney in resolving the client’s legal matter. Possible acts of restitution are as varied as the client matters that attorneys encounter. However, restitution must be voluntary and timely to be a significant mitigating factor. Providing restitution only after the client submits a grievance to a disciplinary authority diminishes the significance of the restitution as a mitigating factor.
An important issue in every disciplinary matter is the extent to which an attorney accepts responsibility for misconduct and recognizes the wrongfulness of the misconduct. When an attorney accepts responsibility for conduct violating the ethics rules, the attorney focuses on their role in the events that resulted in disciplinary proceedings. By acknowledging the wrongfulness of the conduct, the attorney may demonstrate an understanding of the attorney’s professional obligations. Genuine remorse, along with the attorney accepting blame for misconduct, is a mitigating factor because it indicates that the attorney is unlikely to engage in misconduct in the future. See In re Mason, 122 Ill.2d 163, 173-74 (1988). Even so, an attorney is not required to concede misconduct when the attorney objectively or reasonably believes that there was no misconduct.
At times, evidence produced at disciplinary proceedings demonstrates that an attorney’s mental health or substance abuse problems caused the attorney’s misconduct. If the attorney further demonstrates a sustained period of rehabilitation, the attorney’s personal problems may be a significant mitigating factor that influences the severity of any disciplinary sanction. The sanction might include a period of probation during which the attorney must follow a medical professional’s continuing treatment recommendations. Such outcomes in a disciplinary case allow an attorney who no longer poses a likely threat to the public to practice law while successfully complying with a rehabilitation plan. Impaired attorneys who need assistance with mental health problems, substance abuse or addiction may receive help by contacting the Illinois Lawyers’ Assistance Program (LAP). LAP provides confidential assistance to lawyers, judges and law students. See Ill. Sup. Ct. R. Prof. Conduct 1.6(d).
Similarly, an attorney’s motive may have a bearing on the sanction. The absence of a dishonest or selfish motive is a mitigating factor. At the same time, as with other mitigating factors, the lack of a dishonest or selfish motive does not negate or excuse the attorney’s misconduct. An attorney who violates the Rules of Professional Conduct but does not have a dishonest motive still violates the Rules. In re Mulroe, 2011 IL 111378, ¶23, 956 N.E.2d 422, 428. The attorney may still be the subject of a public disciplinary proceeding and be sanctioned by the Court.
An attorney may present evidence of the attorney’s character or reputation. “Good moral character in attorneys includes honesty and the practice of good morals in all their dealings.” In re Alschuler, 388 Ill. 492, 503 (1944). Character or reputation evidence might include facts of the attorney’s background and recent professional and personal activities, including charitable work. The attorney may present witnesses attesting to the character or reputation of the attorney in the community. The Court may consider such evidence in mitigation. Compelling character testimony showing that an attorney has otherwise led an exemplary life may have a favorable effect on the sanction imposed by the Court.
A related mitigating factor is a lack of prior discipline in a long legal career. An attorney who has never been the subject of a disciplinary proceeding may present that fact as a mitigating factor. However, the attorney’s experience in the practice of law might undercut the lack of prior discipline because the attorney’s experience should have informed the attorney’s judgment, such that the attorney should have known that the conduct was improper.
Conversely, inexperience in the practice of law may be a mitigating factor. An attorney’s inexperience might result in poor or uninformed decisions resulting in a violation of the ethics rules. Still, inexperience is not a blanket excuse for ignoring professional obligations or committing misconduct. For example, both inexperienced and experienced attorneys should know that stealing money is wrong. “Inexperience in the practice of law is no excuse for the intentional conversion of a client’s money.” In re Rotman, 136. Ill.2d 401, 423 (1990).
In determining a sanction for an attorney’s misconduct, the Court has held that the severity of a sanction “imposed in a disciplinary proceeding is based upon an evaluation of the evidence, the respondent's past record, his attitude at the disciplinary proceeding, and the best interests of society.” In re Imming, 131 Ill.2d 239, 260 (1989). To that end, the Court weighs mitigating factors. Although mitigating factors do not necessarily disprove allegations of misconduct, mitigating factors may inform the circumstances surrounding the attorney’s misconduct. In weighing both the aggravating and mitigating factors in light of any proven misconduct, the Court imposes sanctions that protect the public from unethical attorneys and maintains the integrity of the legal profession.