September 24, 2018
When an attorney is found to have violated the Illinois Rules of Professional Conduct, the severity and breadth of that attorney’s misconduct is the predominant consideration in determining what sanction will be imposed. The Court will also consider any aggravating or mitigating factors, relevant disciplinary precedent, the issue of deterrence, and protection of the public and the administration of justice. There are numerous aggravating factors that might influence the final sanction ordered by the Supreme Court. This article will identify and explain several types of aggravating factors.
Perhaps the most serious aggravating factor is prior discipline for misconduct, especially when the prior discipline is relatively recent and was imposed for misconduct similar to the misconduct at issue in the latter proceeding. The Supreme Court has instructed that an attorney who has been disciplined should have a “heightened awareness of the necessity to conform strictly to all of the requirements of the Rules of Professional Conduct.” In re Storment, 203 Ill. 2d 378, 401 (2002). When an attorney commits misconduct and is disciplined, and then repeats the same or similar misconduct, one can readily conclude that the attorney is unwilling or unable to practice law in an ethical fashion. Not only does such attorney present a danger to future clients, but there is a risk that the public will view the attorney discipline system as ineffectual if a significant sanction is not ordered in the second disciplinary proceeding. The same conclusion generally applies when an attorney commits new misconduct while going through the disciplinary process. Conversely, prior discipline that is many years old, and that was imposed for misconduct unlike the misconduct at issue in a latter proceeding, may only minimally heighten the latter sanction.
A related aggravating factor may arise when the evidence at a disciplinary hearing reveals additional misconduct by the attorney that was not the subject of disciplinary charges. Pursuant to the Supreme Court’s decision in Storment, uncharged misconduct may be considered in aggravation of a sanction when the uncharged misconduct is similar to the charged misconduct and is established in the record. The Court has noted, however, that uncharged misconduct may not, of itself, result in discipline. The Court differentiates between the situation where evidence of uncharged misconduct increases a sanction for charged misconduct, which is permitted, and the situation where an attorney is sanctioned for misconduct that was not charged, which is not permitted.
One circumstance that always results in a harsher measure of discipline is when the attorney’s misconduct causes harm to his or her client. The harm might be financial harm, as when an attorney misappropriates a client’s settlement or escrow money, or when the attorney’s misconduct forces a client to hire another attorney to ameliorate the damage done. It might be legal harm, as when an attorney’s neglect of a client’s matter results in dismissal of a court proceeding or the expiration of a statute of limitations. The harm might be in the form of anxiety or frustration caused when a client is unable to communicate with the attorney to learn the status of a matter that was entrusted to the attorney. In In re Smith, 168 Ill. 2d 269, 285 (1995), the Court rejected the attorney’s claim that his clients suffered no real harm from his neglect because they eventually received the divorce judgments they sought. The Court stressed that each of the clients had suffered “considerable and needless anxiety.” The most egregious harm-to-a-client scenario is when an attorney’s conduct causes virtually any kind of harm to an elderly or infirm client. That circumstance will increase a disciplinary sanction significantly, as was shown in In re Rotman, 136 Ill. 2d 401 (1990), where a young attorney was disbarred for misappropriating funds from the estate of a client who had been adjudicated incompetent.
An attorney whose misconduct is driven by greed or self-interest will generally receive a heightened sanction for that misconduct. It is common for sanctions for misappropriation of client or third-party funds to be increased when the attorney has used the money to purchase luxury items or maintain an extravagant lifestyle. It is also common for attorneys to receive more significant sanctions for conflicts of interest when the attorney has pursued his own interests over those of clients.
An attorney’s attitude toward the misconduct, the attorney’s clients, or the disciplinary proceedings may alter the sanction ultimately imposed. For example, an attorney who has committed serious misconduct and who seeks to minimize what he has done or his role in the events generally will receive an enhanced sanction for that misconduct. Likewise, an attorney who denigrates his clients or their matters risks a more onerous disciplinary sanction. The Supreme Court once took an attorney to task for insinuating that his neglect of client matters was not serious because the cases he neglected were small-value cases. The Court found “troublesome the implication in respondent’s remarks that there is some cut-rate version of our rules which permits an attorney to agree to represent a client in a matter and then ‘move on’ when the case fails to meet his or her expectation.” In re Samuels, 126 Ill. 2d 509, 530 (1989). An attorney can expect a heavier measure of discipline when he or she exhibits a defiant attitude towards the disciplinary process or attempts to delay or derail the process by filing frivolous motions. An attorney is free to contest the disciplinary charges and put the Administrator to his burden of proof, but the attorney may not cross the line into objectively unreasonable litigation tactics without risking some consequence.
Perhaps the clearest example of an attitude-based aggravating factor occurs when an attorney purposely fails to participate in his disciplinary proceedings, by refusing to answer the disciplinary complaint, engage in discovery, and/or appear for the disciplinary hearing. In that instance, the Court will impose disbarment or a suspension requiring the attorney to prove rehabilitation before being reinstated to the practice of law, on the theory that the attorney has demonstrated contempt for the disciplinary process and the Court, and that any lesser sanction presents an unacceptable risk of harm to the public.
A final aggravating factor, one that is seen only occasionally, is false testimony by an attorney before the ARDC’s Hearing Board. The Supreme Court has called such false testimony “highly unprofessional conduct” that “demonstrates a further unfitness of an attorney to practice law.” In re Stillo, 68 Ill. 2d 49, 55 (1977). Attorneys who are found by the Hearing Board to have testified untruthfully at their disciplinary hearings face an appreciable escalation in the sanction for their misconduct.
The Court strives to balance a number of circumstances and concerns in reaching a sanction for a given attorney’s misconduct. Aggravating factors are a part of that balancing process, and their consideration aids the Court in reaching a fair measure of discipline.