October 10, 2006
Sanctioning Misconduct: Where the Rubber Meets the Road
by Michael S. Frisch
The Rules of Professional Conduct as adopted by the various states require the imposition of professional sanction for ethical misbehavior. In the main, the sanctions are, in contrast to earlier times, a matter of public record. Some jurisdictions still allow for private admonition or non-public diversion for minor violations. For more serious ethical breaches, jurisdictions vary in the evaluation of mitigating factors in determining the appropriate quantum of discipline for misconduct. The consideration of aggravating and mitigating factors present important policy questions with respect to the regulation of the legal profession.
When I was a disciplinary prosecutor, it seemed like every lawyer who engaged in serious misconduct had an excuse/justification for lying, cheating and/or stealing. My jurisdiction determined that if alcoholism caused the misconduct and the attorney was recovering, probation was appropriate in lieu of disbarment. The same result was reached if the violations were caused by abuse of prescription drugs. However, the courts "drew the line" (pun intended)in holding that cocaine abuse would not be treated as a mitigating factor. The alcohol holding did open a floodgate of claims of mitigation ranging from ADD as an excuse for neglect of client matters to a diagnosed sexual disorder as mitigation for criminal sexual abuse of a child.
The rare case where the attorney acknowledged that the misconduct was a result of a moral lapse rather than claiming that demon rum or some other condition caused the violations was so refreshing to me that I would consider "taking personal responsibility" the most important mitigating factor of all.
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