Choosing a Sanction

Choosing a Sanction

Rule 8.4 tells a disciplinary authority what counts as misconduct and says nothing about what to do about it. Its paragraphs reach violating the Rules, criminal acts that reflect on honesty or fitness, dishonesty and misrepresentation, conduct prejudicial to the administration of justice, and harassment or discrimination, yet none attaches a penalty.¹ A panel that finds a violation of paragraph (c) has shown that the lawyer is subject to discipline; it has not shown whether the response should be an admonition or disbarment. The rule supplies the offense, and the sanction system supplies the remedy. This section takes up the question that follows every finding of misconduct: where, between admonition and disbarment, the case belongs.

The answer begins with purpose. Lawyer discipline does not exist to punish the lawyer.² Its preeminent concern is protection of the public, so the sanction depends on the seriousness of the violation, the egregiousness of the facts, the lawyer's prior record, and any mitigating factors.³ A decision-maker who lost sight of that purpose would drift toward reacting to the lawyer's demeanor, to a complaining client's sympathetic story, or to a lurid set of facts, and comparable misconduct would land on different rungs depending on who heard the case. One Kansas record shows how far apart readers of the same facts can land. In In re Gamble the hearing panel recommended a 60-day suspension, the Disciplinary Administrator argued for a longer one, and the Supreme Court imposed six months.⁴

The ABA's Standards for Imposing Lawyer Sanctions supply the usual yardstick. They are followed as at least persuasive authority and guidelines in the substantial majority of states, and only eight states decline to rely on them even as guidelines.⁵ Each state's highest court still decides the sanction, so the Standards guide the choice without binding the court that makes it.

Two subsections follow. The first sets out the framework, the questions that fix a baseline sanction. The second turns to the facts about the lawyer and the misconduct that move the result up or down from that baseline.

The ABA Sanctions Framework

In re Gatti states the method in two sentences. The court first considers the duty the lawyer violated, the lawyer's mental state, and the actual or potential injury the misconduct caused. Those three factors lead to a suggested sanction, which the court may impose or may modify after examining aggravating and mitigating circumstances and its case law.⁶ Counting the adjusting step, the method has four parts, and the word suggested carries weight: the framework produces a starting point and leaves the final choice to the court.

The first three factors measure risk without asking the decision-maker to react to the lawyer's demeanor. The duty identifies whom the misconduct betrayed. The mental state shows what the conduct suggests about the chance of a repeat. The injury records what the misconduct did or threatened to do. The fourth factor then adjusts for facts about this particular lawyer that the first three leave out, and the next subsection takes those facts up.

The duty comes first because the person to whom it is owed explains why the conduct concerns the licensing authority at all. Gatti holds that a lawyer owes the public a duty of honesty and personal integrity, so a lawyer who misrepresented his identity and purpose in order to deceive other people violated his duty to the public to maintain personal integrity. The commentary to ABA Standard 5.13 adds that when the conduct is directly related to the lawyer's professional role, discipline is required even if the conduct is not criminal.⁷ The hearing panels in Gamble and Diaz named the same duty.⁸ One of those lawyers had sent an electronic message to an unrepresented biological mother in an adoption matter, and the other had mailed classified information about detainees out of Guantanamo Bay.⁹ A duty owed to the public points to harm that falls on everyone who relies on lawyers' words, while a duty owed to a client points to harm inside one relationship, and the framework records which is at stake before it asks how culpable the lawyer was.

The mental-state factor has three levels, and keeping them apart is most of the work. The Standards identify intentional, knowing, and negligent mental states, and an intentional act is one done with the conscious objective or purpose to accomplish a particular result.¹⁰ A knowing act sits one step lower: the lawyer is aware of the conduct and its circumstances but does not aim at a particular result. A negligent act sits lowest: the lawyer fails to notice a substantial risk that a careful lawyer would have noticed. The ordering tracks, roughly, what each state of mind suggests about the future. A lawyer who chose a result has shown a willingness that can resurface whenever the same goal returns, a lawyer who merely knew has shown less, and a negligent lawyer presents a problem that attention and training can often cure.

The label comes from the record, and a lawyer's later description of his own state of mind does not change it. The accused in Gatti conceded that he acted intentionally when he misrepresented his identity to two people he telephoned, and that he made false statements to them in order to obtain damaging admissions about a company's file-review practices; the record supported the finding of intent. He nevertheless argued that the court should treat his mental state as negligent, because letters from the Bar's disciplinary counsel had led him to believe he was acting ethically.¹¹ The episode shows where the contest over mental state is fought: on the lawyer's conscious objective, which in Gatti the lawyer himself had conceded. A single course of conduct can also contain several mental states. The Gamble panel found that the lawyer negligently, recklessly, knowingly, and intentionally violated his duty, as detailed in each conclusion of law, so the label attaches to each violation and not to the lawyer as a whole.¹²

The injury factor counts threatened harm as well as harm that occurred, and it measures the threat at the moment the lawyer acted. The accused in Gatti contended that his misrepresentations created no potential for injury because he eventually obtained the information through discovery, and the court called the argument without merit. He had telephoned the two people intending that they make damaging statements about their company's file-review practices, and the potential injury at that moment was that they would say things affecting their legal rights, regardless of any later lawful disclosure.¹³ The rule makes sense because a sanction keyed only to actual harm would depend on whether the target happened to be alert or the facts happened to surface elsewhere, while the lawyer's culpability and the risk to future clients stay the same either way.

Gamble shows the injury inquiry from the other side. The lawyer testified that the adoption went through, so the adoptive parents were not injured, and that he alone had been injured. The panel found actual and potential serious injury to the legal system, the legal profession, the biological mother, and the adoptive parents, plus potential injury to the baby, and it called his inability to acknowledge any injury beyond his own time and the panel's time troubling.¹⁴ In Diaz the court observed that disclosing which team was assigned to each detainee could injure the United States and could increase the chance that team members would be publicly identified, putting them at personal risk from detainees' supporters around the world.¹⁵

Two Standards show how the mental-state finding moves the starting point. Standard 5.13 suggests a reprimand when a lawyer knowingly engages in noncriminal conduct involving dishonesty, fraud, deceit, or misrepresentation that adversely reflects on fitness to practice.¹⁶ Standard 5.11(b) suggests disbarment when a lawyer engages in other intentional conduct of that kind that seriously adversely reflects on fitness.¹⁷ The two differ in mental state and in how badly the conduct reflects on fitness, which is why a finding below intentional would have taken the Gatti conduct out of Standard 5.11(b). Both are places to begin, since the court may impose the suggested sanction or modify it after weighing aggravating and mitigating circumstances and its case law.¹⁸ An exam stem that varies only the lawyer's purpose is testing this line, and the question it poses is whether the lawyer aimed at the deception or merely knew the statement was false.

The accused in Gatti stood where the second lawyer stands, because he made his false statements with the intention of deceiving the people he called. The fact that moves the result in the pair is purpose, and everything else about the dishonesty can stay the same.

Gamble shows the first three factors producing a starting point. The panel identified the duty to the public, found the several mental states, and found actual and potential serious injury.¹⁹ It then considered Standard 6.32, under which suspension is generally appropriate when a lawyer communicates with an individual in the legal system knowing the communication is improper and the communication causes injury or potential injury to a party, or causes interference or potential interference with the outcome of the proceeding.²⁰ Aggravating and mitigating circumstances then adjusted that starting point, as the next subsection explains.

Diaz shows a different mental-state finding sitting beside a heavier sanction. The hearing panel found that the lawyer knowingly violated his duty to the public to maintain personal integrity and caused potential serious injury to the public.²¹ The Standards quoted in the opinion include Standard 5.11, which suggests disbarment when a lawyer engages in serious criminal conduct involving intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft, or in other intentional dishonesty that seriously adversely reflects on fitness. They also include Standard 5.22, which suggests suspension when a lawyer in an official or governmental position knowingly fails to follow proper procedures or rules and causes injury or potential injury to a party or to the integrity of the legal process.²² The Kansas Supreme Court concluded that disbarment was the appropriate sanction, with a minority favoring indefinite suspension. The court relied on the number and nature of the violations and criminal convictions, the conclusions of the military courts, the Judge Advocate General's permanent revocation of the lawyer's certification in the naval service, his admitted selfish reasons for the clandestine disclosure, and the standards.²³ The comparison is a reminder that the starting point is only the first move, and that a court weighing convictions and motive can move to a heavier rung than a panel's mental-state label alone would suggest.

Aggravating and Mitigating Factors

The last step of the framework adjusts the suggested sanction for aggravating and mitigating circumstances. The Gamble hearing panel defined aggravating circumstances as considerations that may justify an increase in the degree of discipline, and mitigating circumstances as considerations that may justify a reduction.²⁵ The first three steps describe the act: whom it betrayed, how deliberately, and what it cost or threatened. This step describes the lawyer, and it belongs in the framework because the sanction is chosen to protect the public. The working question is what each fact shows about the likelihood of a repeat and about how well the lawyer understands the wrong. A prior record and a combative attitude point toward repetition, while candor and acceptance of responsibility point toward the conclusion that a lighter measure can protect the public.

Five aggravating factors concern how the misconduct was committed. Willfulness weighs toward a severe sanction, as does the motive of personal gain. Dishonesty with clients and others compounds the wrong, harm to the client often warrants a harsher penalty, and multiple acts of misconduct justify a more critical response.²⁶ Each one connects to risk. A deliberate violation shows a lawyer who chose the result, which a lapse of attention does not. Personal gain supplies a motive that returns whenever the opportunity does. Dishonesty does special damage because clients and courts rely on a lawyer's word and usually cannot check it.

Two further aggravating factors concern the lawyer's own history. Substantial experience in practice is aggravating, because a seasoned lawyer has even less excuse for unfamiliarity with professional responsibilities, and an extensive history of disciplinary infractions merits a more severe sanction.²⁷ The prior record is the most direct evidence on repetition. A lawyer who has been disciplined already knows where the line runs, so a later violation, especially a similar one, suggests that the earlier response did not work. Experience cuts against the lawyer in a way many examinees do not expect, since a long career raises the expectation of compliance and earns no discount.

Mitigating factors run the other way. The lawyer's recognition of the wrongdoing and acceptance of responsibility is an important one, and others are that the offense was not motivated by personal gain and that the lawyer has not previously been disciplined.²⁸ A lawyer who sees the wrong is less likely to repeat it. An offense that did not come from a selfish motive was not driven by an incentive that returns, and a clean record makes an isolated lapse the likelier explanation.

Personal problems, such as mental health or substance abuse difficulties, hold a distinctive place: they do not excuse misconduct, but they may mitigate the sanction.²⁹ Both statements hold once you see what the factor measures. An excuse would erase responsibility for harm already done, and the harm remains whatever caused it. Mitigation looks forward, because a problem that has been identified and is being treated may lower the chance of recurrence. Gamble reflects the same concern from the other direction. When the Kansas Supreme Court suspended the lawyer, it conditioned reinstatement on clear and convincing proof that he understood the gravity of his conduct and had successfully completed anger management and any other treatment or therapy recommended by a health care professional.³⁰

Gamble puts nearly every category on one record. The panel found that the lawyer had been disciplined on two earlier occasions, that this was his third matter and each had involved a failure to respect appropriate boundaries, that the biological mother and the adoptive parents were vulnerable to his misconduct, and that he failed to recognize the injury he caused.³¹ A previous panel had informally admonished him for a violation of KRPC 8.4(d) and had suggested that any future matter go to the Kansas Supreme Court because his chances had been used up.³² His failure to name any harm beyond his own time bears on acceptance of responsibility, because a lawyer who cannot identify the injury has not fully understood the wrong.

The panel credited some mitigating facts on the other side. It noted that he had self-reported the misconduct, admitted the facts, and admitted the two rule violations. He said he was remorseful for being at the disciplinary hearing and regretted sending the message, and the panel called his remorse a minor mitigating factor.³³ The panel's account of the hearing shows why the self-report did not carry more weight. It found his demeanor and attitude toward the disciplinary process during the hearing uncooperative.³⁴ He also complained that more than 15 months had passed between his self-report and the hearing, but his own dates, June 28, 2013 to May 13, 2014, showed less than 11 months, perhaps the shortest interval the panel could remember.³⁵ A self-report earns credit as evidence of acceptance of responsibility, but acceptance is judged on the whole record.

The outcome shows weighing and no tallying. The panel said that, despite the lawyer's abysmal attitude, it might have recommended a censure published in the Kansas Reports had there been no prior discipline. The misconduct came just a few short months after a previous panel strongly admonished him, however, and all three cases were linked by his overreaching approach and failure to recognize reasonable boundaries, so the panel recommended a 60-day suspension.³⁶ The prior discipline therefore decided the rung. The Supreme Court then found 60 days inadequate. It agreed with the Disciplinary Administrator that the egregious nature of the conduct warranted a longer suspension, and it adopted the panel's description of what the lawyer did. He attempted to manipulate the biological mother and thereby interfered with justice; his conduct amounted to emotional blackmail of an unrepresented 18-year-old in an already emotionally exhausting process; his message was designed to embarrass, burden, and create guilt; and these bullying tactics reflected directly on his fitness to practice. The court imposed six months.³⁷ The self-report was real and was credited, yet it said nothing about the victim's vulnerability or about warnings that had already failed, which are the facts that measure the harm and predict repetition.

Diaz shows the same weighing when the aggravation lies in method and motive. The hearing panel found that the furtive nature of the lawyer's actions aggravated the malfeasance: he printed the list containing classified information from the secret computer, cut it into pieces, and placed the pieces in a Valentine's Day card so that the package would look innocuous. He then mailed the card the day before he left the island, to reduce his chance of facing consequences.³⁸ Concealment of that kind is strong evidence of willfulness, because a lawyer who hides an act has shown that he understood where the line was. Among its reasons for disbarment, the Supreme Court counted his admitted selfish reasons for the clandestine disclosure, which is the personal-gain factor operating on a record the lawyer himself supplied.³⁹

An exam stem will often list several facts for each side, and the instinct that loses points is to count them. A better method asks what each fact shows about the chance of repetition and about the lawyer's grasp of the wrong, so that a single serious aggravator, such as a related prior admonition, can outweigh several minor mitigators. A mitigator also earns credit only as far as the whole record supports it, so a self-report does not cancel a hostile posture at the hearing.