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Discipline: Apples to Oranges? One of the most challenging
and occasionally distressing aspects of regulating lawyer conduct
is sitting across the table from a respondent attorney and informing
her that she assuredly is going to be disciplined, or at least that
the Director’s Office will be seeking to impose discipline. Some such attorneys are belligerent, upset at
our office or at a client who dared to complain about them, or refuse
to acknowledge their misconduct. Others
are there voluntarily, having self-reported their conduct, timidly
awaiting their fate. Either
way (or more likely something in between), the words disbarment, suspension,
probation, reprimand or even admonition can seem like a career-threatening
dagger to an attorney. Disciplinary violations must either be admitted or proven
by clear and convincing evidence.
In a surprisingly large number of cases, however, the principal
discussion with a respondent attorney or her counsel focuses more
on what discipline is warranted than on any dispute as to the factual
basis for charges. An attorney facing discipline wants to know
up front what sanction she is facing.
Trying to impose consistent discipline for often very
disparate acts of misconduct is not an easy process.
Respondent attorneys, the Director’s Office, Lawyers Board
panels, the Supreme Court and the public all desire consistency in
lawyer disciplinary decisions. Can
similar sanctions for dissimilar conduct or dissimilar sanctions for
what appears to be the same misconduct be reconciled and explained?
Is it like the idiom “comparing apples to oranges,” which many
scholars hold to be impossible, or is it more like comparing related,
albeit slightly different, items … say, two varieties of apples? There are two discipline spectrums to consider: one for similar misconduct of varying degrees
of seriousness; the other for similar levels of discipline arising
out of wholly different rule violations.
The first group may be viewed as comparing varieties of apples
to apples, while the latter spectrum more closely resembles the difficult
apples-to-oranges comparison. Is
there a framework that can be applied to future cases in an effort
to better promote consistent comparisons within these spectrums? Apples to Apples There are not, and probably never will be, any inflexible
“sentencing” guidelines in the area of lawyer discipline. The human element in such cases is simply too
variable. Nevertheless, it
seems at least that discipline for related acts of misconduct ought
to be reasonably predictable. Intuitively,
for example, we expect that an attorney who seriously neglects a client’s
matter will be disciplined more than an attorney whose neglect is
relatively minor and results in little or no harm.
Likewise, an attorney who neglects multiple client matters
should receive more severe discipline than an attorney who neglects
only one file. Such a logical approach mirrors the American Bar Association’s
Standards for Imposing Lawyer Sanctions
(1992), which sets out guidelines for when disbarment, suspension,
reprimand and admonition are appropriate within 12 categories of misconduct. The Standards
offers a straightforward framework for imposing the most appropriate
discipline and thus for comparing the discipline imposed in different
cases: after misconduct is established, first determine what level
of discipline is appropriate for that conduct and then (and only then)
apply any aggravating and mitigating circumstances to raise or lower
the level of discipline. Although our Supreme Court has never adopted
the ABA standards, it has cited to them with approval on many occasions
and essentially analyzes lawyer discipline cases similarly. One difficulty in comparing the discipline imposed, even
under the Standards, is
that nuances of misconduct that warrant imposition of greater or lesser
discipline cannot always be clearly delineated.
The ABA standards lump all suspensions, all reprimands or all
admonitions for related conduct into one group each, but suspensions
in fact are imposed for 30, 60 or 90 days, four or six months, a year,
two years, etc. Within the category of suspension therefore,
more egregious conduct can result in increasingly longer periods of
suspension. But what of conduct that falls into the public reprimand
category, or warrants only a private admonition? Misconduct in these categories can cover a similar
range of seriousness, but cannot be nuanced as with suspensions. Conduct that just barely crosses the line into
public discipline may receive a reprimand, as will more serious conduct
that falls just barely below the line for suspension. Justifying a reprimand to an attorney who can
find a prior decision in which this same sanction was imposed for
what may appear to be more serious misconduct of the same type can
prove exceedingly difficult. Another factor that affects the consistent application
of disciplinary standards is time.
The Supreme Court has on occasion increased the discipline
for similar misconduct if it perceives that prior decisions and levels
of discipline have not had the desired deterrent effect.
For example, this was done in a line of cases in the 1980s
dealing with the issue of candor to the court, incrementally increasing
the length of suspensions from 30 days to 90 days to six-months, when
the Court perceived that the prior discipline was not creating the
desired deterrent effect. Despite these limitations, a framework such as provided
by the ABA Standards allows
for comparing discipline for like or related misconduct.
Attorneys charged with committing most types of serious misconduct
can research the Standards,
along with prior Minnesota Supreme Court decisions, and ascertain
with reasonable accuracy what awaits them. Apples
to Oranges What if, however, the misconduct for which an attorney
faces discipline is less common, such that it has resulted in few,
if any, prior public decisions in Minnesota?
It is far more difficult to compare sanctions across spectrums
of misconduct. Should a suspension for failure to maintain
trust account records that resulted in the negligent misappropriation
of client funds be the same as a suspension for an improper business
transaction with a client by an attorney with prior private discipline? Can we prospectively determine into what discipline
level less common misconduct should be slotted? Obviously, the answer is not simple to articulate. The Director’s Office and the Court may look
to other jurisdictions to determine whether like cases have been decided,
keeping in mind that other states may be harsher or more lenient than
Minnesota in their disciplinary approach.
Authoritative texts such as the Restatement
Third: The Law Governing Lawyers (1988)
may be consulted. The legal
literature may be surveyed. Recalling
the broad range of conduct that may result in a reprimand or admonition,
this “apples to oranges” comparison may indeed seem impossible.
Ultimately, some subjective comparisons must be made by the
Court or disciplinary counsel. One bright line factor that should be expected is whether
the conduct involves dishonesty. If
there is an element of fraud, misrepresentation, or dishonesty involved
in a particular type of misconduct, or if it violates criminal statutes,
then disbarment or suspension is far more likely to be sought.
Unless there is substantial harm involved, however, deficiencies
of lawyer performance in areas such as competence or diligence, though
not unimportant by any means, usually must be found to recur over
multiple matters before a lawyer will lose his or her license.
Final
Touches Once the appropriate level of discipline is determined,
the Court considers aggravating and mitigating circumstances, and
so must the Director’s Office in making recommendations.
The most common aggravating factor in lawyer discipline cases
is an attorney’s prior discipline history, especially if for conduct
that is similar or recent. Noncooperation
with the disciplinary process is also an important aggravating factor,
and if sufficiently egregious may be an independent basis for discipline. A host of factors have been considered in mitigation by
the Court, including chemical dependency or psychological disorders
that caused the particular misconduct and have been subject to successful
treatment. Other factors considered in mitigation include
remorse, restitution where appropriate, exceptional personal difficulties,
otherwise good character, and civic or pro bono activities. Just as noncooperation
can be considered aggravating, cooperation with the disciplinary investigation
occasionally has been considered in mitigation.
Since cooperation is required under both the Rules of Professional
Conduct and the Rules on Lawyers Professional Responsibility, however,
the Director’s Office generally argues that this factor is of little
weight, unless it is exceptional, such as when an attorney self-reports
his misconduct when it otherwise likely would not have come to light. The application of these more “human” factors in aggravation
and mitigation ultimately is what makes comparing the outcomes of
lawyer discipline cases seem like comparing apples to oranges.
Finding a prior decision for similar misconduct containing
similar aggravating and mitigating factors is rare.
There is always some less-than-perfect comparison and
contrast required before reaching a disposition in lawyer discipline
cases. Without some identifiable framework in which
to analyze matters, however, this task would be almost impossible. The Director’s Office will use the basic framework
described above to seek consistency in its recommendations. MARTIN COLE is director of the Office of Lawyers Professional Responsibility. An alumnus of the University of Minnesota and of the University of Minnesota Law School, he has served the lawyer disciplinary system for 21 years. |
