15.09 Aggravation and Mitigation

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A. Generally

After misconduct has been established, aggravating and mitigating circumstances may be considered in deciding what sanction to impose.

B. Aggravation

1. Definition. Aggravation or aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed.

2. Factors which may be considered in aggravation.
Aggravating factors include:

  • (a) prior disciplinary record, including private reprimands;
  • (b) dishonest or selfish motive;
  • (c) a pattern of misconduct;
  • (d) multiple violations;
  • (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary authority or uncooperative conduct during proceedings;
  • (f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process;
  • (g) refusal to acknowledge wrongful nature of conduct;
  • (h) vulnerability of victim;
  • (i) substantial experience in the practice of law;
  • (j) indifference to making restitution;
  • (k) illegal conduct, including that involving the use of controlled substances;
  • (l) unsuccessful participation in the Grievance Referral Program.

C. Mitigation

1. Definition. Mitigation or mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed.

2. Factors which may be considered in mitigation.
Mitigating factors include:

  • (a) absence of a prior disciplinary record;
  • (b) absence of a dishonest or selfish motive;
  • (c) personal or emotional problems;
  • (d) timely good faith effort to make restitution or to rectify consequences of misconduct;
  • (e) full and free disclosure to disciplinary authority or cooperative conduct during proceedings;
  • (f) inexperience in the practice of law;
  • (g) character or reputation;
  • (h) physical disability suffered by the Respondent at the time of the misconduct that caused or contributed to the misconduct;
  • (i) mental disability or chemical dependency including alcoholism or drug abuse when:
    • (1) there is medical evidence that the Respondent is affected by a
    • chemical dependency or mental disability;
    • (2) the chemical dependency or mental disability caused the
    • misconduct;
    • (3) the Respondent’s recovery from the chemical dependency or
    • mental disability is demonstrated by a meaningful and sustained
    • period of successful rehabilitation; and
    • (4) the recovery arrested the misconduct and recurrence of that
    • misconduct is unlikely;
  • (j) delay in disciplinary proceedings;
  • (k) imposition of other penalties or sanctions;
  • (l) remorse;
  • (m) remoteness of prior sanctions.

D. Factors which are neither aggravating nor mitigating.

The following factors should not be considered as either aggravating or mitigating:

(a) forced or compelled restitution;
(b) agreeing to the client’s demand for certain improper behavior or result;
(c) withdrawal of complaint against the Respondent;
(d) complainant’s recommendation as to sanctions;
(e) failure of injured client to complain

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