Mitigating Factor for Attorney Discipline: Does Practice Time Matter?

Jul 3, 2018 | Blog

Maybe you’ve practiced law for 30 years and you’re facing a bar complaint. Maybe you’ve practiced law for a couple of years and you’re facing a bar complaint. Is practice time a mitigating factor for attorney discipline?

Investigators Do Consider Mitigating Factors

When you’re being investigated because of a bar complaint, the investigator does consider mitigating factors. However, not every state considers length of practice time as a mitigating factor. In fact, a lawyer with extensive practice time may be looked at more harshly during the process because of their experience. They likely should have known better. Nevada Supreme Court Rule 102.5 reads, in part, “substantial experience in the practice of law” is treated like an aggravating factor.

The Level of Harm Is Important in Some Jurisdictions

In states that do at least partially support the idea that practice time is a mitigating factor, the investigation will look at the level of harm that is alleged. If there’s no major harm and the lawyer is new to the profession, they may be given a break. In Nevada, Supreme Court Rule 102.5 reads, in part, “inexperience in the practice of law” is a mitigating factor if the level of harm isn’t a serious threat to the public.

Is It Fair to Lawyers?

One common concern is the fact that there’s no clear answer to whether practice time should be a mitigating factor. The investigation process is meant to protect clients and the public at large from substantial harm. Good faith, honesty, and a previous history (or lack of history) of disciplinary action by the bar are also mitigating factors. What is clear is that lawyers are entitled to a fair proceeding and due process.

To know for sure whether your jurisdiction considers practice time as a mitigating factor, you have a few options:

  1. You can research the rules yourself.
  2. You can talk with an investigator at the bar. They may be able to tell you where to look in the rules as well as give you a yes or no answer. However, they cannot and will not give you legal advice.
  3. You can talk with an ethics defense lawyer who is licensed to practice in your area.

If you’ve received a letter from the bar that informs you that you’re under investigation, read our short guide on the 8 must-take steps.

If you receive an ethics complaint from the California Bar and you’re not sure where you should start, check out The State Bar Playbook. This is Megan’s interactive and easy to use guide that will help guide you through the process from receipt of the complaint all the way through the appeals process!