[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

adversely on their ability to practice law, and Model Rule 8.4(c), which prohibits
dishonesty, fraud, deceit, and misrepresentation, also provide grounds for professional
discipline. Violations of either of these provisions nearly always raise a “substantial question
about the lawyer’s honesty, trustworthiness or fitness as a lawyer” 8 and apply to lawyer
conduct both inside and outside law practice. 9
Model Rule 8.4(d), which prohibits conduct prejudicial to the administration of
justice, also has been applied in a wide variety of contexts, for example to prosecutors who
seriously misuse their discretion. This rule has provided the basis for discipline for
misconduct during litigation, such as abusive behavior or making court appearances while
intoxicated.
Model Rule 8.4(e) proscribes conduct that suggests a lawyer can obtain results by
improperly influencing a governmental agency or official. The rule also has been applied to
judges who misuse their positions. Model Rule 8.4(f) further prohibits lawyers from
assisting judges in violating the rules of judicial conduct, for example by making loans to
judges before whom they appear. 10
Most recently, Model Rule 8.4(g) prohibits discriminatory conduct in the practice of
law. Some jurisdictions have added additional grounds for discipline, such as California,
and Florida provisions that make nonpayment of child support obligations grounds for
license suspension. 11
Disciplinary Sanctions
Once disciplinary counsel has met the burden of proof, disciplinary sanctions are imposed.
An increased range of sanctions and sanction uniformity has been encouraged by the ABA
Standards for Imposing Lawyer Sanctions, which recognize a wide spectrum of sanctions,
including disbarment, suspension, reprimand, admonition, probation, restitution,
assessment of costs, limitation upon practice, appointment of a receiver, requiring that a
lawyer take continuing legal education or retake all or part of a bar examination, and any
other requirement deemed “consistent with the purposes of lawyer sanctions.” 12
Courts recognize aggravating factors, such as past discipline, dishonest or selfish motive,
a pattern of misconduct or multiple offenses, obstruction of a disciplinary proceeding,
refusal to acknowledge responsibility, a vulnerable victim, substantial experience in law
practice, and illegal conduct. Mitigating factors encompass personal and emotional
problems, physical or mental disability, the absence of prior disciplinary violations or selfish
motive, timely efforts to rectify harm, a cooperative attitude toward the disciplinary board,
delay in the disciplinary proceedings, inexperience in law practice, good character and
reputation, other penalties or sanctions imposed for the same conduct, remorse, and
remoteness of prior offenses. Advice of counsel is not a defense, but may be evidence of
mitigation if the lawyer disclosed all relevant facts and followed the advice. 13
One disability that plagues lawyers — substance abuse — has been the cause of a large
number of disciplinary complaints. Most courts regard successful treatment for substance
abuse as a mitigating factor, and regard failure to seek treatment as an aggravating
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