Lawyer disciplinary hearings often involve a consideration of germane aggravating and mitigating factors after a disciplinary hearing panel has determined the lawyer has engaged in professional misconduct.¹ The American Bar Association (ABA) Standards for Imposing Lawyer Discipline consider the presence of aggravating and mitigating factors to be one of the four major questions to consider when disciplinary boards impose punishment for lawyer misconduct.² The factor succinctly reads: “Are there any aggravating or mitigating factors?”³

Aggravating factors “are any considerations or factors that may justify an increase in the degree of discipline to be imposed.”⁴ Conversely, mitigating factors “are any considerations or factors that may justify a reduction in the degree of discipline to be imposed.”⁵

A significant number of aggravating factors can increase a lawyer’s punishment, while a significant number of mitigating factors can lead to a lighter punishment. A key aggravating factor is that the attorney failed to acknowledge the wrongful nature of her misconduct.⁶ And “courts often equate a lawyer’s lack of remorse with failing to acknowledge the wrongful nature of the misconduct.”⁷ Conversely, a relevant mitigating factor is the lawyer expressed and showed remorse.⁸

In many cases, the lawyer facing professional discipline must express remorse and accept responsibility for the wrongful conduct. If the lawyer fails to show remorse, then a hearing panel may determine that the lawyer fails to appreciate the wrongfulness of her conduct and consider that as an aggravating factor.

The Tennessee Supreme Court often considers remorse or lack of remorse in lawyer disciplinary cases. The state high court explains: “Remorse and awareness of prior wrongdoing are also regularly cited as marks of good moral character, and various jurisdictions have recognized these as appropriate factors to consider in gauging moral character.”⁹

The remorse must be sincere and not reflect an attempt by the lawyer to minimize the offending conduct. For example, the Tennessee Supreme Court has explained that “[r]emorse in this context means more than mere regret at having engaged in conduct that resulted in disastrous consequences to the offending attorney. It must include taking responsibility by appreciating and acknowledging the seriousness of the attorney’s misconduct.”¹⁰

Furthermore, the timing of the remorse and apology can be a germane factor.¹¹ A bankruptcy court found that a lawyer’s “last minute remorse to be suspect” when the lawyer made his apology only after a U.S. trustee and case trustee were forced to intervene and the apology was made only at the sanctions hearing.¹²

The hearing panel is the key entity that will ultimately determine whether a lawyer truly was remorseful. And if the remorse is not considered genuine or if the lawyer’s conduct seemingly conflicts with the lawyer’s verbal remorse, then a hearing panel or a court may well not find remorse to be a mitigating factor.¹³

For example, in a case involving a Tennessee lawyer disciplined for having sexual relations with a client, there were several witnesses who testified that the lawyer was remorseful. However, the hearing panel ultimately did not consider remorse a relevant mitigating factor. The Tennessee Supreme Court declined to disagree, saying that whether or not the lawyer was remorseful¹⁴ was a credibility determination and the hearing panel was uniquely situated to make those credibility assessments.¹⁵

In a recent decision, the Tennessee Supreme Court determined that a lawyer failed to show remorse and instead failed to acknowledge his wrongful conduct by considering himself as the real victim in the disciplinary process and saying that offensive and intemperate e-mails he sent to opposing counsel were just a “gross misunderstanding.”¹⁶ In another decision, the Tennessee Supreme Court affirmed a finding of the hearing panel that an attorney disciplined for repeated disrespectful conduct toward a judge showed a lack of remorse.¹⁷ The state high court found it “especially troubling” that the attorney showed a lack of remorse in front of the hearing panel._¹⁸

What if Lawyer Truly Considers Charges Wrong — First Amendment Considerations

Obviously, in many lawyer discipline cases, a lawyer needs to show remorse or regret for his misconduct. This can be a relevant mitigating factor. But, what if the lawyer truly believes that the underlying charges are false or overblown and that he or she is truly the victim? How far can the accused lawyer and his counsel press the issue without incurring an aggravating factor of failure to appreciate the wrongfulness of one’s conduct or show a lack of remorse?

Consider the plight of former Minnesota attorney Randy Tigue, a prominent First Amendment attorney.¹⁹ Suspended for negligent mismanagement of client trust accounts involving very small amounts of money, Tigue faced suspension. He asserted that he was treated unfairly during the disciplinary process. During his failed attempt at reinstatement, Tigue argued that he was denied reinstatement in part based on his speech and beliefs that he was treated unfairly previously.

The Minnesota Supreme Court denied his First Amendment claim, writing that “the panel did not oppose Tigue’s reinstatement — and we do not deny his petition — solely because of his words and thoughts.”²⁰ The court concluded: “In sum, assuming without deciding that it may violate the First Amendment to deny an attorney’s petition for reinstatement based on their beliefs about their misconduct, the facts of this case do not establish a First Amendment violation.”²¹

Two justices dissented in the Tigue case, pointing out that a lawyer has a free-speech right to have a different idea or viewpoint about the law. “More critically, requiring a lawyer to agree with our interpretation of the law (and so be constrained from expressing disagreement in his advocacy) presents serious concerns under the First Amendment to the U.S. Constitution and Article I, Section 3, of the Minnesota Constitution.”²²

Conclusion

Remorse or lack of remorse is a key factor in lawyer disciplinary hearings. Counsel for lawyers facing discipline need to have a heart-to-heart conversation with their clients about whether the lawyer needs to issue an apology and candidly show regret and remorse for the conduct that negatively impacted a client.

However, other times, lawyers must consider whether the underlying charges are accurate, overblown or subject to different interpretations. In those cases, the lawyer and client may consider fighting the charges with zealous advocacy within ethical bounds.

After all, zealous advocacy is not a cloak for unethical behavior. |||

DAVID L. HUDSON JR. is an associate professor of law at Belmont University. He writes regularly on ethics issues for the ABA Journal.
BILL SPANIARD is a Nashville-based attorney and a Rule 31 Listed Mediator (General Civil and Family Law).

NOTES
1. David L. Hudson Jr., Professional Responsibility (Cognella, 2016), p. 7.
2. ABA Standards for Imposing Lawyer Discipline, §3.0(d).
3. Id.
4. ABA Standards for Imposing Lawyer Discipline, §9.21.
5. ABA Standards for Imposing Lawyer Discipline, §9.31.
6. ABA Standards for Imposing Lawyer Discipline, §9.22(g)
7. ABA Annotated Standards for Imposing Lawyer Sanctions at p. 436 (2d ed. 2019).
8. ABA Standards for Imposing Lawyer Discipline, §9.32(l).
9. Milligan v. Board of Prof. Resp., 301 S.W.3d 619, 631 (Tenn. 2009).
10. In Re Sitton, 618 S.W.3d 288, 303 (Tenn. 2021).
11. ABA Annotated Standards for Imposing Lawyer Sanctions at 493 (2d ed. 2019).
12. Id, citing In Re Clark, No. 06-62407-aer13, 2009 WL 936666, at *7 n. 19 (Bankr. D. Or. March 26, 1999).
13. ABA Annotated Standards for Imposing Lawyer Discipline at 493 (2d ed. 2019).
14. In Re Vogel, 482 S.W.3d 520, 537 (Tenn. 2016).
15. Id. at 538.
16. In Re Manookian, 685 S.W.3d 685, 703 (Tenn. 2024).
17. Bailey v. Board of Professional Responsibility, 441 S.W.3d 223, 236 (Tenn. 2014).
18. Id.
19. Randy Furst, “Minnesota Supreme Court Rejects Reinstatement for Controversial Attorney Randall Tigue,” The Minnesota Star Tribune, June 17, 2021.
20. In re Petition for Reinstatement of Tigue, 960 N.W.2d 694, 710 (Minn. 2021).
21. Tigue, 960 N.W.2d at 710.
22. Tigue, 960 N.W.2d at 714 (J. Thissen, dissenting) Article I, Section 3, of the Minnesota Constitution.
23. Florida Bar v. Buckle, 771 So.2d 1131, 1133 (Fla. 2000).