Ralph Adams 0000-00-00 00:00:00
Adams & Clark, PC | www.adamsclark.com If the Evidence of Violation is Clear, Saying You’re Sorry Isn’t Enough This is one piece of advice that I give my attorney discipline clients: In the universe of attorney discipline, there are what I call capital "T" truths and lower case "t" truths. Lower case t truths are subject to change like: the world was flat, now the world is a sphere, under quantum mechanics theory maybe we will find out that the world is just a reflection of a speck on the edge of the universe, who knows, it is subject to change. Capital T truths, on the other hand, never change. One of the capital T truths in the universe of attorney discipline is that remorse is the most important mitigating factor. The reason is fairly obvious: It is the one factor that demonstrates to the authorities that the responding attorney recognizes the error, and, more importantly, that the error will not likely recur. Remorse is, however, difficult to demonstrate. Merely saying you're sorry is not enough. In a discipline case from several years ago, the Arizona Supreme Court stated that "[t]hose seeking mitigation relief based upon remorse must present a showing of more than having said they are sorry.... |T]he best evidence of genuine remorse is affirmative and, if necessary, creative efforts to make the injured client whole." Matter of Augenstein, 178 Ariz. 133, 871 R2d 254 (Ariz. 1994). This axiom has been repeated through time and as recently as In re Abrams, 227 Ariz. 248, 257 R3d 167 (Ariz. 2011) where the court found the evidence of remorse insufficient. That is not to say that you should forgo any valid defenses. Vigorous pursuit of defenses should not be weighed against a responding attorney. In re Curtis, 184 Ariz. 256, 908 R2d 472 (1995). The State Bar must prove violations by clear and convincing evidence. Moreover, every ethical rule is comprised of elements, each of which must be established by the evidence. Nevertheless, if the evidence is clear and convincing, fix what you can, as best you can. You might consider calling someone with experience in attorney discipline matters to help you be, as the Court said, "creative" in your efforts to make the injured client whole.
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