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In re Disciplinary Matter Involving Hanlon4/15/2005
hus, the only issue in this case is step three, the selection of an appropriate sanction in light of Hanlon's conduct and the mitigating and aggravating factors.
B. The Mitigating Factors in Hanlon's Favor Do Not Outweigh the Aggravating Factors Supporting a Relatively Severe Penalty
We have noted in the past that "there is no 'magic formula' for determining how aggravating and mitigating circumstances affect an otherwise appropriate sanction."
Rather, " ach case presents different circumstances which must be weighed against the nature and gravity of the lawyer's misconduct." Hanlon and the bar stipulated that the mitigating circumstances of this case (the remoteness of Hanlon's one prior ethical violation, his cooperation with bar counsel, the long delay between his misdeeds and the bar inquiry, his good character and reputation, and his remorse) outweigh the aggravating circumstances (Hanlon's prior violation, his selfish motive in misleading Rednall and the bar, and his pattern of misconduct and multiple offenses). Despite this stipulation, the parties sharply disagree as to the appropriate period of suspension.
Hanlon argues on appeal that the committee's discipline was too severe in light of mitigating factors such as his admission of misconduct to the bar, good character and reputation, and remorse; the harm to his career, family, and personal life that a three-year suspension is likely to cause; and relevant case law from other jurisdictions. We disagree.
1. Hanlon's "Cooperation" With the Bar is not a Mitigating Factor
American Bar Association Standard 9.32(e) allows mitigation where an attorney offers a "full and free disclosure" of wrongdoing, or exhibits a "cooperative attitude" toward the disciplinary proceedings. Hanlon's stipulation and appellate briefing suggest that despite his "initial misleading statements to the Bar," his later cooperation in the bar's disciplinary process ought to mitigate his punishment.
"While cooperation and disclosure are to be strongly encouraged, not every act of that sort deserves full mitigative effect." A lawyer's admission of wrongdoing, when made only in response to an inquiry into that same wrongdoing, should not be considered a mitigating factor. We have stated that where an attorney "turned himself in only afterhis misconduct was discovered by his law partner," his "claim of 'voluntary disclosure' carries little weight." If disclosure prompted by a partner's discovery of wrongdoing is not mitigative, then disclosure prompted by a bar investigation is even less so.
In In re Whitt the defendant supplied false information and fabricated documents to bar investigators. The Washington Supreme Court held that " he aggravating factor of providing falsified information during a disciplinary proceeding will not be mitigated because a wrongdoer makes an admission after being accused of deception," and that attorneys "should not be rewarded for 'coming clean' after lying in the disciplinary proceedings." The court explained that " holding to the contrary would encourage unscrupulous attorneys to defraud the disciplinary process and, if caught, only then admit their wrongdoings." This reasoning accords with our own in Buckalew and Mann, and we find it persuasive in this case. Hanlon admitted wrongdoing only after it became clear that the bar was going to discover his earlier deceitful non-cooperation.
Indeed, contrary to his assertions on appeal, Hanlon's non-cooperation with the bar was hardly only "initial," and his eventual disclosures were not "fully and freely" given. Hanlon first sent the bar the July 12, 1996 letter which deceptively referred to a "set
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