Attorney disciplinary matters are highly “fact-sensitive.” See, e.g., In re Kinnear, 105 N.J. 391, 395 (1987); In re Litwin, 104 N.J. 362, 366 (1986). While the importance of “the facts” is not news to any general litigator, the significance—sometimes of even the smallest fact—is often under-appreciated when representing a lawyer facing ethics charges. Importantly, the factual nuances impact not only the determination of whether an RPC has been violated, but also the quantum of discipline imposed.

Perhaps, unawareness of this fact sensitivity is borne of a misimpression within the Bar that there is no room for flexibility in the Rules of Professional Conduct themselves or in the public bodies charged with their enforcement. Other than the truism that arranging discipline by consent is not akin to the factual creativity often seen in criminal plea bargaining, it may be precisely the absence of “plea bargaining” in disciplinary cases that requires such careful explanation and presentation of the facts as they are. That is because the smallest fact may help contextualize a lawyer’s behavior, defeating a charge or mitigating the discipline.