In re Disciplinary Action Against McCormick, 819 N.W.2d 442

Director of the Office of Lawyers Professional Responsibility filed a petition on May 2, 2011 alleging McCormick, while defending a homicide defendant, instructed an investigator to interview a potential witness without obtaining the witness's attorney's permission, violating Minn. R. Prof. Conduct 4.2 and 8.4(d).
Referee found McCormick represented R.S.; co-defendant M.S. had pleaded guilty and was represented; investigator interviewed M.S. about how he would testify at R.S.'s trial without consent from M.S.'s counsel.
Referee concluded violations of Rules 4.2 and 8.4(d); aggravating factors: prior disciplinary history, misconduct while on probation, and defense attorney experience; no mitigating factors; recommended 60-day suspension.
Director asserted the standard of proof is clear and convincing and the referee’s factual findings are reviewed with deference; legal conclusions reviewed de novo.
Court imposed a 60-day suspension, with conditions for reinstatement, notice requirements, costs, and ongoing bar-examination-related duties.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did McCormick violate Rule 4.2 by directing an interview with a represented witness?	Director: yes, the interview concerned the matter and the witness was represented; consent not obtained.	McCormick: no violation because the subject of representation was not discussed and the witness was not in a typical client role.	Yes; violations of Rules 4.2 and 8.4(d) established.
Whether the Miller defense of being 'authorized by law' applies to this disciplinary context.	Miller does not justify McCormick's actions as authorized by law in a defense context.	McCormick relied on Miller to claim authorization to investigate while a witness was represented.	Not applicable to defeat findings; authorization by law does not excuse egregious conduct.
Was the referee’s factual and legal analysis entitled to deference and what standard governs review of discipline?	Referee findings have evidentiary support and are reviewed de novo only for legal conclusions.	Court should scrutinize the referee's conclusions; ruling should reflect the law and evidence.	We defer to the referee's facts with de novo review of legal conclusions.
What discipline is appropriate given the misconduct and aggravating factors?	60-day suspension is warranted due to prior history and probation context.	Discipline should be more lenient or substantially similar to prior sanctions if not mirroring current misconduct.	60-day suspension is appropriate.

In re Westby, 639 N.W.2d 358 (Minn. 2002) (clear and convincing standard; reviewing discipline)
In re Winter, 770 N.W.2d 463 (Minn. 2009) (deferential review of referee findings)
In re Moulton, 721 N.W.2d 900 (Minn. 2006) (evidentiary support required for findings)
In re Montez, 812 N.W.2d 58 (Minn. 2012) (de novo review of legal conclusions)
In re Aitken, 787 N.W.2d 152 (Minn. 2010) (standard for review of disciplinary decisions)
In re Holker, 730 N.W.2d 768 (Minn. 2007) (weight of referee recommendation on discipline)
State v. Miller, 600 N.W.2d 457 (Minn. 1999) (authorized-by-law exception; rule 4.2 context)
In re Rebeau, 787 N.W.2d 168 (Minn. 2010) (aggravating factor analysis for discipline)
In re McConnick, 710 N.W.2d 563 (Minn. 2006) (disciplinary history and sanction implications)