864 N.W.2d 342
Minn.2015Background
- Duane A. Kennedy, a Minnesota lawyer on disciplinary probation (public reprimand 2013), represented B.W. (civil claimant/victim) while also handling criminal-defense matters as a solo practitioner.
- In July 2013 Kennedy sent three letters to the criminal defendant’s counsel demanding $300,000 to settle B.W.’s civil claim and linking a settlement to possible dismissal/expungement of the criminal charge.
- The third letter stated that if a settlement were reached, B.W. "may decide to ask the prosecutor to dismiss" and "may decide to not testify," implying a witness might be less adverse if paid.
- The defense forwarded the letters to the prosecutor, who testified they had a chilling effect and contributed to a plea to a lesser charge with dismissal of the criminal sexual-conduct count.
- A referee found Kennedy violated Minn. R. Prof. Conduct 8.4(a) and 8.4(d), citing intent to prejudice the criminal prosecution; recommended a 90-day suspension and reinstatement petition requirement.
- The Supreme Court upheld the referee’s findings as not clearly erroneous, concluded rules 8.4(a) and 8.4(d) were violated, but reduced discipline to a 30-day suspension (with conditions) and allowed reinstatement by affidavit (not petition).
Issues
| Issue | Plaintiff's Argument (Director) | Defendant's Argument (Kennedy) | Held |
|---|---|---|---|
| Whether Kennedy’s letters violated Minn. R. Prof. Conduct 8.4(d) (conduct prejudicial to administration of justice) | Letters offered to barter witness testimony / influence testimony in exchange for settlement — prejudicial to administration of justice | Letters merely sought lawful civil settlement and merely said the victim might ask prosecutor to dismiss or give a more favorable recommendation; no promise to defy subpoenas or commit perjury | Court: Upheld referee — letters amounted to an offer that B.W. would be more favorable or potentially not testify in exchange for payment; violated 8.4(d) (no intent element required for 8.4(d)) |
| Whether Kennedy violated Minn. R. Prof. Conduct 8.4(a) (violate/attempt to violate Rules or assist/induce another) | By offering to barter witness testimony (or to induce noncooperation), Kennedy aided a violation of professional rules | Kennedy’s conduct was lawful negotiation and counseling of client choices; no clear evidence of advising to defy court orders or commit perjury | Court: Affirmed violation of 8.4(a) as derivative of 8.4(d) findings |
| Whether referee’s factual findings (intent, meaning of letters) were clearly erroneous | Factual record and referee credibility findings support that letters intended to prejudice the criminal prosecution | Referee erred; letters used permissive language ("may") and did not promise noncompliance with subpoenas or perjury; evidence not clear and convincing | Court: Deferential review to referee’s credibility determinations; findings not clearly erroneous and supported by documentary letters plus testimony |
| Appropriate discipline (90-day suspension recommended) | Director urged adoption of referee’s 90-day suspension | Kennedy argued recommended sanction excessive given isolated incident and defense of settlement negotiation | Court: Suspension warranted but reduced to 30 days; no reinstatement petition required; additional probationary conditions imposed |
Key Cases Cited
- In re Knutson, 711 N.W.2d 807 (Minn. 2006) (advising client to make false statements is serious misconduct)
- In re Backstrom, 767 N.W.2d 453 (Minn. 2009) (public reprimand where official attempted to influence witness testimony and impede testimony for criminal defense)
- In re Grigsby, 815 N.W.2d 836 (Minn. 2012) (discussing Rule 8.4(d) and that intent is not an element)
- In re Voss, 830 N.W.2d 867 (Minn. 2013) (deference to referee credibility determinations in disciplinary proceedings)
- In re Waite, 782 N.W.2d 820 (Minn. 2010) (referee may reject attorney testimony; misconduct review standards)