871 N.W.2d 753
Minn.2015Background
- Marc G. Kurzman, a Minnesota attorney with a lengthy disciplinary history, was the subject of a Director petition alleging multiple professional misconduct violations arising from incidents between 2009–2013.
- At a 2012 deposition of court-appointed parenting consultant M.S., Kurzman asked a question implying M.S. had been accused of sexual misconduct with minors, without any good-faith factual basis.
- Kurzman delayed returning client files: J.D. did not receive all files until mid‑May 2013 after Kurzman withdrew; S.A. experienced delayed and incomplete record submissions in a custody matter and did not receive all of her files until months after discharge.
- Kurzman submitted redacted/incomplete records to a judge on repeated requests and missed a court-ordered deadline (later filing the unredacted records more than a month late).
- Kurzman also shipped materials from other clients’ files to S.A.; those materials were returned at Kurzman’s expense.
- A referee found multiple rule violations (including rules 1.1, 1.3, 1.6(a), 1.16(d), 4.4(a), and 8.4(d)), several aggravating factors, and recommended a 60‑day stayed suspension; the Director sought an imposed suspension and reinstatement petition requirement.
Issues
| Issue | Plaintiff's Argument (Director) | Defendant's Argument (Kurzman) | Held |
|---|---|---|---|
| Whether deposition question accusing M.S. of past sexual allegations violated professional rules | The question lacked good‑faith basis and violated rules barring conduct intended to embarrass and conduct prejudicial to administration of justice | Kurzman claimed recollection supported the question; contested credibility findings minimally | Court upheld referee: violated Minn. R. Prof. Conduct 4.4(a) and 8.4(d) |
| Whether delay in returning J.D.’s file violated Rule 1.16(d) | Director alleged unreasonable delay in surrendering client papers | Kurzman and J.D. both contributed to delay; referee found no violation | Court accepted referee’s conclusion: no violation as to J.D. |
| Whether failure to timely submit court-ordered records and delay in S.A.’s file return violated professional rules | Director alleged violations of competence, diligence, and termination duties (Rules 1.1, 1.3, 1.16(d), 8.4(d)) | Kurzman offered personal circumstances (e.g., caring for ill mother) but did not obtain extensions | Court affirmed violations: failure to timely provide records and delayed file return (S.A.) violated Rules 1.1, 1.3, 1.16(d), and 8.4(d) |
| Appropriate discipline and whether misconduct while on probation is aggravating; whether reinstatement petition required | Director sought executed 60‑day suspension and reinstatement petition because misconduct occurred on probation | Kurzman sought referee’s recommended stayed 60‑day suspension and challenged enhanced discipline | Court held misconduct while on probation is an aggravating factor and imposed a 60‑day executed suspension (no reinstatement petition), plus costs, CLE/probation conditions, and supervised probation on reinstatement |
Key Cases Cited
- In re McCormick, 819 N.W.2d 442 (Minn. 2012) (disciplinary history and misconduct while on probation are aggravating even when not similar to current misconduct)
- In re Moulton, 721 N.W.2d 900 (Minn. 2006) (new misconduct while on probation warrants more significant punishment)
- In re Graham, 609 N.W.2d 894 (Minn. 2000) (misconduct on probation is a significant aggravating factor)
- In re Albrecht, 779 N.W.2d 530 (Minn. 2010) (framework for assessing discipline: nature, cumulative weight, harm to public and profession)
- In re Lundeen, 811 N.W.2d 602 (Minn. 2012) (factors guiding discipline imposition)
- In re Jones, 834 N.W.2d 671 (Minn. 2013) (this court has final responsibility for attorney discipline)
- In re Voss, 830 N.W.2d 867 (Minn. 2013) (burden and standard of proof in disciplinary proceedings)
- In re Gurstel, 540 N.W.2d 838 (Minn. 1995) (outlier case requiring reinstatement petition despite a short suspension)