In the Matter of Keven A. McKenna
110 A.3d 1126
| R.I. | 2015Background
- Keven A. McKenna, a 40-year member of the Rhode Island bar, faced a disciplinary petition alleging four counts: (1) unauthorized practice as an LLC after this Court’s order; (2) failure of candor and misrepresentation in his professional corporation’s bankruptcy (Wells receivable); (3) refusal to produce records subpoenaed by Assistant Disciplinary Counsel and failure to keep required records under Rule 1.19; and (4) lack of candor and disruptive conduct in Workers’ Compensation and Bankruptcy courts.
- The Disciplinary Board panel held eight hearings, heard multiple witnesses, admitted exhibits (including Workers’ Compensation transcripts), and found all four counts proven by clear and convincing evidence. The board recommended a one-year suspension.
- McKenna repeatedly challenged the board’s and this Court’s authority, filed multiple federal and state suits attacking disciplinary procedures and Disciplinary Counsel, and moved to recuse justices and stay proceedings under the anti-SLAPP statute. Those procedural/constitutional challenges were rejected.
- The Supreme Court reviewed the record, rejected McKenna’s jurisdictional and due-process attacks, sustained the board’s findings of misconduct (dishonesty, misrepresentation, disruption, and subpoena noncompliance), and adopted the board’s recommendation: a one-year suspension effective 30 days after the opinion.
- A concurring/dissenting justice would have imposed a two-year (or higher) suspension and conditioned reinstatement on production of the subpoenaed records, finding the one-year sanction inadequate given the number and seriousness of misrepresentations and McKenna’s obstreperous conduct.
Issues
| Issue | Plaintiff's Argument (McKenna) | Defendant's Argument (Disciplinary/State) | Held |
|---|---|---|---|
| Court authority to discipline attorneys and reach out-of-court conduct | Supreme Court lacks power to regulate non-courtroom/non-client activities; disciplinary rules violate separation of powers | Supreme Court has plenary, inherent authority to regulate attorneys—including out-of-court conduct—and to appoint Disciplinary Counsel and a board | Court held it has plenary authority to regulate attorney conduct in and out of court and to use disciplinary procedures and subpoena power |
| Applicability of federal supremacy / jurisdiction over federal-court conduct | State discipline cannot reach conduct in federal courts (supremacy conflict) | Federal and state disciplinary rules are compatible; federal courts adopt state rules locally; no impermissible interference | Court held no supremacy-clause problem; state rules apply to attorneys practicing in federal/local federal courts |
| Procedural due process / alleged structural bias (investigatory/prosecutorial/adjudicatory functions merged) | Process denied full-board hearing, biased tribunal, and improper combination of functions | Board procedures provide notice, hearing before a panel, separation of investigatory and adjudicatory roles; review by this Court protects fairness | Court held McKenna received meaningful process; structure did not pose unconstitutional risk of bias; recusal and other due-process motions denied |
| Substantive misconduct: (a) use of LLC after Court order; (b) bankruptcy misrepresentations re: Wells receivable; (c) refusal to produce subpoenaed records; (d) disruptive/lack of candor in tribunals | Each conduct challenged as either lawful or outside Court’s authority; asserted justificatory explanations | Board/Disciplinary Counsel: continued use of LLC name and account violated Rules 7.1/7.5/8.4(c); nondisclosure and misstatements in bankruptcy violated Rules 3.3/8.4(c); failure to produce subpoenaed records violated Rule 1.19; disruptive, evasive testimony/behavior violated Rules 3.3/3.5(d) | Court adopted board’s findings: McKenna violated the cited Rules on all counts and suspended him for one year; Disciplinary Counsel’s request for disbarment was rejected but sanction affirmed |
Key Cases Cited
- In re Lallo, 768 A.2d 921 (R.I. 2001) (state supreme court has authority to discipline members of the bar)
- Rhode Island Bar Ass'n v. Automobile Serv. Ass'n, 179 A. 139 (R.I. 1935) (historical discussion of the court's inherent power to regulate the practice of law)
- In re Snyder, 472 U.S. 634 (U.S. 1985) (courts have inherent authority to suspend or disbar lawyers as officers of the court)
- In re Petition of Almond, 603 A.2d 1087 (R.I. 1992) (state court’s responsibility to promulgate rules of professional conduct and apply them to federal-court practice)
- Germane v. In re Request for Advisory Opinion from House, 971 A.2d 555 (R.I. 2009) (Mathews test and separation-of-powers principles applied to administrative/judicial functions)
- In re Schiff, 677 A.2d 422 (R.I. 1996) (discipline imposed for false submissions to federal court)
- Withrow v. Larkin, 421 U.S. 35 (U.S. 1975) (test for risk of bias when administrative body combines investigative and adjudicative functions)