In re Petition for Disciplinary Action against Michelle Lowney MacDonald, a Minnesota Attorney, Registration No. ...
Paul Engh, Minneapolis, Minnesota, for respondent attorney.
S Y L L A B U S
- An attorney‘s good-faith reliance on her client‘s representations is not an absolute defense to attorney discipline, nor does the First Amendment immunize an attorney‘s false statements impugning the integrity of a judge.
- A 60-day suspension, followed by 2 years of supervised probation, is the appropriate discipline for an attorney who failed to competently represent a client; made false statements about the integrity of a judge with reckless disregard for the truth;*
O P I N I O N
PER CURIAM.
The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Michelle Lowney MacDonald alleging various acts of professional misconduct. After MacDonald responded to the allegations, we appointed a referee, who held a hearing and determined that MacDonald‘s conduct violated numerous provisions of the Minnesоta Rules of Professional Conduct. The referee recommended that we impose a 60-day suspension followed by 2 years of probation, and that we require MacDonald to undergo a mental-health evaluation. We conclude that the referee‘s findings and conclusions are not clearly erroneous and that a 60-day suspension followed by 2 years of supervised probation is the appropriate discipline for MacDonald‘s misconduct. We decline, however, to impose a mental-health evaluation as a condition of MacDonald‘s probation.
FACTS
MacDonald was admitted to practice law in Minnesota in 1987. Her primary area of practice is family law. Her only prior discipline was a private admonition in 2012 for trust-account violations and failing to cooperate with the Director‘s investigation. Before addressing MacDonald‘s specific arguments, we first summarize the referee‘s findings of fact and conclusions of law.
As the matter advanced toward trial, MacDonald directed an associate to subpoena S.G.‘s three prior attorneys to produce their bills and appear at trial because she believed that their testimony was necessary to lay the foundation for a request for attorney fees. MacDonald never contacted the attorneys, however, to ask whether the bills could be provided without a subpoena, nor did she contact opposing counsel to determine if a stipulation could be reached. Opposing counsel later testified that she would not have stipulated to the amount of the bills.
S.G.‘s former attorneys moved to quash the subpoenas. The court granted their motions, concluding that MacDonald failed to take reasonable steps to avoid placing an undue burden on the attorneys. See
MacDonald appealed the order, but the court of appeals affirmed, reasoning that MacDonald could have established the amount of attorney fees using alternative means, such as having her client testify to the amount of fees she personally paid to her attorneys. The referee concluded that MacDonald‘s use of the subpoenas violated
During the hearing on the motions to quash, MacDonald interrupted the judge several times. When the judge told her that she was being disruptive, prompting him to call a deputy forward, she replied, “[t]he rules are that an attorney can‘t talk in court?” MacDonald also interrupted the judge dozens of times during other hearings in the case. The referee concluded that MacDonald‘s disruptive conduct during these hearings violated
Because she had expected the judge to recuse, MacDonald admitted that she was “not ready to proceed” with the trial. She called only one witness, referred to the proceeding as a “pretend trial,” and interrupted the court at least half a dozen times. The referee concluded that her lack of preparation violated
Before the official start of the second day of trial, but after the judge had briefly taken the bench, MacDonald approached the court reporter and accused her of inaccurately recording the prior day‘s testimony. MacDonald announced that, if the court reporter was unwilling to accurately record the events at trial, she would do so herself. MacDonald then began taking pictures of the courtroom. Court deputies approached MacDonald and
Later that morning, during a recess, the deputies again approached MacDonald and advised her that she would receive a contempt citation for taking photographs in the courtroom. MacDonald initially cooperated with the deputies by accompanying them to a holding area to complete the necessary paperwork, but thereafter refused to give the deputies her full legal name, date of birth, and address. When asked for her name, for example, she replied, “[y]ou know my name.”8 The deputies tried for approximately 15 minutes to obtain basic biographical information for the citation, but MacDonald refused to cooperate. Eventually, the deputies placed her in custody.9
While MacDonald was in custody, S.G. retrieved MacDonald‘s files, including her trial materials, and left the courthouse. Once MacDonald returned to the courtroom, the judge reminded her that she had an obligation to her client and repeatedly inquired about how she wished to proceed, including offering her numerous chances to contact her client and retrieve her files. Each time, MacDonald refused to respond or otherwise seek an accommodation. Her involvement in the remainder of the trial was minimal. In fact, MacDonald agrees that she did not competently represent her client, but she testified at the disciplinary hearing that her inadequate representation was due solely to her illegal arrest. She maintains that there was “nothing [she] could say or do” to correct the situation and that she “didn‘t do anything wrong.”
The referee found that MacDonald‘s actions, both before and after her arrest, were an effort to produce a mistrial or support an appeal in S.G.‘s case, or to gather evidence for the federal lawsuit against the judge. The referee concluded that MacDonald‘s conduct violated
MacDonald subsequently amended the complaint in the federal lawsuit to include the facts surrounding the photo-and-arrest incident. The complaint alleged that the judge had retaliated against S.G. and MacDonald, compromised the Minnesota Court Information System (MNCIS), “usurped” case files with the assistance of opposing counsel, signed documents that he knew were false, and acted without jurisdiction or legal authorization. The federal district court dismissed all of the claims in the complaint, describing them as “futile” and noting that “nothing in the record supports the[m].” When asked at the disciplinary hearing about the basis for her allegations, MacDonald responded, “[t]he record speaks for itself.” The referee concluded that MacDonald violated
In addition to filing a federal lawsuit against the district judge in S.G.‘s case, MacDonald wrote a letter to the Board on Judicial Standards complaining about the judge‘s behavior and asserting that he had acted unethically during S.G.‘s trial. In total, she wrote four letters to the Board, each impugning the judge‘s integrity and repeating the allegations from the federal lawsuit. She sent copies of these letters to numerous elected officials and made similar remarks in letters to other attorneys. The referee concluded that MacDonald‘s statements were false, made with reckless disregard for the truth, and violated
Although the petition for disciplinary action focused primarily on MacDonald‘s
The district court scheduled J.D.‘s trial for only 2 days, but due in part to MacDonald‘s lack of preparation, the trial lasted 9 days, which was, as the court stated, “virtually unheard of in this kind of case.” During the trial itself, MacDonald repeatedly interrupted the judge, who ordered MacDonald to discontinue her disruptive behavior. Based in part on MacDonald‘s “disorganization, noncompliance with scheduling orders . . . and poor trial preparation,” the court ordered J.D. to personally pay $20,000 in conduct-based attorney fees. At the disciplinary hearing, MacDonald blamed J.D. for her lack of preparation and failure to comply with the scheduling order.
The referee concluded that MacDonald “knew or should have known she was responsible for . . . compliance with court scheduling orders” and that her failure to follow the scheduling ordеr violated
Following a 2-day disciplinary hearing, which included the presentation of evidence and testimony, the referee determined that the Director had proven by clear and convincing evidence that MacDonald‘s conduct violated
ANALYSIS
Because MacDonald ordered a transcript of the attorney-discipline proceedings, “the referee‘s findings of fact and conclusions of law are not binding.” In re Glasser, 831 N.W.2d 644, 646 (Minn. 2013). Nonetheless, we give them “great deference” and “will uphold them if they have evidentiary support in the record and are not clearly erroneous.” In re Paul, 809 N.W.2d 693, 702 (Minn. 2012); see also In re Aitken, 787 N.W.2d 152, 158 (Minn. 2010) (providing that we “review the interpretation of the MRPC de novo,” but “review the application of the MRPC to the facts of the case for clear error“). The referee‘s findings and conclusions are clearly erroneous only “when they leave us with the definite and firm conviction that a mistake has been made.” Glasser, 831 N.W.2d at 646 (citation omitted) (internal quotation marks omitted).
I.
MacDonald first challenges the referee‘s factual findings, primarily because she believes that the referee omitted critical facts. Among the facts excluded, according to MacDonald, is that her client had no billing records to provide, making her decision to subpoena S.G.‘s past attorneys reasonable, and that opposing counsel in the S.G. matter was also late to court several times. Because nothing in the record, other than MacDonald‘s testimony, supports these allegedly omitted facts, there is no clear error in the referee‘s findings. See In re Grigsby, 764 N.W.2d 54, 60–61 (Minn. 2009) (holding that it was not clear error for the referee to “fail[] to make the requested findings” in part because there was “no documentation in the record“). Moreover, neither fact, even if true, undermines
MacDonald further challenges the referee‘s findings surrounding her arrest and detention, again arguing that the referee missed crucial facts, not the least of which was that the deputies illegally arrested her and that her predicament left her powerless to remedy the situation. Again, we disagree. The record supports the referee‘s finding that the deputies would not have arrested MacDonald if she had provided basic biographical information, such as her name, date of birth, and address, as they had repeatedly requested. The video of the incident, the trial transcript, and the testimony of the two deputies provide ample support for the referee‘s findings surrounding the photo-and-arrest incident. Furthermore, even if the eventual arrest were illegal, MacDonald had a choice about whether to cooperate or escalate the situation. She elected to make things worse by refusing to cooperate with the deputies in even the most perfunctory way, which supports the referee‘s overarching finding that, had she provided the requested information to the deputies, “she would [have been] allowed to return to the courtroom.”
Finally, MacDonald challenges numerous findings that simply restate the actual words that she used during S.G.‘s trial and the disciplinary hearing. MacDonald fails to explain why she believes these findings are erroneous. Even so, we reject MacDonald‘s challenges because we have no reason to doubt the accuracy of the official transcripts relied upon by the referee in making these findings. Likewise, the referee did not clearly err in summarizing the allegations from MacDonald‘s federal lawsuit because there is ample “evidentiary support in the record” for each finding, including from the amended complaint
II.
Having upheld the referee‘s findings, we nоw turn to MacDonald‘s challenges to the referee‘s conclusions of law. MacDonald challenges nearly every conclusion of law. She specifically challenges the referee‘s conclusion that she violated both
A.
MacDonald‘s first legal challenge is to the validity of the Dakota County standing order prohibiting anyone, including attorneys, from taking pictures “in any courtroom.” Order Regarding Cameras and Other Recording Equipment in Court Facilities (Dakota Cty. Dist. Ct. July 1, 2005). Unlike the General Rule of Practice that bans anyone from taking photographs “during a trial,”
The conflict that MacDonald identifies does not exist, either as a factual or legal
Legally, moreover, leaving aside whether it is appropriate to have a local standing order that addresses the same subject as a General Rule of Practice, there is no actual conflict between the two rules. One rule,
B.
MacDonald‘s second legal challenge, the first of her two general defenses, is her theory that she was “permitted to believe” and “act upon” her client‘s representations in
But neither of the aforementioned principles was inconsistent with MacDonald‘s duty to “provide competent representation,” including her obligation to employ the “knowledge, skill, thoroughness, and preparation” that was “reasonably necessary.”
MacDonald‘s claim that “she was entitled to believe her client” without performing any investigation into her client‘s story is therefore untenable under the circumstances. The record establishes that MacDonald had access to records and information that would have undermined the accuracy of S.G.‘s account. Yеt MacDonald did not use the “sources and . . . information” available to her to verify what S.G. had told her. In re File No. 17139, 720 N.W.2d 807, 814 (Minn. 2006). The referee was accordingly entitled to conclude, despite MacDonald‘s claims of good faith, that a reasonable attorney would not have made
C.
MacDonald‘s final legal challenge, and the second of her general defenses, is that the First Amendment absolutely immunizes her criticisms of the district judge, including her decision to file the federal lawsuit and to write letters disparaging him to the Board on Judicial Standards and to other attorneys and public officials. To the extent that MacDonald claims that she had an absolute right to criticize the judge, even in the absence of a reasonable investigation or sufficient evidence in support of her allegations, MacDonald is wrong.
As an officer of the court, an attorney does not have an absolute right to make false and disparaging remarks about judges or other attorneys. Rather, attorneys are subject to a modified version of the constitutional standard for defamation claims. The standard, adapted from New York Times Co. v. Sullivan, 376 U.S. 254 (1964), applies a version of the actual-malice standard from defamation cases, but modifies it to ask what a “reasonable attorney . . . would do in the same or similar circumstances.”11 Graham, 453 N.W.2d at
Applying the modified actual-malice test from Graham, we agree with the referee that MacDonald is not entitled to First Amendment protection for her statements because no reasonable attorney in MacDonald‘s shoes would have made such serious allegations about a judge‘s integrity and impartiality without substantiating evidence. Our conclusion applies equally to her allegations in the federal lawsuit, in her complaints to the Board on Judicial Standards, and in her correspondence to other attorneys and public officials. As we have held, when “an attorney abuses” her First Amendment rights, “she is subject to discipline.” Id. at 321.
III.
We now turn to the appropriate discipline. The referee recommended that we impose a 60-day suspension followed by 2 years of probation, including requiring MacDonald to undergo a mental-health evaluation and comply with its recommendations as a condition of her probation. MacDonald maintains that her misconduct does not warrant any discipline, and the Director, for her part, requests that we suspend MacDonald for 90 days. “Although we place great weight on the referee‘s recommended discipline, we retain ultimate responsibility for determining the appropriate sanction.” In re Rebeau,
The purpose of attorney discipline “is not to punish the attorney, but rather to protect the public [and] the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.” In re Fairbairn, 802 N.W.2d 734, 742 (Minn. 2011) (citation omitted) (internal quotation marks omitted). We consider four factors in determining the appropriate discipline: “(1) the nature of the misconduct; (2) the cumulative weight of the disciplinary violations; (3) the harm to the public; and (4) the harm to the legal profession.” In re Nelson, 733 N.W.2d 458, 463 (Minn. 2007). Beyond those four factors, we consider the discipline imposed in similar cases and any aggravating or mitigating circumstances that may exist. In re Tigue, 900 N.W.2d 424, 431 (Minn. 2017).
A.
We first address the four factors, beginning with the nature of MacDonald‘s misconduct. Some of MacDonald‘s misconduct—such as making false statements about a judge with reckless disregard for the truth, both in pleadings and elsewhere—involves dishonesty, which “is significant misconduct.” In re Nwaneri, 896 N.W.2d 518, 525 (Minn. 2017); accord In re Nett, 839 N.W.2d 716, 722 (Minn. 2013) (stating that an
Cumulatively, MacDonald‘s misconduct was committed over the course of more than a year, eliminating the possibility that her violations were merely a “brief lapse in judgment or a single, isolated incident.” Nwaneri, 896 N.W.2d at 525 (citation omitted) (internal quotation marks omitted). Her misconduct was far-reaching and varying, from making recklessly false statements about a judge to failing to competently represent a client. See Torgerson, 870 N.W.2d at 615 (discussing the “length and variety” of the misconduct). As the Director points out, MacDonald “violated seven ethics rules through multiple acts in the course of two matters.” Because MacDonald committed “multiple disciplinary rule violations” over more than one matter, the cumulative weight of her misconduct warrants “severe discipline even when a single act standing alone would not have warranted such discipline.” Nelson, 733 N.W.2d at 464 (citation omitted) (internal quotation marks omitted).
Despite these facts, MacDonald‘s position is that she has not harmed the public, claiming that her clients were satisfied with her performance and that neither filed a malpractice action or ethical complaint against her. Yet, in addition to the harm her clients actually suffered, regardless of their level of satisfaction, MacDonald fails to recognize that “making false statements to a court harms [both] the public and the legal profession” in and of itself. Nwaneri, 896 N.W.2d at 526. So too does baselessly attacking the integrity of a judge and repeatedly disrupting court proceedings, the latter of which “prolong[s] and delay[s] proceedings and caus[es] needless expenditure of judicial . . . resources.” Nett, 839 N.W.2d at 722 (citation omitted) (internal quotation marks omitted); In re Jensen, 468 N.W.2d 541, 546 (Minn. 1991) (“An attorney does not advance the client‘s cause . . . by making unfounded allegations about [a] judge[] . . . .“). In sum, MacDonald‘s “unprofessional actions and demeanor reflect adversely on the bar, and [were] destructive of public confidence in the legal profession.” Torgerson, 870 N.W.2d at 616.
B.
We must also consider any aggravating and mitigating factors. The referee found four aggravating factors and no mitigating factors. We review the referee‘s application of
First, the referee found that MacDonald‘s legal experience was an aggravating factor. She has practiced law since 1987, a career that has spanned over 30 years. We agree that “[c]ommitting misconduct despite this substantial experience is an aggravating factor.” Tigue, 900 N.W.2d at 432.
Second, the referee found three additional aggravating factors based on MacDonald‘s (1) decision to blame others rather than accept responsibility for her actions; (2) her “lack of insight into how her acts affected others“; and (3) her “continual inability to acknowledge facts found by the courts.” To be sure, MacDonald testified at her disciplinary hearing that she was “sorry for whatever [she] did.” Nevertheless, there is adequate support in the record that, even if MacDonald expressed remorse at her hearing, she continues to lack insight into how her misconduct has affected others, including the courts and her clients. Accordingly, we conclude that MacDonald‘s lack of remorse, lack of insight, and blaming of others are aggravating. Due to the substantial overlap among these factors, however, they give rise to only a single aggravating factor, not three.13 See In re Ulanowski, 800 N.W.2d 785, 803–04 (Minn. 2011) (considering the “[f]ailure to acknowledge wrongfulness or express remorse,” as well as “shift[ing] the blame . . . onto others,” to be only one aggravating factor).
The other factor MacDonald identifies is her pro-bono work, which she describes as “extensive” and culminated in her receipt of the Northstar Lawyers pro-bono award on several occasions. It is true that we have recognized that “extensive pro bono or civil work” might constitute mitigation. In re Wylde, 454 N.W.2d 423, 426 n.5 (Minn. 1990). But here, despite claiming that she handled S.G.‘s case without charging a fee, she does not dispute the fact that she has an attorney lien against S.G. for $193,190.05. This fact, in addition to the qualitative judgment required of the referee when determining whether pro bono work is adequately extensive to deserve mitigation, leads us to conclude that the referee did not clearly err in concluding that MacDonald is not entitled to mitigation for her pro-bono work. See In re Albrecht, 779 N.W.2d 530, 539 (Minn. 2010).
C.
Finally, we examine similar cases to ensure the imposition of consistent discipline, Tigue, 900 N.W.2d at 431, even though we impose discipline on a case-by-case basis, In re Walsh, 872 N.W.2d 741, 749 (Minn. 2015) (indicating that we “tailor the sanction to the specific facts of each case“). No case involves the same circumstances and constellation
In Torgerson, perhaps the most analogous case to this one, we disciplined an attorney for “ma[king] false statements, disobey[ing] a court order, [and] act[ing] belligerently toward a judge and court staff,” among other misconduct. 870 N.W.2d at 605. Like MacDonald, Torgerson “filed various pleadings . . . alleging the judge was biased,” which contained statements that were false or made with reckless disregard for their truth. Id. at 606. Torgerson also shouted at court employees and “interrupted [a] judge multiple times” during a hearing. Id. at 608. Finally, like MacDonald, Torgerson had “substantial experience” practicing law and “fail[ed] to recognize the wrongfulness of her actions.” Id. at 613. Although the referee recommended a public reprimand, we imposed a 60-day suspension. Id. at 606, 616.
In Graham, another case bearing some similarities to this one, an attorney pursued “groundless and frivolous” allegations and repeatedly accused a judge of conspiring against his clients. 453 N.W.2d at 315, 324–25. As in this case, the attorney made these statements with reckless disregard for the truth and had an “attitude” that suggested he “believe[d] in a conspiracy against him and preferred to find fault with others [rather] than himself.” Id. at 325. Although Graham did not include some additional misconduct committed by MacDonald, such as violating court rules, repeatedly disrupting court procеedings, and failing to represent a client competently, we imposed a 60-day suspension. Id.
Weighing the nature and extent of MacDonald‘s misconduct together with the aggravating factors present here, we conclude that a 60-day suspension followed by 2 years
Although we have decided to place additional conditions on MacDonald during her probation, we do not accept one condition proposed by the referee. The referee recommended, and the Director agrees, that we order MacDonald to undergo a mental-health evaluation and follow all of its recommendations as a condition of her probation. Not only is there limited precedent for imposing such a condition when the attorney has not placed her mental health at issue in the disciplinary proceeding, but the referee here has made no factual findings that support it. See In re Fuller, 621 N.W.2d 460, 470 (Minn. 2001) (concluding that the attorney‘s “possible psychological problem,” which was “not acknowledged” by the attorney, “need[ed] to be addressed in the sanction“); cf. In re Hanson, 592 N.W.2d 130, 130–31 (Minn. 1999) (requiring the attorney to “affirmatively show that she is psychologically fit to practice law” after “the referee found that . . . [the attorney] ha[d] been treated for clinical depression and addiction to gambling“). Under these circumstances, we decline to require a mental-health evaluation as a condition of MacDonald‘s probation.
Accordingly, we order that:
- Respondent Michelle Lowney MacDonald is suspended from the practice of law for a minimum of 60 days, effective 14 days from the date of this opinion.
- Respondent shall comply with
Rule 26, Rules on Lawyers Professional Responsibility (RLPR) (requiring notice of suspension to clients, opposing counsel, andtribunals), and shall pay $900 in costs under Rule 24(a), RLPR . - Respondent shall be eligible for reinstatement to the practice of law following the expiration of the suspension period provided that, not less than 15 days before the end of the suspension period, respondent files with the Clerk of the Appellate Courts and serves upon the Director an affidavit establishing that she is current in continuing-legal-education requirements; has complied with
Rules 24 and26, RLPR ; will be practicing law in accordance with the requirements of paragraph 5(c) below upon reinstatement; and has complied with any other conditions for reinstatement imposed by the court. - Within 1 year of the date of this opinion, respondent shall file with the Clerk of the Appellate Courts and serve upon the Director proof of her successful completion of the written examination required for admissiоn to the practice of law by the State Board of Law Examiners on the subject of professional responsibility. Failure to timely file the required documentation shall result in automatic resuspension, as provided in
Rule 18(e)(3), RLPR . - Upon reinstatement to the practice of law, respondent shall be placed on supervised probation for 2 years, subject to the following conditions:
- Respondent shall cooperate fully with the Director‘s Office in its efforts to monitor compliance with this probation. Respondent shall promptly respond to the Director‘s correspondence by the due date. Respondent shall provide the Director with a current mailing address and shall immediately notify the Director of any change of address. Respondent shall cooperate with the Director‘s investigation of any allegations of unprofessional conduct that may come to the Director‘s attention. Upon the Director‘s request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
- Respondent shall abide by the
Minnesota Rules of Professional Conduct . Respondent shall not engage in the solo practice of law, but shall work in a setting where she is in daily contact with, and under the direct supervision of, another Minnesota licensed attorney. The attorney who directly supervises respondent‘s work must co-sign all pleadings, briefs, and other court documents that respondent files. This attorney may not be an associate who works for respondent‘s law firm. Any attorney or law firm with whom she practices shall be informed of the terms of this probation. - In addition to the supervision provided by the attorney referenced in paragraph (c), respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director, to monitor her compliance with the terms of this probation (“probation supervisor“). Respondent shall give the Director the names of four attorneys who have agreed to be nominated as respondent‘s probation supervisor within 2 weeks of the date of this opinion. If, after diligent effort, respondent is unable to locate a probation supervisor acceptable to the Director, the Director shall appoint a probation supervisor. Until such probation supervisor has signed a consent to supervise, respondent shall, on the first day of each month, provide the Director with an inventory of client files as described in paragraph (e) below. Respondent shall make active client files available to the Director upon request.
- Respondent shall cooperate fully with the probation supervisor and the Director‘s efforts to monitor her compliance with this probation. Respondent shall contact the probation supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall provide the probation supervisor with an inventory of all active client files by the first day of each month during the probation. With respect to each active file, respondent shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent‘s probation supervisor shall file written reports with the Director quarterly or at such more frequent intervals as the Director may reasonably request.
- Respondent shall initiate and maintain procedures that ensure thorough inquiry into, and verification of, factual allegations in pleadings and court filings. Respondent shall also initiate and maintain procedures to ensure timely appeals, including service on all required entities. Within 30 days of the date of this opinion, respondent shall provide the Director and the probation supervisor, if any, with a detailed written plan outlining such procedures.
- Respondent shall take 15 credits in continuing-legal-education coursework in the areas of civil-trial and appellate practice, with at least one course emphasizing
each of the following: trial preparation and courtroom decorum.
LILLEHAUG, HUDSON, and CHUTICH, JJ., took no part in the consideration or decision оf this case.
CONCURRENCE & DISSENT
MCKEIG, Justice (concurring in part, dissenting in part).
We impose discipline for attorney misconduct “to protect the public, to protect the judicial system, and to deter future misconduct.” In re Rebeau, 787 N.W.2d 168, 173 (Minn. 2010). We have said that “[t]he public interest is and must be the paramount consideration” and that our “primary duty . . . must be protection of the public.” In re Hanson, 103 N.W.2d 863, 864 (Minn. 1960). The court concludes that a 60-day suspension is adequate to protect the public, the profession, and the administration of justice in this case. I disagree. I conclude that our duty to the public and the administration of justice requires a 6-month suspension, along with a petition for reinstatement, as opposed to an application for reinstatement by affidavit. See
ANALYSIS
I concur with the court‘s conclusions in Parts I and II that the referee‘s findings and conclusions were not clearly erroneous. I disagree, however, with the court‘s decision in Part III to impose only a 60-day suspension and 2 years of probation without requiring a mental-health evaluation.
There are four underlying bases for my conclusion that more severe discipline is warranted here: (1) the facts establish that MacDonald engaged in an extensive pattern of making false statements and pursuing frivolous claims, disrupting court proceedings, and disregarding court rules and orders—misconduct that, in other instances, would result in a lengthy suspension; (2) MacDonald‘s misconduct is far more serious than that in Torgerson or Graham, where we imposed 60-day suspensions; (3) MacDonald‘s misconduct has caused serious harm; and (4) multiple aggravating factors are present. Taking these considerations together, it is clear that a 60-day suspension is inadequate.
A.
In calculating the appropriate discipline, I first look to the nature of MacDonald‘s misconduct and the suspensions we have previously imposed for similar misconduct. See In re Tigue, 900 N.W.2d 424, 431 (Minn. 2017). I also look to the cumulative nature of MacDonald‘s misconduct, which includes multiple, repeated rule violations. See id. When viewed in this comprehensive light, I can only conclude that a sanction more severe than a 60-day suspension, together with a mental-health evaluation, is necessary to fulfill our duty to protect the public.
MacDonald violated at least seven separate Rules of Professional Conduct over the course of two different client matters. But the number of violations alone does not adequately reflect the seriousness of her misconduct. MacDonald‘s conduct can be grouped into three broad categories: (1) making false statements about the integrity of a judge and pursuing frivolous claims; (2) disrupting court proceedings; and (3) disregarding
First, MacDonald filed a federal lawsuit against the district judge on behalf of her client S.G., seeking injunctive relief and damages in excess of $55 million for alleged constitutional violations, false imprisonment, battery, and other tort claims. The federal court concluded that these allegations lacked support in the record and were “futile” under the “well-settled” doctrine of judicial immunity. The federal lawsuit contained false statements concerning the integrity of the judge that MacDonald made in reckless disregard for their truth. MacDonald also repeatedly made similar false statements concerning the integrity of the district judge in reckless disregard for their truth, both in state court proceedings and in multiple letters to the Board on Judicial Standards (BJS).
“[G]enerally, making false statements is serious misconduct” that warrants “severe discipline.” In re Grigsby, 815 N.W.2d 836, 845 (Minn. 2012). The seriousness of an attorney‘s false representations is exacerbated when multiple false statements are made in multiple proceedings before multiple courts. See In re Houge, 764 N.W.2d 328, 337–38 (Minn. 2009). This type of misconduct has previously resulted in a 3-month suspension. See, e.g., In re Tieso, 396 N.W.2d 32, 33–34 (Minn. 1986) (suspending an attorney for filing a single lawsuit that was “groundless,” “frivolous, [and] vexatious“). When attorneys have “use[d] convoluted, frivolous pleadings . . . to delay litigation,” we have imposed even lengthier suspensions. In re Murrin, 821 N.W.2d 195, 208, 210 (Minn. 2012) (suspending an attorney for 6 months for filing frivolous lawsuits that “required three courts and nearly 50 defendants to . . . wade through thousands of pages“).
Second, on multiple occasions in two separate matters, MacDonald engaged in
Third, MacDonald abused the subpoena process in the S.G. matter and violated the scheduling order in the J.D. case. Although we have never specifically disciplined an attorney for abusing subpoenas, we have suspended attorneys for disobeying similar discovery rules and court orders. See, e.g., In re Walsh, 872 N.W.2d 741, 743–44 (Minn. 2015) (suspending an attorney for 6 months for failing to timely serve an affidavit of expert review and a response to a motion, among other documents, and “repeatedly fail[ing] to comply with deadlines in the court‘s scheduling order,” among other misconduct); In re Paul, 809 N.W.2d 693, 697–99, 706 (Minn. 2012) (concluding a 4-month suspension was
Each of these violations is independently deserving of significant discipline. See In re Sigler, 512 N.W.2d 899, 901 (Minn. 1994) (“Based on our cases, each of respondent‘s violations taken alone would warrant discipline . . . .“). Given the sheer number of these separate violations, and that MacDonald repeatedly engaged in several of the violations, a 60-day suspension is inadequate and inconsistent with our precedent. I also recognize that we consider each discipline case individually, but “we strive for consistency” in our decisions. In re Rooney, 709 N.W.2d 263, 268 (Minn. 2006). A 60-day suspension introduces inconsistency into our precedent.
The appropriate discipline based on the cumulative impact of MacDonald‘s multiple violations is a suspension of 6 months. Our case law demonstrates that this is well within the range of suspensions for similar misconduct. See, e.g., In re Selmer, 866 N.W.2d 893, 894 (Minn. 2015) (suspending an attorney for 12 months for “a pattern of harassing and frivolous litigation” and a failure to “abide by court orders,” among other misconduct); In re Jensen, 542 N.W.2d 627, 628, 633–34 (Minn. 1996) (concluding an 18-month
B.
The majority relies on two cases—In re Torgerson, 870 N.W.2d 602 (Minn. 2015), and In re Graham, 453 N.W.2d 313 (Minn. 1990)—to support its conclusion that a 60-day suspension is appropriate. I agree that there is some similarity between MacDonald‘s misconduct and the misconduct of the attorneys in these cases. MacDonald‘s misconduct, however, is more extensive than the misconduct in each of these cases. As а result, Torgerson and Graham actually demonstrate that a 60-day suspension is an inadequate sanction.
In Torgerson, we suspended an attorney for 60 days for “ma[king] false statements” about other attorneys, “disobey[ing] a court order, [and] act[ing] belligerently toward a judge and court staff.” 870 N.W.2d at 605–08. Torgerson “filed various pleadings . . . alleging that the judge was biased,” which contained statements that were made with reckless disregard for their truth, and “interrupted the judge multiple times” during an omnibus hearing. Id. at 606, 608–09, 611.
In Graham, we suspended an attorney for 60 days for pursuing “groundless and frivolous” allegations that accused a judge, a magistrate judge, and two attorneys of conspiring against him and his clients. 453 N.W.2d at 315, 324–25. Graham made these false statements with reckless disregard for their truth. Id. at 324. But even the court acknowledges that ”Graham did not include some additional misconduct committed by MacDonald, such as violating court rules, repeatedly disrupting court proceedings, and failing to represent a client competently.” Although Torgerson and Graham are helpful because there is some similarity to the misconduct MacDonald committed, MacDonald
C.
The significant harm that MacDonald‘s misconduct has caused lends further support for the lengthier suspension that I propose. See In re Nelson, 733 N.W.2d 458, 463 (Minn. 2007) (stating that two of the factors that we consider when determining the appropriate discipline are “the harm to the public, and . . . the harm to the legal profession“). Like the court, I am troubled by respondent‘s inability to distinguish fact from fiction, and by her pattern of brazenly alleging falsehoods as facts. MacDonald‘s conduct in making false statements about the district judge in court motions, pleadings, BJS complaints, and legal correspondence demonstrates a pervasive disregard for truth. Neither the public nor the profession benefits when attorneys make baseless accusations about allegedly biased judges and “pretend trials.”
The integrity of the judicial system depends on the public‘s belief that judges are fair, and false accusations of biased judges erode that public trust. See Wiedemann v. Wiedemann, 36 N.W.2d 810, 812 (Minn. 1949) (stating that “it is of transcendent importance to the litigants and the public generally that there should not be the slightest suspicion as to [a judge‘s] fairness and integrity” (emphasis omitted) (citation omitted) (internal quotation marks omitted)). The integrity of our judicial system also depends on the integrity of lawyers. In re Schmidt, 402 N.W.2d 544, 548 (Minn. 1987). Thus, “[w]e should not hesitate to impose severe discipline when a lawyer demonstrates a lack of truthfulness and candor to . . . the judicial system.” In re LaChapelle, 491 N.W.2d 17, 21
I am also concerned by MacDonald‘s disrespectful and unprofessional behavior.1 The following remarks provide a window into MacDonald‘s inability to give judicial officers, and in turn the judicial system, the respect and decorum required:
“The rules are that an attorney can‘t talk in court?”
“And you are telling me that you can be impartial in this trial, which you haven‘t done since day one[?]”
“Do you want the evidence or not?”
See In re Michael, 836 N.W.2d 753, 765 (Minn. 2013) (disciplining an attorney for a “flippant rhetorical question” directed at a judge, which was “unprofessional and disrespectful“); see also In re Getty, 401 N.W.2d 668, 671 (Minn. 1987) (“[T]here is a line that should not be crоssed and respondent has crossed it.“). As we have previously
While we are fully aware of a lawyer‘s responsibility to aggressively represent his or her clients’ interest, respondent‘s conduct here far exceeds the limits of professional representation, despite the numerous warnings of lower tribunals and heavy sanctions imposed. . . . [R]espondent marched relentlessly onward . . . to the great detriment of [her] clients and in total disregard of the waste of judicial resources.
MacDonald‘s lack of respect and decorum caused a separate and significant harm: a drain on judicial resources and a detriment to the administration of justice. See In re Letourneau, 792 N.W.2d 444, 453 (Minn. 2011) (discussing how an attorney‘s misconduct “needlessly increased the burden on a heavily loaded and underfunded court system“). For example, the J.D. trial that was scheduled for 2 days took upwards of 9 days due, in part, to MacDonald‘s lack of preparation. The district court judge noted that such a long trial was “virtually unheard of.” During the photo-and-arrest incident in the S.G. trial, the judge noted that her behavior appeared “orchestrated” to delay the proceedings.
But these delays do not take into account the costs to MacDonald‘s clients, opposing counsel, and opposing parties—both in terms of time and money. See Murrin, 821 N.W.2d at 208 (discussing how failing to follow court rules and orders “cause[s] harm to the public“); In re Ulanowski, 800 N.W.2d 785, 801 (Minn. 2011) (addressing how frivolous
D.
An analysis of the aggravating and mitigating factors provides further support for my proposed discipline. Although the court concludes that two aggravating factors are present, I count four aggravating factors. I agree with the court that MacDonald‘s significant legal experience is an aggravating factor and that her disciplinary history is neither aggravating nor mitigating.2
The court counts respondent‘s lack of remorse, lack of insight, and blaming of others as a single aggravating factor.3 Yet our case law suggests that these are three independent
MacDonald claims that her pro bono services to S.G. and J.D. should be a mitigating factor. In reality, she has an attorney lien against one of these “pro bono” clients in the amount of $193,190.05. She insists that this lien is “symbolic.” But there is nothing symbolic about a recorded lien. Like the court, I conclude that MacDonald‘s pro bono services do not qualify as a mitigating factor. If it were to be considered at all, it would be an aggravating factor, see Ulanowski, 800 N.W.2d at 802 (“Making misrepresentations can be considered an aggravating factor.“), but because the Director does not allege this is an aggravating factor, I do not consider it at all, see In re Matson, 889 N.W.2d 17, 24–25 (Minn. 2017).
II.
In addition to suspension and probation, I believe that a mental-health evaluation is warranted. The referee recommended a mental-health evaluation, and we “afford ‘great weight’ to the referee‘s recommendation.” In re Rambow, 874 N.W.2d 773, 778 (Minn. 2016)
I recognize that “neither the referee nor this court is qualified to arrive at a diagnosis or prognosis concerning the respondent‘s mental health.” In re Davis, 264 N.W.2d 371, 373 (Minn. 1978). It is therefore unknown “[w]hether respondent is in need of” mental-health services. Id. It is clear, however, that the referee acknowledged her own limitations and deferred to a mental-health professional on this matter. I would do the same.
We have recognized that mental-health conditions may have a causal relationship with attorney misconduct. See, e.g., In re Clark, 834 N.W.2d 186, 187–88 (Minn. 2013) (recognizing that mental-health issues may impact an attorney‘s “life, her cognitive abilities, and her emotional state,” which in turn may affect the attorney‘s ability to competently represent clients). If it is proper for us to require a disciplined attorney to continue existing mental-health treatment and complete therapy programs recommended by treating therapists—and it is—I do not see anything improper about requiring a mental-health evaluation under these circumstances. See, e.g., In re Fischer, 901 N.W.2d 155, 156 (Minn. 2017) (order).4 If anything, requiring an evaluation is less onerous or invasive than
Though it is unclear “[w]hether respondent is in need of” mental-health services, it is clear that she “would be well advised to consider it.” Davis, 264 N.W.2d at 373. I would therefore adopt the referee‘s recommendation to include a mental-health evaluation as a condition of her probation, and further condition her reinstatement on “provid[ing] adequate psychological or other medical evidence establishing that [she] has no . . . psychological problems that would prevent [her] from practicing law competently, diligently, and within the rules of conduct for attorneys.” In re Levenstein, 438 N.W.2d 665, 669 (Minn. 1989).
CONCLUSION
Today, the court hesitates to impose sufficient discipline, and it does so at the expense of protecting the public. Although MacDonald portrays herself as a victim, the true victim in all of this is the public. I respectfully disagree with the court‘s decision to
Notes
A lawyer is prohibited from “commit[ing] a criminal act that reflects adversely on the lawyer‘s honesty, trustworthiness, or fitness as a lawyer in other respects.”