In re Petition for Disciplinary Action against Duane A. Kennedy, a Minnesota Attorney, Registration No. 0055128. ...
Eric L. Newmark, Minneapolis, Minnesota, for respondent.
S Y L L A B U S
- The referee’s findings of fact and conclusions of law that respondent attorney violated the Minnesota Rules of Professional Conduct by sexually harassing a client, attempting to have sexual relations with a client, and lying to police and the Director of the Office of Lawyers Professional Responsibility, in violation of
Minn. R. Prof. Conduct 8.1(a) ,8.4(a) ,8.4(c) ,8.4(d) , and8.4(g) , are supported by the record. - The appropriate discipline is an indefinite suspension from the practice of law with no right to petition for reinstatement for 2 years.
Indefinitely suspended.
PER CURIAM.
The Director of the Office of Lawyers Professional Responsibility filed a petition for revocation of probation and for further disciplinary action and a supplementary petition against respondent Duane A. Kennedy. The petition alleged that Kennedy violated
Kennedy admitted the allegations of the supplementary petition, and denied the allegations of the initial petition. Following an evidentiary hearing, a referee found that Kennedy violated the Rules of Professional Conduct as alleged and that there were multiple aggravating factors and concluded that Kennedy caused harm to his client and to the legal profession. The referee recommended that Kennedy be indefinitely suspended from the practice of law and ineligible to petition for reinstatement for a period of 2 years. We conclude that the referee did not clearly err by finding that Kennedy committed the alleged misconduct and that the referee’s recommended discipline is appropriate.
FACTS
Kennedy was admitted to the Minnesota Bar in 1976. Kennedy is a solo practitioner in Rochester, and a significant part of his practice is criminal defense.
While on probation, Kennedy was retained by 22-year-old K.P. in April 2015. K.P. was charged with fifth-degree possession of a controlled substance (three Adderall pills). Outside of a single speeding ticket, K.P. had no prior involvement with the criminal justice system. K.P. was embarrassed and ashamed that she was charged with a crime and wanted to avoid public attention.
On April 15, 2015, K.P. met with Kennedy at his office and signed a retainer agreement that set a flat fee for representation at $11,500. K.P. paid part of the fee during her office visit, and Kennedy agreed to accept payments over time on the remaining balance. Between April and June, K.P. met with Kennedy at both his office and her work location and made additional payments. As of June, K.P. owed a remaining balance of $4,700 to Kennedy.
The Director subsequently interviewed Kennedy. Kennedy denied engaging in any sexual conversations with K.P., stating that “none of that happened.” When asked if he was being truthful, Kennedy responded that he was being truthful.
The Director filed a disciplinary petition, alleging that Kennedy bartered with K.P. for sexual favors in exchange for legal services and that he made false statements to police and the Director about his misconduct, in violation of
At Kennedy’s disciplinary hearing, K.P. testified that, throughout their attorney-client relationship, Kennedy had repeatedly made sexual remarks to K.P. For example, when discussing legal fees during an initial meeting, Kennedy said, “A cute girl like you,
The cell phone recordings made by K.P. were also admitted at the hearing. A recording from June 2, 2015, included a number of sexual comments by Kennedy that were interspersed with the discussion of K.P.’s case. For example, during the recorded conversation, immediately after K.P. expressed frustration with the legal system and concern that she was unable to take out a loan to pay for her legal fees, the following exchange occurred:
K.P: It’s only like -- I could ask for a $ 3,000 -- Like they couldn’t even give me a $3,000 loan. Like that is stupid.
Kennedy: Yeah. How old are -- Oh, (unintelligible).
K.P.: I make $3,000 in like a month, like -- not quite, but I’m pushing it.
Kennedy: Yeah.
K.P.: But it’s still --
Kennedy: What about keeping promises?
K.P.: Keeping promises? Well, that --
Kennedy: You promised you would do it. Then you won’t do it. You changed your mind.
K.P: No. Well --
Kennedy: You did too.
K.P.: Well, you told me, I mean if I can get the money. I’m all about that money. You know, kind of like you, right?
Kennedy: Yeah.
K.P.: All about that money.
Kennedy: It’s not all about money.
Kennedy: So we’re a no go -- we’re no go on the nap?
K.P.: On the nap?
Kennedy: You don’t want to do it now, do you?
K.P.: Well, how much money?
Kennedy: Buck a time. I want it to last a little bit.
K.P.: A buck a time. That’s not even worth it.
Kennedy: It is for me.
K.P.: For me, for you.
Kennedy: Quit (unintelligible) and quit being nervous.
K.P.: Your time -- Your time will be one minute.
Kennedy: I promise two.
K.P.: Or three?
Kennedy: Promise three zero. I promise 14 inches. Think about that when you’re thinking about this case.
K.P.: I won’t be able to think.
Kennedy: You know -- You know what we’re going to do.
K.P.: Yes.
A few minutes later, Kennedy made the following comment to K.P. after discussing his recent surgery:
So they went into the joint and pulled it away from the nerve. Now it just hurts like a son of a bitch all the time. So if I rub you with this hand, I can only use these two fingers. All right. Any questions?
In a different recorded attorney-client conversation between K.P. and Kennedy, the following exchange occurred:
Kennedy: And then I want you to do like you’re doing now.
K.P.: Be serious.
Kennedy: Yeah. You’re not smiling. You’re not acting goofy. You don’t have your tits sticking out and stuff like that. Not that I don’t like that, but not -- it’s not for court.
K.P.: No, it’s not for court.
Kennedy: No.
K.P.: I know. I think --
Kennedy: We’re talking about the rest of your life here.
K.P.: Yeah, I know. I’m talking about the rest of my life here, and my life is kind of on hold right now.
Kennedy: I called up about the massage, because I was representing some girls there too. And I says, [w]ell, what do I get for this massage? What do I get massaged? Whatever you want. I said [o]kay. How much? And the price went way up. But I suppose you’re just getting a hand job or head or something. I said, [n]o. I want to come over to your fucking apartment and wake you up. You give me a key. I’ll sneak in there, slip in bed with you.
K.P.: Mr. Kennedy.
Kennedy: You started it. You started it.
K.P.: I never said anything.
Kennedy: You did too.
K.P.: I don’t know what you’re talking about.
Kennedy: (Unintelligible)
K.P.: I don’t know what you’re talking about, but okay. Is that it then? Okay.
Kennedy: Yeah. We won’t do anything with this until we get like two or three weeks away from the hearing.
K.P.: Okay.
Kennedy: Then we have to start practicing.
K.P.: Okay.
Kennedy: Because I want to practice.
Not all conversations between K.P. and Kennedy were recorded. K.P. also acknowledged that when she retained Kennedy she signed a fee agreement, which provided that she could terminate Kennedy at any point and was entitled to the return of any monies that Kennedy had not earned. K.P. did not report Kennedy’s conduct to police until after she had entered a plea of guilty in her criminal case.
Kennedy also testified at the disciplinary hearing. Kennedy testified that he did not remember the recorded conversations that he had with K.P. because during that time he was taking prescription pain medication that affected his memory. Kennedy also stated that he did not remember what he had told police.
ANALYSIS
I.
It is the Director’s burden to prove by clear and convincing evidence that Kennedy violated the Rules of Professional Conduct. See In re Grigsby, 764 N.W.2d 54, 60 (Minn. 2009). Kennedy ordered a transcript of the referee’s hearing, preserving his right to
A.
The referee determined that Kennedy’s repeated unwelcome sexual comments harassed K.P. in violation of
It is professional misconduct to “harass a person on the basis of sex . . . in connection with a lawyer’s professional activities.”
We next turn to the question of whether Kennedy’s conduct was an attempt to violate the Rules of Professional Conduct. “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”
It is professional misconduct to “attempt to violate the Rules of Professional Conduct.”
Kennedy’s argument is both unpersuasive and obnoxious. K.P. credibly testified that she felt pressured to engage in sexual relations with Kennedy in order to secure a favorable result in her criminal case. K.P. was young, immature, embarrassed, and, as noted by the referee, “wholly without knowledge whatsoever of court proceedings or lawyers.” Against the backdrop of the enormous differences in age, experience, and knowledge between Kennedy and K.P., the referee’s findings that Kennedy sexually harassed K.P. and attempted to engage in sexual relations with her are not clearly erroneous.
Kennedy set the tone from the first meeting by stating that, because K.P. was “cute,” she should not have to pay for legal services, and by inquiring about her living arrangements and whether she lived alone. Thereafter, he requested to meet with K.P. after business hours at either her home or his office to receive payment. He admitted that his prior comments were sexual by apologizing for them when he met with K.P. at her place of employment. His conversations with K.P included a reference to a “nap,” the context of which reasonably implied sexual behavior, and a statement about the length of his penis. He also told K.P. that one of his prior clients had offered to perform oral sex in exchange for reduced legal fees. These conversations occurred while Kennedy was discussing the seriousness of K.P.’s crime and her unpaid legal fees, which she was struggling to pay. K.P. credibly testified that she felt so uncomfortable by the interactions that she contacted the police about Kennedy’s behavior. In contrast, the referee determined that Kennedy’s
B.
We next turn to the question of whether Kennedy’s communications with the Director and police violated the Rules of Professional Conduct. It is professional misconduct for a lawyer to “engage in conduct involving dishonesty . . . deceit, or misrepresentation.”
Kennedy argues that the referee’s findings are clearly erroneous because the record tended to show that Kennedy was on pain medication throughout 2015 due to a surgery and that Kennedy “should not be expected to recall” all the conversations he had with K.P. while taking medication. The referee’s reasoning for rejecting Kennedy’s testimony on the basis of credibility was robust, and we defer to the referee’s findings “when the referee’s findings rest on disputed testimony or in part on credibility, demeanor, and sincerity.” In re Lyons, 780 N.W.2d 629, 635 (Minn. 2010); see also In re Farley, 771 N.W.2d 857, 863
Because the factual finding that Kennedy knowingly made false statements to police and the Director in violation of
II.
We next consider the appropriate discipline to be imposed for Kennedy’s misconduct. The referee recommended that he be indefinitely suspended from the practice of law and ineligible to petition for reinstatement for a period of 2 years. The Director agrees with the referee’s recommendation. Kennedy suggests that if the court agrees with the referee’s findings regarding misconduct, a 30-day suspension would be appropriate.
When determining the appropriate discipline for attorney misconduct, we “place great weight on the referee’s disciplinary recommendation but retain ultimate
A.
Nature of the Misconduct
The nature of Kennedy’s misconduct includes sexual harassment and attempted sexual relations with a current client, as well as making false statements to the police and the Director. Each violation here independently warrants serious discipline.3
Kennedy’s sexual comments to K.P. during client meetings was harassment in violation of
The nature of the misconduct is particularly serious here because K.P. had retained Kennedy to defend her in a criminal prosecution. Even though K.P. was entitled by statute4 to a mandatory diversion for her first-time controlled-substance offense, and was in no immediate risk of incarceration, Kennedy repeatedly played on K.P.’s fears that “she was on trial for her life.”
Kennedy’s repeated false statements to police and the Director also warrant serious discipline. See In re Ruffenach, 486 N.W.2d 387, 391 (Minn. 1992) (“Honesty and integrity are chief among the virtues the public has a right to expect of lawyers. Any breach of that trust is misconduct of the highest order and warrants severe discipline.“).
We next consider the cumulative weight of Kennedy’s violations. When considering the cumulative weight of misconduct, we distinguish “a brief lapse in judgment or a single, isolated incident” from “multiple instances of misconduct occurring over a substantial amount of time.” In re Severson, 860 N.W.2d 658, 673 (Minn. 2015). And “the cumulative weight and severity of multiple disciplinary rule violations may compel severe discipline even when a single act standing alone would not have warranted such discipline.” In re Oberhauser, 679 N.W.2d 153, 160 (Minn. 2004). The varying types of violations, which include repeated sexual harassment and solicitation of a client, and multiple false statements to the Director and the police, weigh in favor of greater discipline. See In re Nwaneri, 896 N.W.2d 518, 525–26 (Minn. 2017) (stating that the attorney’s late filing and false affidavit were part of a single incident, but his lie to the investigator 72 days later was a separate instance of misconduct).
Harm to the Public
The third factor we consider is the harm to the public caused by Kennedy’s misconduct. In assessing harm to the public, we consider the number of persons harmed and the extent of the injuries. In re Voss, 830 N.W.2d 867, 878 (Minn. 2013). The referee noted that K.P. was “unsophisticated, naïve and completely inexperienced with the law” and that Kennedy took advantage of those qualities “in an attempt to attain his sexual desires.” At the time of Kennedy’s actions, K.P. felt as if she had “no way out” due to her fear that Kennedy’s behavior was typical of all lawyers and her desire to keep her criminal charge secret. As a result of Kennedy’s unwanted sexual suggestions, K.P. became more
Harm to the Legal Profession
The fourth factor we consider is the harm to the legal profession. Misconduct that “undermine[s] the public’s confidence in the ability of attorneys to abide by the rule of law” harms the legal profession. In re Brost, 850 N.W.2d 699, 704 (Minn. 2014). K.P. had no experience with the legal profession and, as a result of Kennedy’s repeated unwanted sexual harassment and attempts to exchange services for sexual favors, K.P. is now distrustful of other lawyers and the legal system.
The profession is also harmed by Kennedy’s false statements to police and the Director. Dishonest acts by lawyers violate the public’s right to trust in the integrity of the legal profession. Ruffenach, 486 N.W.2d at 391.
B.
In addition to evaluating the four factors, we consider both aggravating and mitigating factors to determine the appropriate discipline. In re Jones, 834 N.W.2d 671, 682 (Minn. 2013) (citing In re Rooney, 709 N.W.2d 263, 268 (Minn. 2006)). No mitigating factors were argued here and none exist. The referee found that Kennedy’s misconduct was aggravated by his disciplinary history, the fact that the misconduct occurred while he was on probation, his experience practicing law, and his lack of remorse. Although we consider Kennedy’s disciplinary history and current probationary status as aggravating factors, we do not rely on any of the remaining aggravating factors found by the referee in our assessment of the appropriate discipline. We expressly considered Kennedy’s
We turn next to considering whether Kennedy’s probationary status and disciplinary history are aggravating factors here. At the time of Kennedy’s misconduct, he was on probation for previous misconduct. Misconduct by an attorney while on disciplinary probation is an aggravating factor, regardless of whether the rule violations are the same or different. In re Kurzman, 871 N.W.2d 753, 758 (Minn. 2015). Kennedy’s probationary status at the time of his misconduct is therefore an aggravating factor that warrants significant discipline. See id.
We also consider Kennedy’s prior misconduct an aggravating factor because, after being discipline, an attorney is expected to show a “renewed commitment” to professional ethics. In re Milloy, 571 N.W.2d 39, 45–46 (Minn. 1997). We have imposed more severe sanctions on attorneys with a history of disciplinary action “to send a clear message that such repeated misconduct will not be tolerated.” Albrecht, 779 N.W.2d at 542; see also In re Rebeau, 787 N.W.2d 168, 176 (Minn. 2010) (indefinitely suspending an attorney for a
Additionally, Kennedy made false statements to the tribunal at his disciplinary hearing, selectively stating that he did not remember the conversations. Although Kennedy’s false statements in the proceedings before the referee were not charged as misconduct, they are an additional aggravating factor. Cf. In re Hulstrand, 910 N.W.2d 436, 444 (Minn. 2018) (observing that acts of noncooperation cannot be “double count[ed]” as both substantive misconduct and an aggravating factor, but that failure to cooperate in proceedings before the referee is an aggravating factor).
We therefore find Kennedy’s disciplinary and probationary history, as well as his false statements at his disciplinary hearing, to be aggravating factors.
C.
After considering the four factors, we next look to similar cases to “ensure that [the] disciplinary decision is consistent with prior sanctions.” Nathanson, 812 N.W.2d at 80.
We disbarred an attorney with a significant disciplinary history who engaged in sexual relations with a client over an extended period of time and pressured her for sex whenever she sought legal advice, practiced law while suspended, received payment for legal services while suspended, and made false statements to the Director’s office and the referee. Albrecht, 845 N.W.2d at 191. We noted that, after the client had communicated that she was no longer interested in engaging in sexual activity with Albrecht, Albrecht’s behavior of “pressuring his client for sexual favors every time she sought to discuss legal matters . . . exemplifie[d] the very inequality and exploitation of the lawyer’s role that
Kennedy abused his position of power and trust to exploit a client in an attempt to achieve his sexual desires. He then, while on probation, repeatedly made false statements to police and the Director about the conversations with K.P. His disciplinary history and probationary status warrant substantial discipline, and under these circumstances, we conclude that the referee’s recommended discipline, a 2-year suspension, is appropriate.
Accordingly, we order that:
- Respondent is indefinitely suspended from the practice of law, effective 14 days from the date of this opinion, and with no right to petition for reinstatement for 2 years from the effective date of the suspension.
- Respondent shall pay $900 in costs, pursuant to Rule 24(a), RLPR, and comply with the requirements of Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals).
If respondent seeks reinstatement, he must comply with the requirements of Rule 18(a)–(d), RLPR. Reinstatement is conditioned on successful completion of the written examination required for admission to the practice of law by the State Board of Law Examiners on the subject of professional responsibility and satisfaction of continuing legal education requirements. See Rule 18(e)–(f), RLPR.
Indefinitely suspended.