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In re Disciplinary Action

Supreme Court of Minnesota

June 10, 2015

In re Petition for Disciplinary Action
v.
Duane A. Kennedy, a Minnesota Attorney, Registration No. 55128

Page 343

Original Jurisdiction.

SYLLABUS

The referee's determination that respondent attorney engaged in professional misconduct by offering to have his client, a complainant in a criminal sexual conduct case, act more favorably for the defendant as a witness in the defendant's criminal case if the defendant paid respondent's client to settle his civil claims against her, is not clearly erroneous. Based on this misconduct and the aggravating factors present, the appropriate discipline is a suspension for a minimum of 30 days.

Martin A. Cole, Director, Kevin T. Slator, Senior Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

Eric Lawrence Newmark, Jill A. Brisbois, Minneapolis, Minnesota, for respondent.

Dissenting, Lillehaug, Page, and Anderson, JJ.

OPINION

Page 344

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed a petition for disciplinary action against respondent Duane A. Kennedy, alleging that Kennedy committed professional misconduct by stating in a letter that his client, a complainant in a criminal sexual conduct case, would not testify against the defendant in her criminal case if the defendant settled the complainant's civil claim for $300,000. Following an evidentiary hearing, the referee found that Kennedy violated Minn. R. Prof. Conduct 8.4(a) and 8.4(d) and recommended a suspension for a minimum of 90 days. We conclude that the referee's findings and conclusions are not clearly erroneous but that a suspension for a minimum of 30 days is the appropriate discipline for this misconduct.

Kennedy has been licensed to practice in Minnesota since 1975. He is a solo practitioner who handles both criminal defense and personal injury matters. On June 19, 2013, we publicly reprimanded Kennedy and placed him on 2 years of probation for representing both a defendant and a witness in the same matter and failing to inform another client of a settlement offer unless the client paid outstanding attorney fees that were due Kennedy. In re Kennedy, 831 N.W.2d 912, 912 (Minn. 2013) (order).

The Director filed the instant petition for disciplinary action while Kennedy was on disciplinary probation. The misconduct alleged in the petition relates to three letters Kennedy sent on behalf of his client, B.W., approximately 1 month after Kennedy was placed on disciplinary probation. Kennedy filed a timely answer to the petition, and we appointed a referee.

Following an evidentiary hearing, the referee issued findings of fact, conclusions, and a recommendation for discipline. The referee made the following findings and conclusions.

In April 2013, S.P. (" the defendant" ) was charged with third-degree criminal sexual conduct and misconduct of a public employee.[1] The criminal complaint alleged that while the defendant was a juvenile

Page 345

probation officer, she had a sexual relationship with B.W., a person who was on probation in Minnesota. The defendant was not B.W.'s probation officer, but the defendant was aware that B.W. was on probation. The defendant retained C.C. (" defense counsel" ) as her criminal defense attorney. B.W. retained Kennedy to pursue a civil claim against the defendant.

On July 12, 2013, Kennedy faxed a letter to defense counsel, introducing himself as B.W.'s attorney. Kennedy stated that he only represented B.W. " for this civil [claim]." Kennedy then wrote: " The only good resolution for [the defendant] is a dismissal, where she has a right to expungement. I demand settlement for $300,000.00. If [the defendant] is interested, I suggest we discuss in person, and move promptly." Defense counsel did not respond to this letter.

On July 17, 2013, Kennedy faxed a second letter to defense counsel. Kennedy referenced the first letter's offer and wrote: " It could result in dismissal of the criminal complaint against [the defendant], with a right of expungement. If she is interested, please call and we can meet to discuss." Defense counsel did not respond to this letter. He did, however, file a complaint with the Director related to the two letters.

On July 29, 2013, before Kennedy was aware that the Director had received defense counsel's complaint, he faxed a third letter to defense counsel. Kennedy wrote: " If [B.W.] can settle with [the defendant], he may decide to ask the prosecutor to dismiss, and he may decide to not testify against her. In that event, she would not be convicted and could acquire expungement." Again, defense counsel did not respond to this letter.

Kennedy testified that at the time he faxed the letters, he and B.W. had agreed to threaten a civil lawsuit against the defendant alleging claims of assault and battery. Kennedy had told B.W. that he would not actually file such a lawsuit against the defendant. According to Kennedy, the " theme" of the letters was " [s]ettle a civil lawsuit, and I will essentially act more favorably for you as a witness in the criminal case."

Ultimately, the defendant pleaded guilty to misconduct of a public employee, and the State dismissed the criminal sexual conduct charge. The prosecutor who handled the criminal case testified that she received Kennedy's letters from defense counsel pursuant to " Rule 9 as a continuing disclosure . . . indicating he intended to use them at trial." The prosecutor testified that the letters " had a chilling effect" on the criminal case and she felt that she could not move forward with the sexual assault charge because B.W.'s credibility had been " completely gutted."

The referee found that Kennedy's letters " were intended to convey an offer from [Kennedy] that in exchange for a money payment from [the defendant], [B.W.] would decide not to testify against [the defendant] in the criminal case." The referee also found that the letters substantially influenced the prosecutor's decision to offer a plea bargain because they " alerted defense counsel . . . that [B.W.] may be an uncooperative witness and may have been willing to barter his testimony in exchange for a price." The referee however, determined that the letters did not " constitute the primary or compelling reason" for the prosecutor's decision.[2]

Page 346

Nevertheless, the referee found that " prejudice to the criminal prosecution was intended by" Kennedy " and actually resulted from his letters."

The referee concluded that respondent violated Minn. R. Prof. Conduct. 8.4(a) and 8.4(d). The referee found aggravating factors based on Kennedy's commission of the current misconduct while on disciplinary probation; Kennedy's prior discipline; Kennedy's lack of remorse and insistence that he had done nothing wrong; and Kennedy's substantial experience in the practice of law. The referee recommended that Kennedy be suspended for a minimum of 90 days and that he be required to petition for reinstatement.

Kennedy challenges the referee's findings that by sending the three letters to defense counsel, he intended to prejudice the defendant's criminal prosecution, claiming his only intent was to settle a valid claim B.W. had against the defendant. He further challenges the referee's conclusions that by attempting to settle B.W.'s civil claim against the defendant, he violated Minn. R. Prof. Conduct 8.4(d) or 8.4(a). Finally, Kennedy argues the referee's recommended discipline is too severe.

I.

When a party to a disciplinary proceeding orders a transcript, " the referee's findings and conclusions are not conclusive." In re Paul, 809 N.W.2d 693, 702 (Minn. 2012). However, we give " great deference to the referee's findings of fact and will not reverse those findings 'if they have evidentiary support in the record and are not clearly erroneous.'" In re Coleman, 793 N.W.2d 296, 303 (Minn. 2011) (quoting In re Varriano, 755 N.W.2d 282, 288 (Minn. 2008)). We " will review the interpretation of the" Minnesota Rules of Professional Conduct " de novo," but will " review the application of [those rules] to the facts of the case for clear error." In re Aitken, 787 N.W.2d 152, 158 (Minn. 2010).

II.

We first address Kennedy's challenges to the referee's findings and conclusions that by sending the three letters, Kennedy violated Minn. R. Prof. Conduct 8.4(a)[3] and 8.4(d).[4] Kennedy argues that the referee's findings about the terms of the settlement offer that he made to the defendant are clearly erroneous. The referee found that B.W. " may have been willing to barter his testimony in exchange for a price" and that " in exchange for a money payment from [the defendant], [B.W.] would decide not to testify against [the defendant] in the criminal case."

Kennedy argues that these findings are not supported by the record because he testified that the offer was merely that B.W. would ask the prosecutor to dismiss the charges if a settlement could be reached and that he specifically advised B.W. that while he could try to assert his Fifth Amendment privilege against self-incrimination at the defendant's trial, he would likely be unsuccessful and would be required to testify or face contempt

Page 347

charges. The referee, however, rejected this testimony as not credible. The referee's findings are not clearly erroneous simply because he chose to reject some of Kennedy's testimony. In re Voss, 830 N.W.2d 867, 874-75 (Minn. 2013) (stating that the court defers to the referee's findings when they " are based on a credibility determination" and that a referee is free to reject the testimony of an attorney as " not credible" ); accord In re Waite, 782 N.W.2d 820, 824 (Minn. 2010) (" The referee was free to reject Waite's testimony as lacking credibility and did." (citation omitted)).

Kennedy also argues that the referee clearly erred in finding that he intended to prejudice the administration of justice. Rule 8.4(d), however, does not contain an intent requirement. See In re Grigsby, 815 N.W.2d 836, 844 (Minn. 2012); Waite, 782 N.W.2d at 824. Whether Kennedy intended to cause prejudice to the ...


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