In re Petition for Disciplinary Action against Duane A. Kennedy, a Minnesota Attorney, Registration No. 0055128.
R. STRAS ASSOCIATE JUSTICE.
Director of the Office of Lawyers Professional Responsibility
filed a petition for disciplinary action alleging that, while
on disciplinary probation, respondent Duane A. Kennedy
committed professional misconduct warranting public
discipline-namely, failing to clarify the basis and rate of a
fee; failing to deposit unearned client funds into a trust
account; failing to maintain the required trust-account books
and records; and improperly sharing fees with a non-lawyer.
See Minn. R. Prof. Conduct 1.5(b), 1.15(c)(3) and
(5), 1.15(h), 5.4(a), and Appendix 1 thereto; see also In
re Kennedy», 875 N.W.2d 833, 833-34 (Minn. 2016)
(order) (reinstating respondent and placing him on
disciplinary probation until July 25, 2019, subject to
certain terms and conditions).
parties filed a stipulation for discipline. In it, respondent
waives his rights under Rule 14, Rules on Lawyers
Professional Responsibility (RLPR), and unconditionally
admits the allegations in the petition. The parties recommend
that the appropriate discipline is a public reprimand and
that we add a condition to respondent's current probation
requiring him to provide his trust-account books and records
to the Director. Respondent acknowledges in the stipulation
that, "based upon these admissions, this Court may
impose any of the sanctions set forth in Rule 15(a)(1)-(9),
RLPR, including making any disposition it deems
appropriate" and that the Director had not made
"any representations as to the sanctions the Court
the fourth time respondent has been publicly disciplined
since June 2013. We publicly reprimanded respondent in June
2013, and we suspended him for a minimum of 30 days in June
2015 and January 2016. Respondent has been on disciplinary
probation since June 2013. This is the third time respondent
has violated the terms of his disciplinary probation by
committing additional acts of professional misconduct.
consider the attorney's disciplinary history because,
after being disciplined, an attorney is expected to show a
'renewed commitment' to ethical behavior."
In re Coleman, 793 N.W.2d 296, 308 (Minn. 2011)
(quoting In re Milloy, 571 N.W.2d 39, 45-46 (Minn.
1997)). "The fact that the current misconduct occurred
while [respondent] was on probation is also a significant
aggravating factor." In re Graham, 609 N.W.2d
894, 897 (Minn. 2000). Given respondent's disciplinary
history and repeated violations of the conditions of his
disciplinary probation, a public reprimand and modification
of the terms of respondent's probation are insufficient
to adequately protect the public and the judicial system and
to deter future misconduct by respondent and other attorneys.
See id (explaining the purposes of disciplinary
sanctions for professional misconduct).
result, we reject the parties' recommended discipline. We
conclude that the appropriate disposition is a suspension for
a minimum of 30 days, followed by supervised probation for 2
upon all the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
Respondent Duane A. Kennedy is suspended from the practice of
law for a minimum of 30 days, effective 14 days from the date
of this order.
Respondent shall comply with Rule 26, RLPR (requiring notice
of suspension to clients, opposing counsel, and tribunals).
Respondent shall pay $900 in costs under Rule 24, 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 he is current in continuing legal education
requirements, has complied with Rules 24 and 26, RLPR, and
has complied with any other conditions for reinstatement
imposed by the court.
Within 1 year of the date of this order, respondent shall
file with the Clerk of the Appellate Courts and serve upon
the Director proof of 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. Failure to timely file the
required documentation shall result in automatic
re-suspension, as provided in Rule 18(eX3), RLPR.
reinstatement to the practice of law, respondent will be
placed on disciplinary probation for 2 years, subject to the
(a) Respondent shall cooperate fully with the Director's
Office in its efforts to monitor compliance with 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 die
Director's attention. Upon the Director's request,