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In re Petition for Disciplinary Action against MacDonald

Supreme Court of Minnesota

January 17, 2018

In re Petition for Disciplinary Action against Michelle Lowney MacDonald, a Minnesota Attorney, Registration No. 0182370.

         Original Jurisdiction Office of Appellate Courts

          Susan M. Humiston, Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner.

          Paul Engh, Minneapolis, Minnesota, for respondent attorney.

          Concurring in part and dissenting in part, McKeig, J. Took no part, Lillehaug, Hudson, and Chutich, JJ. Dietzen, Christopher J., Acting Justice [*]


         1. 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.

         2. 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; improperly used subpoenas; knowingly disobeyed a court rule and failed to follow a scheduling order; and engaged in disruptive courtroom conduct, including behavior resulting in her arrest.


          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 Minnesota 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.


         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.

          MacDonald began representing S.G. in 2013, as her fourth attorney of record, in a family-law matter. Among her first actions, MacDonald filed a motion challenging the constitutionality of Minnesota's family-law statutes in response to one of the court's orders. MacDonald's motion relied exclusively on S.G.'s rendition of the facts-specifically, that the order was the result of an ex parte communication between the district judge and opposing counsel. It turns out, however, that the district court entered the order by mutual agreement of the parties' attorneys. Indeed, S.G.'s attorney at the time even drafted the order. The court denied MacDonald's motion and explained that it was predicated upon an inaccurate factual assumption.

         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 Minn. R. Civ. P. 45.03(a) ("A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena."). MacDonald was personally sanctioned in the amount of $6, 202.50 for her conduct. See Minn. R. Civ.P. 45.03(d) (providing for "reasonable compensation for the time and expense involved in preparing for and giving such testimony or producing such documents").

         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 Minn. R. Prof. Conduct 3.1, [1] 3.4(c), [2] 4.4(a), [3] and 8.4(d).[4]

         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 Minn. R. Prof. Conduct 3.5(h).[5]

          On the day that S.G.'s trial was set to begin, MacDonald filed a civil-rights lawsuit in federal court on S.G.'s behalf against the district judge personally, not in his official capacity. MacDonald then moved for the judge's recusal from the case based on the pending federal lawsuit against him. The judge denied the motion, at which point MacDonald stated, "[a]nd you are telling me that you can be impartial in this trial, which you haven't done since day one." The referee found that this statement violated Minn. R. Prof. Conduct 8.2(a)[6] and 8.4(d), because it was made with reckless disregard for the truth.

         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 Minn. R. Prof. Conduct 1.1, [7] and that her repeated interruptions violated Minn. R. Prof. Conduct 3.5(h).

         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 reminded her that she knew not to take pictures in the courtroom. See Minn. Gen. R. Prac. 4.01 ("[N]o pictures . . . shall be taken in any courtroom . . . during a trial . . . ." (emphasis added)); Order Regarding Cameras and Other Recording Equipment in Court Facilities (Dakota Cty. Dist. Ct. July 1, 2005) (providing, in a standing district-court order adopted "pursuant to Rule 4 of the General Rules of Practice, " that "[n]o pictures . . . shall be taken in any courtroom . . . ." (emphasis added)).

         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]

         The deputies asked MacDonald to remove her jewelry, glasses, and shoes, and to submit to a pat-down search. The deputies then placed MacDonald in a holding cell. When the time came for her to return to the courtroom, MacDonald refused to stand up or walk to the courtroom on her own. The deputies therefore placed her in a wheelchair and handcuffed her hands to a belt that they had secured around her waist to bring her to the courtroom. Video footage of the incident shows that the deputies attempted to return MacDonald's shoes, but she refused to put them on.

         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 Minn. R. Prof. Conduct 1.1, 3.4(c), 3.5(h), and 8.4(d). The referee also concluded that MacDonald's separate failure to perfect an appeal in S.G.'s case, by neglecting to serve the notice of appeal on the guardian ad litem in a timely fashion, violated Minn. R. Prof. Conduct 1.1.

         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 Minn. R. Prof. Conduct 3.1, 8.2(a), and 8.4(d) by making recklessly false allegations against the judge that no reasonable attorney would have made based on the evidence available.

         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 Minn. R. Prof. Conduct 8.2(a) and 8.4(d).

         Although the petition for disciplinary action focused primarily on MacDonald's representation of S.G., it also alleged that MacDonald acted unethically in her representation of J.D. in a separate lawsuit. MacDonald, who was J.D.'s third attorney of record, defied the court's scheduling order by submitting trial exhibits 11 days late and failing to file proposed findings of fact and conclusions of law. MacDonald has admitted that she did not fully comply with the court's scheduling order.

         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 order violated Minn. R. Prof. Conduct 3.4(c) and 8.4(d). The referee further concluded that MacDonald's recurring disruptions violated Rule 3.5(h).

         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 Minn. R. Prof. Conduct 1.1, 3.1, 3.4(c), 3.5(h), 4.4(a), 8.2(a), and 8.4(d). The referee recommended a 60-day suspension followed by 2 years of probation, including a requirement that MacDonald undergo a mental-health evaluation as a condition of her probation.


         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).


         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 the referee's findings that MacDonald herself was late to court and acted unreasonably in failing to explore other options before pursuing the subpoenas.

         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 and the federal district court's order dismissing MacDonald's lawsuit. Paul, 809 N.W.2d at 702. Accordingly, even if there is some contrary evidence in the record on some of these points, in light of the record as a whole, we cannot conclude that the referee's findings were clearly erroneous.


         Having upheld the referee's findings, we now 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 Minn. Gen. R. Prac. 4.01 and a standing district-court order by taking photographs in the courtroom. She also raises two general defenses, good-faith reliance and free-speech immunity, which she says excuse her false statements and filings.


         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, " Minn. Gen. R. Prac. 4.01, the standing order is broader and appears to ban an individual from taking photographs at any time. According to MacDonald, these two rules conflict, and based on our authority to regulate practice within the district courts, the conflicting standing order must yield to the statewide General Rule of Practice.

         The conflict that MacDonald identifies does not exist, either as a factual or legal matter. Rather than picking one rule over the other, as MacDonald now argues, the referee applied both rules and concluded that "[t]he Director has proven by clear and convincing evidence that [MacDonald's] conduct in taking pictures in violation of Court rule and District Court Order violated Rule 3.4(c) (MRPC) and Rule 8.4(d) (MRPC)." (Emphasis added.) Factually, therefore, the referee's conclusion does not suggest that the local standing order preempts a statewide general rule of practice.

         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, General Rule of Practice 4.01, prohibits taking photographs "in any courtroom . . . during a trial" and the other, the Dakota County standing order, expands a situational prohibition into one of across-the-board applicability. Neither rule, however, affirmatively allowed MacDonald to take photographs in the courtroom, which is the only way that MacDonald could have established an actual conflict between the two rules. Accordingly, because it is undisputed that MacDonald took photographs in the courtroom, we conclude that the referee did not err in concluding that MacDonald's conduct violated the Dakota County standing order.[10]


         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 good faith, even if they turned out not to be true. To be sure, an attorney "has an obligation to present the client's case with persuasive force" and "is usually not required to have personal knowledge of matters asserted" in "pleadings and other documents prepared for litigation." Minn. R. Prof. Conduct 3.3, cmts. 1, 3.

         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." Minn. R. Prof. Conduct 1.1. Nor did they conflict with her duty to ensure that "the allegations and other factual contentions [in her litigation documents] ha[d] evidentiary support." Minn. R. Civ. P. 11.02(c). In fact, contrary to MacDonald's position, the Minnesota Rules of Professional Conduct specifically recognize an attorney's obligation to exercise reasonable care before making claims during the course of litigation, emphasizing that competency "includes inquiry into . . . the factual and legal elements of the problem" and that ...

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