Was Attempt To Obtain Civil Settlement Unethical?

A suspension of at least 30 days was imposed by the Minnesota Supreme Court of an attorney who sought a settlement for a victim/witness in a criminal case.

The complainant in the criminal case was on probation. The defendant was a probation officer although he did not supervise the complainant.

He was accused of third degree criminal sexual conduct and misconduct as a public employee.

The court

We conclude there is evidence in the record to support the referee’s findings that Kennedy offered to have B.W. not testify against the defendant in the criminal case if he received a payment from the defendant. There are, of course, the three letters Kennedy wrote, the contents of which are not disputed. The first letter demands a settlement of B.W.’s civil claim for $300,000 and notes that a “dismissal, where she has a right to expungement” is “[t]he only good resolution for [the defendant].” The second letter makes an express connection between a settlement and the dismissal of the defendant’s criminal charges. It states that a settlement “could result in dismissal of the criminal complaint against [the defendant], with a right of expungement.” Having received no response to either of these letters, Kennedy sent a third letter in which he indicates for the first time what B.W. would do if his civil claim settled. The third letter states that if a settlement is reached, B.W. “may decide to ask the prosecutor to dismiss and he may decide to not testify against [the defendant]. In that event, she would not be convicted . . . .” It was not clearly erroneous for the referee to conclude that in these letters, B.W. is offering to not testify against the defendant in her criminal case in exchange for a cash payment as settlement of B.W.’s civil claim.

Justice Lillehaug dissented

Today the court disciplines an attorney for assisting his client, the alleged victim of a crime by a public employee, to negotiate a civil settlement during the pendency of a criminal case. I respectfully disagree with the majority’s conclusion that, by assisting his client, respondent Duane Kennedy engaged in conduct prejudicial to the administration of justice under Minn. R. Prof. Conduct 8.4(a) and 8.4(d). The referee’s theory of unethical behavior, advanced by the Director, is without sufficient factual support. Perhaps realizing this, the majority constructs and applies its own theory, but that theory is similarly without sufficient support.

Justice Anderson joined the dissent. (Mike Frisch)