Suspension – Worthy

The Minnesota Supreme Court rejected a stipulation of reprimand and suspended an attorney.

The 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.

The parties agreed on sanction

The 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.

But the court saw it differently

This is 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.

“We 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).

As a 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 years.

 There are several provisions for supervision on reinstatement. (Mike Frisch)