More Than Banter

The Minnesota Supreme Court has imposed an indefinite suspension of an attorney for at least two years

The petition alleged that Kennedy violated Minn. R. Prof. Conduct 8.1(a), 8.4(a), 8.4(c), 8.4(d), and 8.4(g), by bartering with his client for sexual favors and making false statements to police and to the Director about his misconduct with knowledge that those statements were false. The supplementary petition alleged that Kennedy violated Minn. R. Prof. Conduct 1.15 and Appendix 1 by failing to provide checkbook registers to the Director as required.

The attorney was admitted in 1976

Kennedy’s disciplinary history includes a public reprimand, multiple suspensions, and multiple periods of probation. Some of Kennedy’s past misconduct has included improper communication with clients. Kennedy has violated the probation conditions each time he was placed on probation.

While on probation, Kennedy was retained by 22-year-old K.P. in April 2015. K.P. was charged with fifth-degree possession of a controlled substance (three Adderall pills). Outside of a single speeding ticket, K.P. had no prior involvement with the criminal justice system. K.P. was embarrassed and ashamed that she was charged with a crime and wanted to avoid public attention.

K.P. owed owed a $4,700 balance of an $11,500 fee but

Shortly after retaining Kennedy, K.P. told others that she was uncomfortable with Kennedy. K.P. recorded conversations with Kennedy using her cell phone during two meetings in June 2015. K.P. met with police in September and gave them her cell phone to retrieve those conversations. Police met with Kennedy regarding K.P.’s claim that Kennedy had attempted to obtain sexual favors from her in exchange for payment of legal services. Kennedy denied the allegation. He was not charged with a crime arising out of his representation of K.P.

The Director subsequently interviewed Kennedy. Kennedy denied engaging in any sexual conversations with K.P., stating that “none of that happened.” When asked if he was being truthful, Kennedy responded that he was being truthful.

At the disciplinary hearing

At Kennedy’s disciplinary hearing, K.P. testified that, throughout their attorney client relationship, Kennedy had repeatedly made sexual remarks to K.P. For example, when discussing legal fees during an initial meeting, Kennedy said, “A cute girl like you,  you should not have to pay anything, right?” In addition to comments related to K.P.’s appearance, Kennedy asked where K.P. lived, the location of her bedroom in her home, and whether she lived with other people. Kennedy also requested to come to K.P.’s home after business hours, or alternatively, proposed that she come to his office after business hours to make payments on her attorney fee obligations. K.P. testified that she believed his comments and suggestions were an effort by Kennedy to obtain sexual favors as payment for her outstanding bill for legal services.

The cell phone recordings made by K.P. were also admitted at the hearing. A recording from June 2, 2015, included a number of sexual comments by Kennedy that were interspersed with the discussion of K.P.’s case.

E.g.

I promise 14 inches. Think about that when you’re thinking about this case…

Kennedy: And then I want you to do like you’re doing now.
K.P.: Be serious.
Kennedy: Yeah. You’re not smiling. You’re not acting goofy. You don’t have your tits sticking out and stuff like that. Not that I don’t like that, but not — it’s not for court…

In the same meeting, Kennedy also told K.P. that a former client who worked at a hair salon had offered him oral sex for legal services in a criminal case

The court

The referee determined that Kennedy’s repeated unwelcome sexual comments harassed K.P. in violation of Rule 8.4(g). The referee also found that Kennedy’s conduct was motivated by an attempt to have sexual relations with K.P. and that this conduct violated Rule 8.4(a), which prohibits lawyers from “attempt[ing] to violate the Rules of Professional Conduct.” Kennedy argues that his comments to K.P. were the product of consensual sexual banter, and therefore he did not violate the Minnesota Rules of Professional Conduct. We disagree.

…During client meetings with K.P., Kennedy made comments related to K.P.’s appearance, such as whether or not her breasts were “sticking out,” and stating that she was “a cute girl.” Throughout the span of their professional meetings, Kennedy made clear that she was charged with a serious crime. When discussing her payments of attorney fees, he repeatedly tied those conversations to sexual activity by asking to pick up her payments owed at her home after business hours, by discussing other clients offering to pay him with sexual favors, and by inquiring about a “nap.” Others observed the effect of Kennedy’s behavior on K.P. and noticed her discomfort. K.P. was sufficiently concerned about Kennedy’s behavior that she recorded conversations with Kennedy and she went brought those recordings to the police. Under these circumstances, we find that the referee did not clearly err by concluding that this conduct was not mere consensual banter, but rather harassment, and therefore Kennedy’s conduct violated Rule 8.4(g).

The court upheld the referee’s conclusion that the attorney was attempting to violate the sex with client prohibition.

Sanction

Kennedy abused his position of power and trust to exploit a client in an attempt to achieve his sexual desires. He then, while on probation, repeatedly made false statements to police and the Director about the conversations with K.P. His disciplinary history and probationary status warrant substantial discipline, and under these circumstances, we conclude that the referee’s recommended discipline, a 2-year suspension, is appropriate.

(Mike Frisch)