Unsupervised Probation Questioned

The Minnesota Supreme Court accepted a proposed minimum 60-day suspension and unsupervised probation

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent William H. Henney has committed professional misconduct warranting public discipline—namely, representing clients with conflicts of interest in one matter; entering into a business transaction without providing required disclosure under the rules; and making knowingly false and misleading statements to the court, opposing counsel, and the Director. See Minn. R. Prof. Conduct 1.7(a)(1), 1.7(a)(2), 1.8(a), 3.3(a), 4.1, 8.1(a), and 8.4(c).

Respondent and the Director have entered into a stipulation for discipline. In it, respondent waives his procedural rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), and unconditionally admits the allegations of the petition. The parties jointly recommend that the appropriate discipline is a minimum 60-day suspension followed by two years of unsupervised probation.

McKEIG, Justice (dissenting).

Because William H. Henney’s long history of discipline and continued misconduct warrant a more serious penalty than a 60-day suspension and two years of unsupervised probation, I respectfully dissent.

Henney was first disciplined, by private admonition, in 1986, just four years after he was admitted to practice law in Minnesota. Since then, Henney has received five additional admonitions, dating from 1991 until 2014. Henney’s present misconduct is an escalation of his prior actions. Henney represented two clients with adverse interests to one another for over a year after it was clear that he could not competently and diligently represent both. During the same time, he obtained an ownership interest in land directly adverse to one of these clients without informing that client of his interest. When the situation eventually turned litigious, see Mittelstaedt v. Henney, 969 N.W.2d 634 (Minn. 2022), Henney falsely represented to the court that he did not know the owner of the  client-company at the time these transactions occurred. He also represented the owner of the client-company in his divorce proceedings. In this representation, Henney falsely told the client that he had filed an answer in the dissolution proceedings and that the $500 the client had paid him was for a filing a fee. When confronted by the Office of Lawyers Professional Responsibility, he made false and misleading statements about his involvement in the divorce proceedings to try to minimize his responsibility.

Not only did Henney commit misconduct that included more than one conflict of interest, but he also engaged in dishonest conduct, including to the courts. I am willing to accept the 60-day suspension as stipulated by the parties. I disagree, however, that two years of unsupervised probation is appropriate. I would impose two years of supervised, rather than unsupervised, probation. Over his four decades-long career, Henney has time and time again shown a lack of respect for the ethical obligations that come with the legal profession. His misconduct in this instance is unacceptable. Henney is not new to the practice of law; he knew exactly what he was doing when he continued to represent both clients after it was clear there was a nonwaivable conflict of interest and when he made false statements in subsequent litigation. What Henney has already shown us is that he chooses to follow his own rules without regard for what is proper or appropriate under the rules that govern our profession. Henney has had over 40 years to prove he can comply with the Rules of Professional Conduct. His six previous admonitions and current suspension show that he cannot be trusted to do so on his own. Henney should be subject to more oversight than will be provided by his period of unsupervised probation

Because I would impose a 60-day suspension and two years of supervised probation, I dissent.

THISSEN, Justice (dissenting).

I join in the dissent of Justice McKeig.

(Mike Frisch)