In re MacDonald, A16-1282

• Decision Date: 17 January 2018
• Docket Number: A16-1282
• Citation: 906 N.W.2d 238
• Parties: IN RE Petition for DISCIPLINARY ACTION AGAINST Michelle Lowney MACDONALD, a Minnesota Attorney, Registration No. 0182370.
• Court: Minnesota Supreme Court

906 N.W.2d 238

IN RE Petition for DISCIPLINARY ACTION AGAINST Michelle Lowney MACDONALD, a Minnesota Attorney, Registration No. 0182370.

A16-1282

Supreme Court of Minnesota.

Filed: January 17, 2018

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

Paul Engh, Minneapolis, Minnesota, for respondent attorney.

OPINION

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.

FACTS

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.

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