In re MacDonald

• Decision Date: 30 June 2021
• Docket Number: A20-0473
• Parties: IN RE Petition for DISCIPLINARY ACTION AGAINST Michelle Lowney MACDONALD, a Minnesota Attorney, Registration No. 0182370
• Court: Minnesota Supreme Court

962 N.W.2d 451

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

A20-0473

Supreme Court of Minnesota.

Filed: June 30, 2021

Rehearing Denied August 12, 2021

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

Bobby Joe Champion, Minneapolis, Minnesota, for respondent.

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. We appointed a referee. After holding an evidentiary hearing, the referee determined that MacDonald's conduct violated several rules of professional conduct. The referee recommended that we impose 1 year of probation. We conclude that the referee's findings that MacDonald violated the rules of professional conduct are not clearly erroneous and that the referee did not clearly err by rejecting MacDonald's laches defense because she failed to show prejudice. We further conclude that MacDonald's false statements impugning the integrity of a judge with knowing or reckless disregard for the truth are not protected by the First Amendment. Finally, because of the repeated attorney misconduct, we conclude that an indefinite suspension, with no right to petition for reinstatement for 4 months, is the appropriate discipline.

FACTS

MacDonald was admitted to the practice of law in Minnesota in 1987. In 2012, MacDonald was admonished for trust-account violations and failing to cooperate with the Director's investigation. In January 2018, we suspended MacDonald for 60 days for, among other misconduct, making false statements about the integrity of a judge with reckless disregard for the truth. In re MacDonald , 906 N.W.2d 238, 240, 241–43 (Minn. 2018). MacDonald's false statements arose from her representation of S.G., a client in a family law matter for whom MacDonald was the fourth attorney of record. Id. at 240. We reinstated MacDonald and placed her on probation for 2 years in March 2018. In re MacDonald , 909 N.W.2d 342, 342 (Minn. 2018) (order). One of the conditions of MacDonald's probation was that she abide by the Minnesota Rules of Professional Conduct. Id.

The current petition for disciplinary action arises from MacDonald's representation of R.P. and her statements during a radio interview. On May 21, 2018, R.P. initially consulted with MacDonald about potential personal injury litigation. MacDonald offered to evaluate the merits of R.P.’s personal injury claim for a flat fee of $500.

On June 5, 2018, R.P. returned to MacDonald's office to hire her firm to review the documents that he had provided. MacDonald introduced R.P. to K.P., the attorney who would review his case. R.P. signed a retainer agreement that authorized MacDonald's firm to "[r]eview data provided for" a possible personal injury case for a flat fee of $500, with representation to end "July 1 when review [is] complete." The agreement was signed by MacDonald and K.P., both purportedly on behalf of the firm, and R.P. paid the $500 fee. But MacDonald did not inform R.P. that K.P. was neither an employee nor member of her firm or that the fee would be split between K.P. and herself. MacDonald also did not obtain R.P.’s written consent to the fee-sharing arrangement, as required by Minn. R. Prof. Conduct 1.5(e)(2). After reviewing R.P.’s case, MacDonald declined to provide further representation.

In 2018, MacDonald also sought election to the Minnesota Supreme Court. On October 3, 2018—after she was reinstated to the practice of law but while she was still on supervised probation—MacDonald was interviewed on WCCO radio regarding her candidacy. At the outset of the program, MacDonald told the interviewer that she was speaking out "because courts need reform." She explained, "[C]ourt orders are damaging people and families.... [T]here's a severe failure to follow the rule of law, to follow our constitution and uphold it and, quite frankly, our civil rights are being violated by courts all over the state." The interviewer asked MacDonald if a case involving S.G., a former client of MacDonald, was "one of the cases that you are referring to of civil rights being violated." MacDonald replied that it was.

MacDonald asserted that the judge in the S.G. case violated the rights of both parents when he ordered that they "have no contact with their children whatsoever." She further stated, "[T]he judge did that in September of 2012 without any hearing, without any process , and in two hours ordered her, she was already divorced, to leave her home, leave her children ... and ordered her to not return or else she would be arrested." (Emphasis added.) MacDonald testified at the disciplinary hearing that when she said "without any process," she meant "without any due process" and was referring to the judge's September 7, 2012 order. But she admitted that the order was issued after an emergency telephone conference in which then-counsel for both parents and a guardian ad litem participated. Further, that order was entered by mutual agreement of the parties and was even drafted by S.G.’s attorney at that time.

Later, the interviewer brought up the disappearance of S.G.’s two daughters during the custody litigation and S.G.’s conviction arising from that disappearance. The interviewer asked MacDonald when she had learned that the girls were missing and what S.G. had told her. MacDonald stated that anything S.G. may have told her was protected by attorney-client privilege and that, in any event, she never believed that what S.G. did was a crime. MacDonald continued, "[T]he crime was with the court when the judge did an order that neither parent could contact their kids. That's when the deprivation happened." (Emphasis added.)

Finally, at the end of the interview, MacDonald was asked whether there was anything she wanted voters to know before the election. She replied, "I'm running for Minnesota Supreme Court because time and time again as one attorney representing thousands of people across the state I've witnessed an unprecedented display of courts abusing their discretion and authority, damaging people and families.... [S.G.] is a, a example of that."

The Director filed a petition for disciplinary action against MacDonald in March 2020. Following an evidentiary hearing, the referee issued findings consistent with the facts described above. The referee concluded that, as to the R.P. matter, the Director had proven by clear and convincing evidence that MacDonald had failed to comply with the requirements of a fee-sharing representation, in violation of Minn. R. Prof. Conduct 1.5(e)(2).¹ As to the WCCO interview, she found that MacDonald's statements denigrating the judge in the S.G. case were "demonstrably false" because those statements repeated the false statements for which MacDonald was disciplined in 2018 and unfairly undermined public confidence in the administration of justice. The referee also found that, as a whole, MacDonald's statements about the judicial system "foster disrespect for the system." She concluded that the Director had proven by clear and convincing evidence that MacDonald's statements attacking the integrity of the judge and the Minnesota judicial system violated Minn. R. Prof. Conduct 8.2(a)² and 8.4(d).³ The referee recommended 1 year of additional supervised probation.⁴

ANALYSIS

In a disciplinary proceeding, the Director must prove by clear and convincing evidence that an attorney violated the Rules of Professional Conduct. In re Grigsby , 764 N.W.2d 54, 60 (Minn. 2009). Because MacDonald ordered a transcript of the hearing before the referee, she may challenge the referee's findings of fact and conclusions. Id. ; see Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR). We give the referee's findings and conclusions "great deference" and will not reverse those findings or conclusions when "they have evidentiary support in the record and are not clearly erroneous." Grigsby , 764 N.W.2d at 60 (citations omitted) (internal quotation marks omitted); see also In re Walsh , 872 N.W.2d 741, 747 (Minn. 2015) (providing that when a transcript is ordered, "we review a referee's conclusion that an attorney's conduct violated the rules of professional conduct for clear error"). A finding of fact is clearly erroneous when, upon review, we are "left with the definite and firm conviction that a mistake has been made." In re Ulanowski , 800 N.W.2d 785, 793 (Minn. 2011) (citation omitted) (internal quotation marks omitted). Even when a transcript is ordered, we review the referee's "conclusions of law that do not rely on the referee's factual findings," including the interpretation of the Rules of Professional Conduct, de novo. In re Montez , 812 N.W.2d 58, 66 (Minn. 2012).

I.

MacDonald first challenges the referee's factual findings. As to the WCCO interview, MacDonald claims that, because the referee quoted only portions of her statements, the referee's findings "represent the words of the Referee, not those actually spoken" by MacDonald. But MacDonald does not explain why quoting her words more extensively would change the referee's findings that her comments violated Rules 8.2(a) and 8.4(d) of the professional conduct rules. The referee is not required to recite the entire interview transcript, and the referee did not take MacDonald's remarks out of context or otherwise distort their meaning.

MacDonald also claims that the referee conflated two orders from the S.G. case that the parties offered as exhibits. We have carefully reviewed the referee's findings and the relevant exhibits and conclude that the referee properly explained those orders. The referee correctly observed that an emergency telephone conference was held before the September 7, 2012 order and that a later order identified a stipulation that had been made between the parties...