In re Petition for Disciplinary Action Against Clayton D. Halunen

• Docket Number: A22-1403
• Decision Date: 30 March 2023
• Citation: 987 N.W.2d 585 (Mem)
• Parties: IN RE Petition for DISCIPLINARY ACTION AGAINST Clayton D. HALUNEN, a Minnesota Attorney, Registration No. 0219721.
• Court: Minnesota Supreme Court

987 N.W.2d 585 (Mem)

IN RE Petition for DISCIPLINARY ACTION AGAINST Clayton D. HALUNEN, a Minnesota Attorney, Registration No. 0219721.

A22-1403

Supreme Court of Minnesota.

March 30, 2023

ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Clayton D. Halunen has committed professional misconduct warranting public discipline. Specifically, the petition alleges that Halunen sexually harassed two men employed by Halunen Law. Halunen committed this misconduct when he was the sole owner and managing partner of the firm. Halunen originally contacted one of the men, who was 19 years old and worked at a fast-food restaurant, using a dating app. When the two met, Halunen encouraged him to apply for a job at his law firm. The second person was a law student whom Halunen initially messaged over social media. He was later hired as a summer extern at Halunen Law. Halunen engaged in repeated acts of unwelcome physical and verbal conduct of a sexual nature with these men. Halunen subjected one of them to more serious repeated acts of unwelcome, sexual contact. See Minn. R. Prof. Conduct 8.4(g), 8.4(h). And Halunen attempted to convince the two employees not to make their allegations public by threatening them with civil action, criminal prosecution, and professional consequences. See Minn. R. Prof. Conduct 8.4(d). Finally, Halunen provided legal advice to one of the employees who was unrepresented and had interests that conflicted with those of Halunen. See Minn. R. Prof. Conduct 4.3(d).

The parties have filed a stipulation for discipline. In it, Halunen waives his procedural rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), waives his right to answer, and unconditionally admits the allegations in the petition. The parties jointly recommend that the appropriate discipline is a 6-month suspension, followed by 2 years of supervised probation, and that we waive the reinstatement hearing provided for in Rule 18(a) through (d), RLPR, and allow Halunen to petition for reinstatement under Rule 18(f), RLPR. Without such a waiver, lawyers suspended for more than 90 days are required to petition for reinstatement and have a reinstatement hearing (reinstatement hearing process) under our rules. See Rule 18(a)–(d), RLPR.

Along with the stipulation, the parties have filed a memorandum explaining why they believe the recommended discipline and request to waive the reinstatement hearing process are appropriate. The parties assert that mitigating factors support the recommended suspension. They point to Halunen's genuine remorse for his misconduct and the corrective actions he took within his practice before a complaint was filed with the Director, such as removing himself from certain hiring decisions and establishing a workplace hotline to report employee concerns. The reinstatement hearing process should be waived, the parties contend, because of these mitigating factors and other actions Halunen took after his misconduct came to light, including beginning treatment with a psychologist in 2019.

We retain the ultimate responsibility for determining the appropriate discipline. In re Eskola , 891 N.W.2d 294, 298 (Minn. 2017). The purpose of discipline for professional misconduct is not to punish the attorney but to protect the public and the judicial system and to deter future professional misconduct. In re Plummer , 725 N.W.2d 96, 98 (Minn. 2006). Halunen's misconduct is very serious. The facts of the petition establish that Halunen targeted men who were vulnerable due to their age and socioeconomic status, encouraged them to work for his firm, and then sexually harassed them. The sexual harassment was egregious because of the number of incidents—many of which involved intimate, physical sexual contact—and Halunen's repeated exploitation of the power imbalance between himself and his employees. And Halunen threatened both men in an attempt to keep his misconduct hidden. Given these admitted facts, the court is in full agreement that the recommended discipline and request to waive the reinstatement hearing process are inadequate to protect the public and the judicial system and to deter future misconduct by the individual attorney and other attorneys as well.

We conclude that the appropriate disposition is a 1-year suspension and that Halunen comply with the reinstatement hearing process before reinstatement. The separate concurrence and dissent instead asserts that we should suspend Halunen for 18–24 months. The concurrence and dissent contends three decisions support a longer suspension: In re Kennedy , 946 N.W.2d 568 (Minn. 2020), In re Bulmer , 899 N.W.2d 183 (Minn. 2017), and In re Strunk , 945 N.W.2d 379 (Minn. 2020). Each of these cases, however, is distinguishable.

We imposed a 2-year suspension in Kennedy on an attorney who sexually harassed a client by subjecting her to repeated, unwelcome sexual comments, attempting to have sexual relations with this client, and then making knowingly false statements to the police and the Director about his misconduct. 946 N.W.2d at 576–79, 583. Unlike Halunen, Kennedy sexually harassed a vulnerable client and made repeated false statements. Moreover, there were three aggravating factors in Kennedy : Kennedy's extensive disciplinary history, his probationary status when committing the misconduct, and his false statements to the referee at the disciplinary hearing. Id. at 581–83 (explaining that "substantial discipline" was warranted because of Kennedy's "disciplinary history and probationary status"). There are no comparable aggravating factors here.¹

We imposed a 3-year suspension in Bulmer on an attorney who had sexual relations with the wife of a client "in exchange for a reduction or forbearance of his fee," made false statements to an assistant county attorney about the sexual relations, and had sexual relations with a client. 899 N.W.2d at 184–85. Unlike Halunen, Bulmer's misconduct involved and harmed clients. Id. at 184–85 (explaining that Bulmer created a conflict of interest when he had a sexual relationship with a client's wife, that Bulmer "betray[ed]" both his client and his client's wife, and that Bulmer's "false statements tended to undermine his own client's claim for postconviction relief"). And Bulmer's misconduct was aggravated because he had previously engaged in the same type of misconduct. Id. at 183 (explaining that Bulmer had been admonished three times and that one admonition was for having "sexual relations with a witness while representing a criminal defendant"). Halunen has not been disciplined for the same type of misconduct.

Finally, Strunk bears little resemblance to this case. In Strunk , we suspended a lawyer for 5 years for distributing child pornography and for five felony convictions for possessing child pornography. 945 N.W.2d at 382, 388. "Strunk possessed nearly 100 pornographic images of child victims of abuse and sexual exploitation, including infants." Id. at 386. We concluded that "the presumptive sanction" of disbarment "for felony misconduct is particularly appropriate in cases concerning sexual crimes against children." Id. at 387. Based on the specific circumstances in Strunk , we did not disbar Strunk and instead suspended him for 5 years. See id. at 387–88. Halunen has not been accused by the Director, nor charged or convicted of any criminal acts in relation to this misconduct, nor does his misconduct involve children. And we have not stated that the presumptive sanction for sexual harassment is disbarment.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED THAT:

1. Respondent Clayton D. Halunen is indefinitely suspended from the practice of law, effective 14 days from the date of this order, with no right to petition for reinstatement for 1 year.

2. Respondent may petition for reinstatement under Rule 18(a)–(d), RLPR. Reinstatement is conditioned on successful completion of the written examination required for admission to the practice of law by the State Board of Law Examiners on the subject of professional responsibility, see Rule 18(e)(2), RLPR ; see also Rule 4.A.(5), Rules for Admission to the Bar (requiring evidence that an applicant has successfully completed the Multistate Professional Responsibility Examination), and satisfaction of continuing legal education requirements, see Rule 18(e)(4), RLPR.

3. Respondent shall comply with Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals), and shall pay $900 in costs under Rule 24, RLPR.

BY THE COURT:

/s/ __________

Natalie E. Hudson

Associate Justice

CONCURRENCE & DISSENT

McKEIG, Justice (concurring in part and dissenting in part).

I respectfully concur in part and dissent in part. This case comes before us on the parties’ stipulation for discipline, which asks the court to adopt their agreement that respondent Clayton D. Halunen be suspended from the practice of law for 6 months, placed on probation for 2 years, and waive the requirement that he petition for reinstatement. The court rightly declined to waive the petition-for-reinstatement requirement and rejected the proposed time period of Halunen's suspension, decisions I concur with. However, I write separately to dissent because, in my view, the severity of Halunen's misconduct warrants a longer suspension than 1 year. I would suspend Halunen indefinitely with no right to petition for reinstatement for 18–24 months.

For 2½ years, Halunen engaged in a pattern of sexual misconduct involving two subordinates in his law firm. The sexual misconduct began with Halunen's over-the-clothing groping of a 19-year-old employee. Halunen's sexual misconduct with this employee escalated into unwanted kissing, aggressive physical touching and groping, soliciting sex through text messages, soliciting explicit photographs from the employee, and sexual relations. This conduct occurred both in...