In re Strunk, A19-0917

• Decision Date: 01 July 2020
• Docket Number: A19-0917
• Citation: 945 N.W.2d 379
• Parties: IN RE Petition for DISCIPLINARY ACTION AGAINST Kent Frederick STRUNK, a Minnesota Attorney, Registration No. 0288391.
• Court: Minnesota Supreme Court

945 N.W.2d 379

IN RE Petition for DISCIPLINARY ACTION AGAINST Kent Frederick STRUNK, a Minnesota Attorney, Registration No. 0288391.

A19-0917

Supreme Court of Minnesota.

Filed: July 1, 2020

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

James M. Ventura, Wayzata, Minnesota, for respondent.

OPINION

PER CURIAM.

The Director of the Office of Lawyers Responsibility filed a petition for disciplinary action against respondent Kent Frederick Strunk, alleging that Strunk violated Rule 8.4(b) of the Minnesota Rules of Professional Conduct by committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects. Based on the referee's findings and our own review of the record, we conclude that Strunk's misconduct warrants an indefinite suspension with no right to petition for reinstatement for 5 years.

FACTS

In October 2017, the National Center for Missing and Exploited Children provided a tip to the Bureau of Criminal Apprehension (BCA) that suspected child pornography had been uploaded to an online chatroom. The BCA traced the IP address used to upload the image to Strunk. On May 2, 2018, the BCA executed a search warrant at Strunk's residence and recovered Strunk's computer, which contained numerous images of child pornography, including images of infants. Strunk was arrested and subsequently charged with five counts of felony possession of child pornography in violation of Minn. Stat. § 617.247, subd. 4(a) (2018). Strunk pleaded guilty to all five counts in October 2018. In April 2019, Strunk was sentenced to a stay of imposition on each count, with a 5-year supervised probationary period.

Shortly after Strunk's arrest, the Director of the Office of Lawyers Professional Responsibility began investigating possible misconduct by Strunk. Strunk's attorney requested a delay in responding to the investigation until the corresponding criminal proceeding was resolved. The referee found that this request, sent via letter by counsel for Strunk, was also meant to assure the Director that Strunk had been "placed on leave by the Seventh District Public Defender, and had either resolved or [withdrawn] from his private practice cases."¹

After the criminal proceedings were resolved, the Director filed the petition for disciplinary action with our court. Strunk filed an answer, admitting to his criminal conduct and requesting a hearing to establish mitigating circumstances for disciplinary purposes.

Strunk testified at the disciplinary hearing that he voluntarily suspended his practice, completed a psychosexual evaluation, and enrolled in out-patient therapy. A clinical psychologist testified to Strunk's participation and progress in out-patient treatment at Alpha Human Services. Although she testified that Strunk's "official diagnosis" was "Unspecified Paraphilic Disorder," she offered no testimony describing its diagnostic criteria or qualifying Strunk's unspecified paraphilia

.

Strunk also introduced four exhibits, which included a copy of his psychosexual examination, intake documents and progress notes completed by Alpha Human Services, and an expert evaluation of Strunk's medical records that was prepared for sentencing in Strunk's criminal matter. References to Strunk's diagnosis of "Unspecified Paraphilic Disorder" did not discuss the severity of Strunk's condition. The Director introduced eight exhibits: the complaint, plea, and warrant of commitment in Strunk's criminal matter, and the final rulings in Strunk's five prior disciplinary actions.

The referee found that Stunk "candidly admitted his criminal behavior and subsequent convictions." The referee found that Strunk's testimony and evidence of his past behavior demonstrated remorse for his misconduct and a commitment to recovery from his addiction.

The referee found that Strunk's diagnosis "was and is Unspecified Paraphilic Disorder." He then evaluated whether Strunk's condition was a mitigating factor, using the five-factor test we adopted in In re Weyhrich , 339 N.W.2d 274, 279 (Minn. 1983) : (1) the existence of a severe psychological disorder; (2) the psychological disorder directly caused the misconduct; (3) the attorney is undergoing treatment and is making progress to recover from the psychological disorder that caused the misconduct; (4) recovery has arrested the misconduct; and (5) the misconduct is not apt to recur. The referee found "[b]eyond a doubt, factors 3, 4 and 5 have been clearly proven," but made no specific findings regarding factors 1 or 2. Instead, the referee found that the experts’ reports "all demonstrate that [Strunk's] diagnosed paraphilia

was at the heart of his criminal behavior that is the basis of his misconduct," and adopted the finding in the psychosexual examination report that Strunk's criminal actions were "due to a complicated set of interconnected issues of impulsivity, narcissism, and distorted thinking for which he is receiving treatment." Concerning the severity of Strunk's condition, the referee wrote:

A careful and repeated reading of all of [Strunk's] exhibits provides a complex and nuanced view of the respondent, his psychological issues and the treatment necessary to address them. How great is the leap between "a severe psychological problem" and an Unspecified Paraphilic Disorder? The record and the testimony does not directly address that.

Nonetheless, the referee concluded that Strunk had satisfied the Weyhrich test and treated Strunk's psychological condition as a mitigating factor.

Ultimately, the referee recommended that Strunk be suspended from the practice of law for a period of 3 years, and that he "be given credit for one year for his self-imposed suspension." The referee recommended that Strunk's suspension continue until the successful completion of his treatment program or his dismissal from probation in the corresponding criminal case, whichever occurs sooner.

The Director ordered a transcript, challenging the referee's findings of fact and conclusions regarding Strunk's psychological condition and "self-imposed suspension." The Director asks us to impose an indefinite suspension with no right to petition for reinstatement for a period of 5 years. Strunk, in turn, asks us to affirm the referee's findings and impose the referee's recommended discipline.

ANALYSIS

I.

The Director challenges the referee's treatment of Strunk's psychological condition as a mitigating factor. Because the Director ordered a transcript of the disciplinary hearing, the referee's findings of fact and conclusions are not conclusive, see Rule 14(e), Rules on Lawyers Professional Responsibility (RLPR). We review the referee's findings—and the lack of particular findings—for clear error. In re Farley , 771 N.W.2d 857, 861 (Minn. 2009). A referee's findings are clearly erroneous when they leave us with the definite and firm conviction that a mistake has been made. In re Lieber , 939 N.W.2d 284, 291 (Minn. 2020).

After the Director has proven misconduct, the burden shifts to the attorney to prove a mitigating psychological disorder. Farley , 771 N.W.2d at 861. The attorney must prove, by clear and convincing evidence, that: (1) the attorney has a severe psychological disorder; (2) the psychological disorder directly caused the misconduct; (3) the attorney is undergoing treatment and is making progress to recover from the psychological disorder that caused the misconduct; (4) recovery has arrested the misconduct; and (5) the misconduct is not apt to recur. Weyhrich , 339 N.W.2d at 279 ; see Farley , 771 N.W.2d at 862 (discussing severity and direct causation). We only consider psychological disorders as mitigating factors for intentional misconduct if the lawyer has proven all of the Weyhrich factors. In re Mayne , 783 N.W.2d 153, 161 (Minn. 2010). Here, the first two Weyhrich elements are in dispute.

Our precedent requires attorneys to show, by clear and convincing evidence, that a psychological disorder is "severe" before the disorder is a mitigating factor. Weyhrich , 339 N.W.2d at 279. The clear-and-convincing evidentiary standard is demanding, requiring "a high probability that the facts are true." See In re Houge , 764 N.W.2d 328, 334 (Minn. 2009) ; see also In re Stoneburner , 882 N.W.2d 200, 203 (Minn. 2016) ("[C]lear and convincing evidence requires more than a preponderance of the evidence, but less than proof beyond a reasonable doubt."). Our cases have limited the use of psychological disorders as a mitigating factor, distinguishing between serious conditions and conditions that are sufficiently "severe" to support mitigation. See In re Albrecht , 779 N.W.2d 530, 536 (Minn. 2010) (noting that a serious condition did not qualify as a severe disorder, so was not a mitigating factor).

In evaluating whether a condition is "severe," we consider all of the evidence, such as evidence that the condition qualified as a severe problem on a recognized psychological diagnostic scale, or evidence of drastic, self-destructive behavior

. See

In re Jones , 834 N.W.2d 671, 678 (Minn. 2013) ; In re Munns , 427 N.W.2d 670, 672 (Minn. 1988). Because of the significance of the severity of a condition to the Weyhrich analysis, the referee erred by not making a specific finding regarding the severity of Strunk's unspecified paraphilic disorder.

Strunk asserts that his medical records and his diagnosis speak for themselves. He argues, "[i]t is abundantly clear that addiction to viewing child pornography is a ‘severe’ psychological problem. Possessing child pornography is a serious, harmful, felony level offense." He urges this court to consider that the referee found the testimony of Strunk's clinical psychologist credible when she testified that his addiction "grew over time." Strunk also points to the presence of a diagnosis recognized by the American Psychiatric Association and to the...