Attorney Michelle MacDonald (Photo: Kevin Featherly)
History suggests Supreme Court hopeful’s indefinite penalty could drag on for months
It could be a while before Michelle MacDonald practices law again. It’s even possible that her minimum four-month indefinite suspension could disqualify her from a planned Minnesota Supreme Court run in 2022.
MacDonald plans to compete against Justice Gordon Moore, who will run for his first full six-year term next year. Moore was appointed to the court in 2020, replacing the retired Justice David Lillehaug.
To qualify for state judicial office, candidates “must be licensed to practice law in Minnesota,” according to the Minnesota Secretary of State’s office.
But MacDonald, in emails exchanged with Session/Law, suggested that requirement might not be set firmly in stone. Federal judges need not be licensed attorneys, she points out, and the only qualification in the Minnesota Constitution is that judges must be “learned in the law.”
“‘Learned in the law’ is not intended to mean a licensed attorney only,” she said.
However, according to Minnesota House Research, case law has interpreted the term “learned in the law” to mean that judges must be licensed lawyers. And the affidavit of candidacy that judicial candidates must sign requires them to swear, “I am learned in the law and licensed to practice law in Minnesota.” The same form asks lawyers to provide their attorney license numbers and attach copies of their licenses.
Regardless of whether that’s a genuine controversy, MacDonald could brush it aside by getting her license back in time for the next election cycle. She could do that, if events move somewhat swiftly.
But if history is any judge, the odds of events moving swiftly might be against her.
MacDonald was given an indefinite, minimum four-month suspension on June 30. The Supreme Court found that she had twice violated the state‘s Rules on Lawyer’s Professional Responsibility.
One infraction was a repeat violation for publicly impugning the integrity of Dakota County District Court Judge David L. Knutson. Earlier statements against the judge were part of the reason MacDonald was previously suspended in 2018.
The other issue in last month’s ruling involved what the Supreme Court termed a less serious violation, failing to properly inform a client about a fee-splitting arrangement with another lawyer.
Her suspension goes into effect this week. And while MacDonald can petition for reinstatement after about 120 days, there is little to no chance that she’ll be able to practice law as soon as that.
That’s because under Rule 18, the lawyer’s reinstatement rule, it’s only suspensions that last 90 days or less that can be reinstated by an affidavit filed with the Clerk of Appellate Courts and the OLPR director. In those cases, the investigation and hearing process often is waived.
Not so for indefinite suspensions like MacDonald’s, which extend beyond 90 days. She must file an affidavit, pass the Multistate Professional Responsibility Examination—which is only administered three times a year—and undergo an investigation by the Office of Lawyers Professional Responsibility.
After that, she must appear before a three-member Lawyers Professional Responsibility Board panel, which will act as a fact-finding body and create a record for the Supreme Court to consider later.
Judging from other lawyers’ previous reinstatement attempts, a lot of time can go by between the date a lawyer files for reinstatement and the LPRB hearing. And the process doesn’t end there.
The case then must go to the state Supreme Court, which gives no deference to the LPBR panel’s findings, though it does take them into consideration. As the Supreme Court’s 1999’s In re Kadrie stated:
“The responsibility for determining whether to reinstate an attorney rests solely with this court.”
After all the hearings are done, MacDonald might still have to wait several additional months for justices to issue their final ruling and let her she know whether her license has been reinstated.
“The time that that takes to get done can vary,” said Officer of Lawyers Professional Responsibility Director Susan Humiston. “But it does start once the attorney is eligible to petition for reinstatement.”
Humiston declined to comment directly on the MacDonald case.
History as a guide
So realistically, how long could it be before MacDonald has a chance of being reinstated? A few contemporary suspension cases might offer some clues—though it is important to note that none of them exactly matches the facts of MacDonald’s case.
In re Tigue, which was decided last month, is one example. In that case, civil liberties lawyer Randall D. Tigue was indefinitely suspended for “intentionally misappropriating client funds.” His 2017 suspension was set for a minimum of two years—much longer than MacDonald’s.
Tigue filed his petition for reinstatement on Oct. 8, 2019. By the time the Office of Professional Responsibility finished investigating and an LPBR panel heard his case, the date was May 26, 2020. That was more than seven months after he filed for reinstatement.
The LPBR issued its recommendations to the Supreme Court in Tigue on June 26, 2020. There followed a period of briefings, motions, submissions and ordering of transcripts. The Supreme Court finally held oral arguments on Dec. 8, 2020.
The court didn’t issue its opinion—denying Tigue reinstatement—until June 16, 2021. That was 19 months after he applied.
A case that’s closer to MacDonald’s in terms of minimum suspension time is 2020’s In re Trombley. There attorney Carol Townsend Trombley was suspended for a minimum six months for “dishonestly converting funds.”
She petitioned for reinstatement on March 12, 2019. Her case also went through an investigation and LPRB review and was heard by Supreme Court on June 3, 2020. The case was decided—and Trombley reinstated—on Oct. 6, 2020. That process also took 19 months.
In re Griffith involved lawyer Clark Calvin Griffith II, a former Minnesota Twins executive whose indefinite suspension for sexually harassing a female law student allowed him to petition for reinstatement after just 90 days. He did so on July 23, 2015.
His case wound its way through the investigation and LPBR process and was heard by the Supreme Court on June 9, 2016. Its order denying his petition for failure to demonstrate moral change arrived on Aug. 17, 2016. That process took 13 months.
Sixteen months separate the mid-July effective date of MacDonald’s suspension and Election Day 2022. A mere 10 months separate her suspension date from the judicial candidacy filing deadline on May 31, 2022.
Bill Wernz, a legal ethics expert and former director of the Office of Lawyers Professional Responsibility, has investigated lawyer misconduct in the past. He thinks it is possible that MacDonald’s case could go relatively quickly.
Her case is not terribly complicated, he said, and her conduct has been investigated a few times already in the not-so-distant past. He said he thinks the OLPR’s investigation might last a matter of weeks rather than months and that the office could hand the case off to the board shortly after that.
Whether things go that smoothly, according to Wernz, is really up to MacDonald. He said that as part of Humiston’s investigation, MacDonald will be asked in to give a statement so investigators can gauge her state of mind.
An important question to be asked then, Wernz said, is whether MacDonald has undergone a “moral change”—which the OLPR regards as a necessary step to reinstatement. Such a change, the office says, involves remorse, acceptance of responsibility and a renewed commitment to the ethical practice of law. Recognition that past conduct was wrong is also part of the calculation.
Wernz, who knows MacDonald only by reputation, wonders whether that might be her biggest obstacle. Her answer to past misconduct, he said, has been in essence to repeat it.
“Somehow she is going to have to separate herself from the past,” Wernz said. “In order to do that, she is really, I think, going to have to undergo a transformation.” Judging from her past behavior, Wernz said he would be “surprised” if MacDonald does that.
‘To punish and chill’
Certainly, she isn’t showing much contrition just yet.
In an e-mail to Session/Law, MacDonald said she was “shocked” by her suspension, since the main conduct in question were statements she gave to WCCO Radio, during an interview while she was campaigning for a Minnesota Supreme Court seat.
MacDonald told Session/Law that she thinks the statements were protected by the First Amendment. She made much the same argument before the court, claiming that 2002’s U.S. Supreme Court ruling in Republican Party of Minnesota v. White gave her wide latitude as a judicial candidate to comment on legal issues. Her public statements, she maintained then as now, should have merited greater constitutional protection.
The court unanimously disagreed. “Her reliance is misplaced,” the Supreme Court’s order says.
In her exchange with Session/Law, MacDonald criticized last month’s ruling, writing:
“This decision represents an example of the view that it is necessary to punish and chill attorney criticism of judges as essential to preserve ‘the integrity’ of the judiciary.”
MacDonald added that she has strong feelings about the First Amendment—and, in particular, any attempts to restrict the free speech of judicial candidates or lawyers generally. Writes MacDonald:
“It is precisely in the lawyering context—where attorneys engage in speech, association and petitioning for the very purpose of securing client rights, invoking law, enabling the judicial power and obtaining justice—that the need for First Amendment protection is the most acute. If regulators silence that voice, they silence justice.”
MacDonald told the StarTribune on July 1 that she plans to petition for a writ of certiorari asking the U.S. Supreme Court to review her June 30 suspension. A similar petition she filed 2018 was denied.