Minnesota Splits on Mental Evaluation for Sanctioned Lawyer

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By Samson Habte

An erstwhile candidate for the Minnesota Supreme Court was suspended from practice Jan. 17 for misconduct that prompted bar authorities to recommend that she undergo a mental health evaluation.

The lawyer, Michelle Lowney MacDonald, is a family law practitioner who testified at her disciplinary hearing that she feels a “calling” to abolish the family law system. Her charges largely stemmed from her conduct in a divorce case that generated national media coverage.

Among other things, a bar referee found that MacDonald:

  •  filed baseless motions that challenged the judge’s custody orders and the very constitutionality of the family court system;
  •  filed a frivolous $55 million civil rights lawsuit against the judge on the first day of trial in an attempt to engineer his recusal;
  •  attacked the judge’s impartiality and interrupted testimony during the first day of what she characterized as the “pretend trial";
  •  took photographs in the courtroom before day two of trial, prompting deputies to issue her a contempt citation during a subsequent recess;
  •  refused to provide the deputies with biographical information, prompting them to temporarily place her in custody before trial restarted;
  •  refused to “stand or walk” when asked to return to the courtroom, leading the deputies to strap her to a wheelchair and bring her back to the courtroom without her shoes or glasses; and
  •  refused to participate in day two of the trial and remained silent when the judge asked questions.
The referee asked the Minnesota Supreme Court to suspend MacDonald for “a minimum” of 60 days, followed by two years of probation, and to require that she “obtain a mental health evaluation” before reinstatement.

 

Voting 4–1, the court adopted the recommendation to suspend MacDonald for two months and place her on probation for two years.

But the majority—which said it had never heard a discipline case that involved a similar “constellation of misconduct"—declined to require that MacDonald undergo a mental health evaluation.

“Not only is there limited precedent for imposing such a condition when the attorney has not placed her mental health at issue in the disciplinary proceeding, but the referee here has made no factual findings that support it,” the majority said in a per curiam opinion.

In a solo dissent, Justice Anne K. McKeig decried the sanction as a “slap on the wrist” and said a mental health evaluation was justified because of MacDonald’s “inability to distinguish fact from fiction” and “pattern of brazenly alleging falsehoods as facts.”

No Solo Practice

The majority did impose an unusually strict set of conditions on MacDonald’s practice during the two-year probationary period following her suspension.

The court said MacDonald won’t be allowed to work as a solo practitioner during that time, and must instead “work in a setting where she is in daily contact with” a supervisory lawyer who must co-sign all of her pleadings.

MacDonald will also have to report to a “probation supervisor” appointed by the chief disciplinary counsel. The supervisor is to receive an inventory of all of MacDonald’s active client files at the beginning of each month.

MacDonald must also complete 15 credits of continuing legal education in the areas of civil trial and appellate practice. At least one course must emphasize “trial preparation and courtroom decorum.”

Electoral History and Recusals

MacDonald was a candidate for the Minnesota Supreme Court in 2014 and 2016. She garnered 46 1/2 percent of the vote in the first race, and 40 percent in the second.

But she was less popular among appellate lawyers in polls the state bar commissioned for both of MacDonald’s campaigns. About 6 1/2 percent of those respondents favored MacDonald in the 2014 race, and 3.1 percent chose her in 2016.

MacDonald’s opponents in the 2014 and 2016 races—Justices David L. Lillehaug and Natalie E. Hudson—did not participate in this case. Justice Margaret H. Chutich also recused herself.

The majority was comprised of Chief Justice Lorie Skjerven Gildea; Justices G. Barry Anderson and David R. Stras; and retired Justice Christopher J. Dietzen.

Paul Engh, Minneapolis, represented MacDonald. The Office of Lawyers Professional Responsibility was represented by Director Susan Humiston, St. Paul, Minn.

The case is In re MacDonald , 2018 BL 14531, Minn., A16-1282, 1/17/18 .

To contact the reporter on this story: Samson Habte in Washington at shabte@bloomberglaw.com

To contact the editor responsible for this story: S. Ethan Bowers at sbowers@bloomberglaw.com

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