Michelle MacDonald receives ‘minimal’ discipline

A curtain dropped earlier this month in the operatic saga that resulted in a disciplinary action against West. St. Paul attorney Michelle MacDonald.

With a recommended discipline of a 60-day suspension, some may say Judge Heather Sweetland should have come down more forcefully, but she gave the Office of Lawyers Professional Responsibility what it requested.  Sweetland was appointed as referee in the matter by the Supreme Court.

Nevertheless, MacDonald is seeking review of the findings and the recommendation, said her attorney, Paul Engh. A transcript has been ordered.

The second act already promises more drama.

Justices David Lillehaug, Natalie Hudson and Margaret Chutich have recused from MacDonald’s case and former Justice Christopher Dietzen has been appointed acting justice. That means Chief Justice Lorie Gildea, Dietzen, and Justices G. Barry Anderson, David Stras and Anne McKeig will hear the matter.

MacDonald’s transgressions included taking pictures in a courtroom, interrupting and speaking over judges, issuing subpoenas to attorneys to acquire billing information, disrupting a courtroom to the point where she was taken into custody and making false accusations in a federal lawsuit against a judge, Sweetland said.

MacDonald would have two years of supervised probation, as requested by the Office of Lawyers Professional Responsibility. Reinstatement is automatic after a 60-day suspension.

Sweetland called the recommendation “minimal” under the circumstances and recommended a mental health evaluation and follow-through as a condition of probation.

MacDonald has requested a review of the findings and the recommendation, said her attorney, Paul Engh. Engh has ordered a transcript.

Sweetland said the issues in the hearing were broadly grouped into three parts: statements and actions against Judge David Knutson and Hennepin County Referee Timothy Mulrooney, alleged incompetence regarding the issuance of subpoenas and appeals and actions taken by MacDonald to disrupt court proceedings.

The petition against MacDonald was filed in July by the director of the OLPR, Susan Humiston, who also tried the case.  In large part it resulted from a dissolution case where parenting time and child support was contested.

MacDonald represented mother Sandra Grazzini-Rucki, who hid her two daughters from their father for over two years and was convicted for deprivation of parental rights. She claimed she was protecting the daughters from abuse.  Grazzini-Rucki chose incarceration over probation and Department of Corrections records do not show that she is in custody.

MacDonald was the fourth attorney to work for Grazzini-Rucki. She subpoenaed the three prior attorneys and their billing records, alleging that they needed to appear in court to lay the foundation for the bills. The subpoenas were quashed and MacDonald was sanctioned more than $6,000.

A custody trial in September 2013 devolved into disarray after Judge David Knutson refused to recuse himself.  MacDonald asked him to recuse because she had sued him in federal court for civil rights violations and then initially refused to proceed with the trial. The referee found that MacDonald admitted that she was unprepared.

The next day, MacDonald took pictures in the courtroom even after deputies told her to stop, the findings continue. They confiscated her camera and then her cell phone. Knutson was not on the bench, which MacDonald asserted meant that the order against pictures during a trial or proceeding did not apply.  The deputies attempted to cite her for contempt and she left the courtroom with them. Grazzini-Rucki and another woman packed all the trial materials and left the courtroom within three minutes.

MacDonald was taken into custody for refusing to provide information to the deputies and was later returned to the courtroom handcuffed in a wheelchair since she refused to stand or walk. In the courtroom, she refused to speak with the judge or make arrangements to retrieve her file.

Sweetland said that MacDonald’s and Grazzini-Rucki’s actions apparently were orchestrated to disrupt the trial and that MacDonald failed to competently represent her client.

Criminal charges against MacDonald were dropped because the deputies had taken her camera without a warrant. The federal court case was dismissed. Knutson is a member of the Board of Judicial Standards, and MacDonald sought his dismissal, which could not happen because it was a gubernatorial appointment.

Overreaching?

MacDonald based her defense on the First Amendment and good faith. “Ms. MacDonald’s comments concerning Judge Knutson were based upon her subjective feelings and opinions about his unfairness. In this context, the Board’s complaint should be read with greater caution. Its Notice seeks to vindicate the bench at the expense of the bar’s right to question what was deplorable conduct, the shackling of a non-dangerous advocate during a trial,” Engh told the court in a brief.

Engh noted that it is unclear whether the director must disprove MacDonald’s defenses and, if so, by what standard. MacDonald is charged with violating Rule 8.2 for making a false statement about a judge, but alleges that her comments as an advocate, made in good faith, do not require personal knowledge.

“The Court could have easily remedied what happened by insisting she be released, for a tab charged premised upon an illegal search, concerning a district court rule she did not violate[.] Ms. MacDonald’s belief and opinion that Judge Knutson did not [order her release] because of her complaints against him has a certain resonance,” Engh wrote.

Engh noted that some judges have made more critical statements about each other than MacDonald ever did. For instance, in 1995 Judge LaJune Lange held a press conference and stated that sitting judges “have intimidated, threatened lawyers, public citizens, the media and others who disagree with their methods or personal agenda.” No discipline resulted.

And in advocating for suspending MacDonald’s law license, Engh wrote, the board overreached. “The bulk of the complaint concerns matters that would not otherwise see the light of day. The taking of a picture when court is not in session; the subpoenas for fee evidence in a divorce case concerned with awarding fees; the dismissal of an appeal without a concomitant malpractice claim by another otherwise contented client; the failure to properly object and preserve an issue is mentioned in scores of appellate decisions each year without Board intervention. An attorney’s sporadic interruptions of the Court during a hotly contested trial is something that happens from time to time.”

Engh asked the court to consider the various ethical precepts involved, which conflict with each other, against a 25-year legal career featuring extensive pro bono work. He also argued that the court had a reciprocal duty to refrain from demeaning a lawyer. Allowing her to be “shackled” offended judicial decorum and respect for MacDonald as an individual, he wrote.