A veteran criminal defense attorney who was secretly recorded engaging in sexually explicit conversations with a young female client will lose his law license for at least two years if the Minnesota Supreme Court accepts the recommendations of a court-appointed referee.
In his memorandum, referee Paul A. Nelson wrote that Rochester lawyer Duane A. Kennedy’s “own words, captured without his knowledge, condemn him quite completely.”
But in oral arguments before the court on Dec. 3, Eric Newmark, Kennedy’s attorney, pushed back against the core allegation that Kennedy attempted to solicit sex from the woman, who retained Kennedy after being charged with fifth-degree possession of a controlled substance.
“In terms of an actual quid pro quo, there is no indication on the record there was a serious attempt,” said Newmark, partner at the Minneapolis firm of Newmark Storms Dworak.
Although Newmark acknowledged that Kennedy “engaged in conversation that was inappropriate,” he characterized the exchanges between attorney and client as banter, not barter.
Urging the justices to impose a harsher sanction than the 30-day suspension Newmark sought, Jennifer S. Bovitz, senior assistant director at the Office of Lawyers Professional Responsibility, said the case presented some novel issues.
“While the court has had the opportunity to address attorney misconduct of a sexual nature, the court has not had previously been presented with the constellation of facts here,” said Bovitz. “The cumulative misconduct that respondent engaged in while representing a client includes ongoing sexual harassment, soliciting his client for sex in exchange for payment of fees, intentional dishonesty while lying to law enforcement, and lying to the director [of the Office of Professional Responsibility].”
Kennedy’s past disciplinary history makes him a poor candidate for probation, Bovitz said. That record includes three 30-day suspensions, two public admonitions and one reprimand.
The origins of the most recent complaint against Kennedy date to 2015 after the then-22-year old woman, identified in court documents as “K.P.,” was charged with illegal possession of three Adderall tablets and possession of drug paraphernalia.
According to K.P.’s testimony before the referee, sexual themes were evident at the initial consultation. Prior to formalizing the fee arrangement, K.P. said, Kennedy told her, “A cute girl like you, you should not have to pay anything, right?”
At a second meeting, K.P. testified that Kennedy started getting “really creepy.” She said Kennedy told her she could make “other arrangements” to defray the $11,500 cost of representation, either by giving him a “hand job” or performing other sexual favors.
According to K.P., Kennedy subsequently appeared at her workplace in a Rochester mall to apologize for that overture, which he blamed on the effects of codeine after a recent surgery.
Following the exchange, K.P. used her cellphone to surreptitiously record several conversations with Kennedy, including one in which Kennedy suggested she could reduce her bill by “a buck a time,” apparently referencing the aforementioned hand jobs.
He also told K.P. that another female client had once offered him oral sex and a free haircut to help her with a criminal case.
“But I got to thinking — because I wanted to do it — but I got to thinking that I’m forever under her fucking thumb,” Kennedy said, according to the transcript of the conversation. “Yeah, I don’t know if it’s filmed or if somebody else is watching or on and on and on and on. Pretty girl. Sara. I won’t tell you her last name.”
In his argument to the justices, Newmark said Kennedy’s remarks were crass but not serious. Taking Kennedy’s “buck a time” proposition literally, Newmark noted in his brief, it would take 13 years for K.P. to pay off her legal bill.
“This is banter,” said Newmark. The recordings show that K.P. was “not a person who sounds like she’s being harassed or intimidated,” he added.
That prompted Justice Anne McKeig to interject, “She’s 22. He’s in his 70s. It’s not an equal relationship.”
Newmark said he agreed with that. But he said the question before the court is not whether Kennedy’s remarks were appropriate but, rather, whether they constituted a violation of the rules of professional conduct.
Justice G. Barry Anderson then asked whether Kennedy’s remarks may have violated Rule 8.4 d, which bars conduct prejudicial to the administration of justice. Newmark said he didn’t think so. He noted that the criminal charges against K.P. were dismissed after she completed her probation.
Justice David Lillehaug, meanwhile, highlighted Kennedy’s past disciplinary history. “It seems to me that your client isn’t getting the message from this court.”
Newmark responded that the most severe prior sanctions against Kennedy were the three 30-day suspensions and involved technical violations of trust account rules that did not directly harm clients.
For her part, Bovitz said that Kennedy had repeatedly denied the allegations against him until he was confronted with audio evidence and then blamed a faulty memory — a claim, she noted, that the referee rejected.
“Dishonesty alone is serious misconduct,” Bovitz said. “The respondent here seems to have difficulty telling the truth.”
She said Kennedy’s remarks to K.P. were “unwelcome and unwanted from day one” and that a two-year suspension is the minimum discipline warranted.
Kennedy, 74, has practiced law since 1976, mostly as a solo practitioner. From 1978 to 1986, he worked as a prosecutor for Olmsted County.