• January 19, 2018

Update (January 19, 2018): In the original post below, we decried the soft discipline of a Minnesota lawyer for serious misconduct. Although we are not trained in mental health diagnosis, in our view, the extraordinary misconduct could only be excused by mental illness.

Therefore, in the post below, we advocated for a stiffer penalty than our disciplinary authority recommended (a 60-day suspension).

We did not discuss the possibility of a mental health evaluation in the original post because the disciplinary authority imposed the requirement of a mental health evaluation. So that, at least, was covered.

Now the Minnesota Supreme Court has approved and agreed on the 60-day extension but reversed on the requirement of a mental health evaluation.

Rather than making our counter-argument from scratch here, we recommend the concurrence/dissent of Justice McKeig (linked here at page 27) making these exact points.

In addition, we have some further points (after the jump):

As for the mental health evaluation, the Supreme Court majority (Justices Gildea, Anderson, and Stras) held:

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. …Under these circumstances, we decline to require a mental-health evaluation as a condition of MacDonald’s probation.

Let that sink in.

First, can we agree that someone who causes one to wonder whether she might be suffering from mental illness is perhaps not the best arbiter of whether she needs a mental health examination? Someone who is suffering from bipolar disorder, incapacitating alcohol addiction, etc., might not “place her mental health at issue,” right?

Second, as Justice McKeague points out in her concurring and dissenting opinion, the referee who presided over the lawyer’s disciplinary proceeding is not a trained mental health evaluator. Imposing the obligation that the referee make factual findings to support a mental health evaluation seems backward.

Third, the lawyer’s misconduct was not only egregious but comes after 30 years of practice with no history of any such behavior previously. How can we NOT wonder whether there might be a mental health crisis root-cause?

Our court constantly reminds us: “The purpose of attorney discipline is not to punish the attorney, but rather to protect the public and the judicial system, and to deter future misconduct by the disciplined attorney as well as by other attorneys.” It is extremely difficult to reconcile this goal with a 60-day suspension and no mental health evaluation of Ms. Michelle Lowney MacDonald Shimota.

Original post (January 11, 2017): Take the time to read through the fact-finding and legal conclusions in an attorney discipline action brought against Minnesota lawyer, Michelle MacDonald and you will find see a model of contumacy (“stubborn and willful disobedience to authority”).

You will see a licensed Minnesota lawyer who appears to believe that the Minnesota legal system is illegitimate and not entitled to any respect.

You might also conclude that you see disruption and defiance, which, if allowed in our legal system, would destroy it.

And you will not see an isolated example of misconduct. You will see a pattern of willful defiance of courts’ authority. You will see multiple instances of counter-productive defiance, obstruction, and willful non-cooperation.

What do you think the discipline should be for the conduct described by the referee presiding over the petition for disciplinary action?

The referee who made these damning findings recommended that Ms. MacDonald “be suspended from the practice of law for a minimum of sixty (60) days followed by two years of probation.”

The purpose of disciplining Minnesota lawyers is not to punish them. It is to protect our court system from people who are unfit to serve in it.

Does anyone think that a 60-day suspension is enough for our disciplinary system to fulfill its purpose in this case?

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