Opinion
A21-0267
09-07-2022
IN RE Petition for DISCIPLINARY ACTION AGAINST Kevin T. DUFFY, a Minnesota Attorney, Registration No. 0134600.
ORDER
The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Kevin T. Duffy has committed professional misconduct warranting public discipline. Duffy failed to competently represent a client in a bankruptcy matter; failed to review relevant financial documents to assess whether the client's investment accounts were qualified exempt accounts, as he was retained to do; failed to communicate with the client or provide the client with information necessary to make informed decisions; and repeatedly made court filings on his client's behalf that claimed exemptions for funds without a legal basis, which increased the administrative costs the client paid to resolve the bankruptcy. See Minn. R. Prof. Conduct 1.1, 1.2(a), 1.4(a)(2)–(3), 1.4(b), 3.1, and 8.4(d). Duffy also described advance flat fees as non-refundable, routinely deposited clients’ cost and filing fee advances into a non-trust account, and deposited advance flat fees into a non-trust account without a compliant fee agreement. See Minn. R. Prof. Conduct 1.5(b)(3), 1.15(a), 1.15(c)(5). In addition, Duffy failed to refund advance filing fees and costs to three clients who obtained in forma pauperis status, which dishonestly deprived them of the benefit of that status; failed to inform one client that she had obtained in forma pauperis status or that he was not refunding her advance filing fees; and failed to explain the consequences of obtaining in forma pauperis status to another client and failed to explain the affidavit he asked the client to sign to conceal his misconduct during the Director's investigation. See Minn. R. Prof. Conduct 1.4(a)(3), 1.4(b), 1.15(a), 1.15(c)(4), 1.16(d), 8.4(c), 8.4(d). Finally, Duffy accepted funds from 14 clients for the specifically stated purpose of paying certain filing fees and costs, failed to deposit these advance filing fees and costs into trust, and failed to refund to these clients the amounts not incurred for filing fees and costs. See Minn. R. Prof. Conduct 1.5(a), 1.15(c)(4), and 1.16(d).
Duffy and the Director entered into a stipulation for discipline. In it, Duffy waived his procedural rights under Rule 14, Rules on Lawyers Professional Responsibility (RLPR), withdrew his previously filed answer, and unconditionally admitted the allegations of the petition, except for paragraphs 68–73 of the petition, which the Director withdrew. The parties jointly recommended that the appropriate discipline is a 90-day suspension, followed by 2 years of supervised probation.
We issued an order to show cause, directing the parties to explain why Duffy should not be subject to more severe discipline and to address whether Duffy has refunded any of the advance filing fees and costs that were not incurred to the 14 clients identified in the petition.
The parties have filed their responsive memoranda. In them, the parties state that Duffy has made refunds to 12 of the 14 clients identified in the petition and that the other two clients did not want a refund. Duffy also indicates that mitigating factors are present.
Based upon all the files, records, and proceedings herein,
IT IS HEREBY ORDERED THAT:
1. Respondent Kevin T. Duffy is suspended from the practice of law for a minimum of 90 days, effective 14 days from the date of this order.
2. Respondent shall comply with Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals), and shall pay $900 in costs under Rule 24, RLPR.
3. Upon reinstatement to the practice of law, respondent shall be placed on probation for a period of 2 years, upon the following terms and conditions:
a. Respondent shall abide by the Minnesota Rules of Professional Conduct.
b. Respondent shall cooperate fully with the Director's Office in its efforts to monitor compliance with this probation. Respondent shall promptly respond to the Director's correspondence by its due date. Respondent shall provide to the Director a current mailing address and shall immediately notify the Director of any change of address. Respondent shall cooperate with the Director's investigation of any allegations of unprofessional conduct that may come to the Director's attention. Upon the Director's request, respondent shall provide authorization for release of information and documentation to verify compliance with the terms of this probation.
c. Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Respondent shall provide to the Director the names of four attorneys who have agreed to be nominated as respondent's supervisor within two weeks from the date of the court's order reinstating respondent to the practice of law. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, the respondent shall on the first day of each month provide the Director with an inventory of active client files described in
paragraph (d) below. Respondent shall make active client files available to the Director upon request.
d. Respondent shall cooperate fully with the supervisor in the supervisor's efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent's supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
e. Respondent shall initiate and maintain office procedures which ensure that there are prompt responses to correspondence, telephone calls, and other important communications from clients, courts, and other persons interested in matters which respondent is handling, and which will ensure that respondent regularly reviews each and every file and completes legal matters on a timely basis.
f. Within 30 days from the date of the court's order reinstating respondent to the practice of law, respondent shall provide to the Director and to the probation supervisor, if any, a written plan outlining office procedures designed to ensure that respondent is in compliance with probation requirements. Respondent shall provide progress reports as requested.
g. Respondent shall maintain trust account books and records in compliance with Minnesota Rule of Professional Conduct 1.15 and Appendix 1 to those rules. These books and records shall include the following: client subsidiary ledgers, checkbook register, monthly trial balance reports, monthly reconciliation reports, bank statements, canceled checks (if they are provided with the bank statements), duplicate deposit slips, bank reports of interest, service charges and interest payments to the Minnesota IOLTA Program, and bank wire, electronic or telephone transfer confirmations. Such books and records shall be made available to the Director within 30 days of the date of the court's order reinstating respondent to the practice of law and thereafter shall be made available to the Director at such intervals as the Director deems necessary to determine compliance; however, respondent shall not be expected to provide the records more than once per quarter.
4. Respondent shall be eligible for reinstatement to the practice of law following the expiration of the suspension period provided that, not less than 15 days before the end of the suspension period, respondent files with the Clerk of the Appellate Courts and serves upon the Director an affidavit establishing that he is current in continuing legal education requirements, has complied with Rules 24 and 26, RLPR, and has complied with any other conditions for reinstatement imposed by the court.
5. Within 1 year of the date of this order, respondent shall file with the Clerk of the Appellate Courts and serve upon the Director proof of successful completion of the written examination required for admission to the practice of law by the State Board of Law Examiners on the subject of professional responsibility. See Rule 4.A.(5), Rules for Admission to the Bar (requiring evidence that an applicant has successfully completed the Multistate Professional Responsibility Examination). Failure to timely file the required documentation shall result in automatic suspension, as provided in Rule 18(e)(3), RLPR.
BY THE COURT:
/s/ __________
Natalie E. Hudson
Associate Justice